Admin Law Cases Pol Parties.docx

EN BANC [G.R. No. 188920. February 16, 2010.] JOSE L. ATIENZA, JR., MATIAS V. DEFENSOR, JR., RODOLFO G. VALENCIA, DANILO E. SUAREZ, SOLOMON R. CHUNGALAO, SALVACION ZALDIVARPEREZ, HARLIN CAST-ABAYON, MELVIN G. MACUSI AND ELEASAR P. QUINTO, petitioners, vs. COMMISSION ON ELECTIONS, MANUEL A. ROXAS II, FRANKLIN M. DRILON and J.R. NEREUS O. ACOSTA, respondents.

DECISION

ABAD, J p: This petition is an offshoot of two earlier cases already resolved by the Court involving a leadership dispute within a political party. In this case, the petitioners question their expulsion from that party and assail the validity of the election of new party leaders conducted by the respondents. Statement of the Facts and the Case For a better understanding of the controversy, a brief recall of the preceding events is in order. On July 5, 2005 respondent Franklin M. Drilon (Drilon), as erstwhile president of the Liberal Party (LP), announced his party's withdrawal of support for the administration of President Gloria Macapagal-Arroyo. But petitioner Jose L. Atienza, Jr. (Atienza), LP Chairman, and a number of party members denounced Drilon's move, claiming that he made the announcement without consulting his party. On March 2, 2006 petitioner Atienza hosted a party conference to supposedly discuss local autonomy and party matters but, when convened, the assembly proceeded to declare all positions in the LP's ruling body vacant and elected new officers, with Atienza as LP president. Respondent Drilon immediately filed a petition 1 with the Commission on Elections (COMELEC) to nullify the elections. He claimed that it was illegal considering that the party's electing bodies, the National Executive Council (NECO) and the National Political Council (NAPOLCO), were not properly convened. Drilon also claimed that under the amended LP Constitution, 2 party officers were elected to a fixed three-year term that was yet to end on November 30, 2007. aSEHDA On the other hand, petitioner Atienza claimed that the majority of the LP's NECO and NAPOLCO attended the March 2, 2006 assembly. The election of new officers on that occasion could be likened to "people power," wherein the LP majority removed respondent Drilon as president by direct action. Atienza also said that the amendments 3 to the original LP Constitution, or the Salonga Constitution, giving LP officers a fixed three-year term, had not been properly ratified. Consequently, the term of Drilon and the other officers already ended on July 24, 2006. On October 13, 2006, the COMELEC issued a resolution, 4 partially granting respondent Drilon's petition. It annulled the March 2, 2006 elections and ordered the holding of a new election under COMELEC supervision. It held that the election of petitioner Atienza and the others with him was invalid since the electing assembly did not convene in accordance with the Salonga Constitution. But, since the amendments to the Salonga Constitution had not been properly

ratified, Drilon's term may be deemed to have ended. Thus, he held the position of LP president in a holdover capacity until new officers were elected. Both sides of the dispute came to this Court to challenge the COMELEC rulings. On April 17, 2007 a divided Court issued a resolution, 5granting respondent Drilon's petition and denying that of petitioner Atienza. The Court held, through the majority, that the COMELEC had jurisdiction over the intra-party leadership dispute; that the Salonga Constitution had been validly amended; and that, as a consequence, respondent Drilon's term as LP president was to end only on November 30, 2007. Subsequently, the LP held a NECO meeting to elect new party leaders before respondent Drilon's term expired. Fifty-nine NECO members out of the 87 who were supposedly qualified to vote attended. Before the election, however, several persons associated with petitioner Atienza sought to clarify their membership status and raised issues regarding the composition of the NECO. Eventually, that meeting installed respondent Manuel A. Roxas II (Roxas) as the new LP president. On January 11, 2008 petitioners Atienza, Matias V. Defensor, Jr., Rodolfo G. Valencia, Danilo E. Suarez, Solomon R. Chungalao, Salvacion Zaldivar-Perez, Harlin Cast-Abayon, Melvin G. Macusi, and Eleazar P. Quinto, filed a petition for mandatory and prohibitory injunction 6 before the COMELEC against respondents Roxas, Drilon and J.R. Nereus O. Acosta, the party secretary general. Atienza, et al. sought to enjoin Roxas from assuming the presidency of the LP, claiming that the NECO assembly which elected him was invalidly convened. They questioned the existence of a quorum and claimed that the NECO composition ought to have been based on a list appearing in the party's 60th Anniversary Souvenir Program. Both Atienza and Drilon adopted that list as common exhibit in the earlier cases and it showed that the NECO had 103 members. EHTISC Petitioners Atienza, et al. also complained that Atienza, the incumbent party chairman, was not invited to the NECO meeting and that some members, like petitioner Defensor, were given the status of "guests" during the meeting. Atienza's allies allegedly raised these issues but respondent Drilon arbitrarily thumbed them down and "railroaded" the proceedings. He suspended the meeting and moved it to another room, where Roxas was elected without notice to Atienza's allies. On the other hand, respondents Roxas, et al. claimed that Roxas' election as LP president faithfully complied with the provisions of the amended LP Constitution. The party's 60th Anniversary Souvenir Program could not be used for determining the NECO members because supervening events changed the body's number and composition. Some NECO members had died, voluntarily resigned, or had gone on leave after accepting positions in the government. Others had lost their re-election bid or did not run in the May 2007 elections, making them ineligible to serve as NECO members. LP members who got elected to public office also became part of the NECO. Certain persons of national stature also became NECO members upon respondent Drilon's nomination, a privilege granted the LP president under the amended LP Constitution. In other words, the NECO membership was not fixed or static; it changed due to supervening circumstances. Respondents Roxas, et al. also claimed that the party deemed petitioners Atienza, Zaldivar-Perez, and Cast-Abayon resigned for holding the illegal election of LP officers on March 2, 2006. This was pursuant to a March 14, 2006 NAPOLCO resolution that NECO subsequently ratified. Meanwhile, certain NECO members, like petitioners Defensor, Valencia, and Suarez, forfeited their party membership when they ran under other political parties during the May 2007 elections. They were dropped from the roster of LP members. On June 18, 2009 the COMELEC issued the assailed resolution denying petitioners Atienza, et al.'s petition. It noted that the May 2007 elections necessarily changed the composition of the NECO since the amended LP Constitution explicitly made incumbent senators, members of

the House of Representatives, governors and mayors members of that body. That some lost or won these positions in the May 2007 elections affected the NECO membership. Petitioners failed to prove that the NECO which elected Roxas as LP president was not properly convened. As for the validity of petitioners Atienza, et al.'s expulsion as LP members, the COMELEC observed that this was a membership issue that related to disciplinary action within the political party. The COMELEC treated it as an internal party matter that was beyond its jurisdiction to resolve. DHESca Without filing a motion for reconsideration of the COMELEC resolution, petitioners Atienza, et al. filed this petition for certiorari under Rule 65. The Issues Presented Respondents Roxas, et al. raise the following threshold issues: 1. Whether or not the LP, which was not impleaded in the case, is an indispensable party; and 2. Whether or not petitioners Atienza, et al., as ousted LP members, have the requisite legal standing to question Roxas' election. Petitioners Atienza, et al., on the other hand, raise the following issues: 3. Whether or not the COMELEC gravely abused its discretion when it upheld the NECO membership that elected respondent Roxas as LP president; 4. Whether or not the COMELEC gravely abused its discretion when it resolved the issue concerning the validity of the NECO meeting without first resolving the issue concerning the expulsion of Atienza, et al. from the party; and 5. Whether or not respondents Roxas, et al. violated petitioners Atienza, et al.'s constitutional right to due process by the latter's expulsion from the party. The Court's Ruling One. Respondents Roxas, et al. assert that the Court should dismiss the petition for failure of petitioners Atienza, et al. to implead the LP as an indispensable party. Roxas, et al. point out that, since the petition seeks the issuance of a writ of mandatory injunction against the NECO, the controversy could not be adjudicated with finality without making the LP a party to the case. 7 But petitioners Atienza, et al.'s causes of action in this case consist in respondents Roxas, et al.'s disenfranchisement of Atienza, et al.from the election of party leaders and in the illegal election of Roxas as party president. Atienza, et al. were supposedly excluded from the elections by a series of "despotic acts" of Roxas, et al., who controlled the proceedings. Among these acts are Atienza, et al.'s expulsion from the party, their exclusion from the NECO, and respondent Drilon's "railroading" of election proceedings. Atienza, et al. attributed all these illegal and prejudicial acts to Roxas, et al. CcAIDa Since no wrong had been imputed to the LP nor had some affirmative relief been sought from it, the LP is not an indispensable party. Petitioners Atienza, et al.'s prayer for the undoing of respondents Roxas, et al.'s acts and the reconvening of the NECO are directed against Roxas, et al. Two. Respondents Roxas, et al. also claim that petitioners Atienza, et al. have no legal standing to question the election of Roxas as LP president because they are no longer LP members, having been validly expelled from the party or having joined other political parties. 8 As non-members, they have no stake in the outcome of the action.

But, as the Court held in David v. Macapagal-Arroyo, 9 legal standing in suits is governed by the "real parties-in-interest" rule under Section 2, Rule 3 of the Rules of Court. This states that "every action must be prosecuted or defended in the name of the real party-in-interest." And "real party-in-interest" is one who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit. In other words, the plaintiff's standing is based on his own right to the relief sought. In raising petitioners Atienza, et al.'s lack of standing as a threshold issue, respondents Roxas, et al. would have the Court hypothetically assume the truth of the allegations in the petition. Here, it is precisely petitioners Atienza, et al.'s allegations that respondents Roxas, et al. deprived them of their rights as LP members by summarily excluding them from the LP roster and not allowing them to take part in the election of its officers and that not all who sat in the NECO were in the correct list of NECO members. If Atienza, et al.'s allegations were correct, they would have been irregularly expelled from the party and the election of officers, void. Further, they would be entitled to recognition as members of good standing and to the holding of a new election of officers using the correct list of NECO members. To this extent, therefore, Atienza, et al. who want to take part in another election would stand to be benefited or prejudiced by the Court's decision in this case. Consequently, they have legal standing to pursue this petition. Three. In assailing respondent Roxas' election as LP president, petitioners Atienza, et al. claim that the NECO members allowed to take part in that election should have been limited to those in the list of NECO members appearing in the party's 60th Anniversary Souvenir Program. Atienza, et al. allege that respondent Drilon, as holdover LP president, adopted that list in the earlier cases before the COMELEC and it should thus bind respondents Roxas, et al. The Court's decision in the earlier cases, said Atienza, et al., anointed that list for the next party election. Thus, Roxas, et al. in effect defied the Court's ruling when they removed Atienza as party chairman and changed the NECO's composition. 10 DSAEIT But the list of NECO members appearing in the party's 60th Anniversary Souvenir Program was drawn before the May 2007 elections. After the 2007 elections, changes in the NECO membership had to be redrawn to comply with what the amended LP Constitution required. Respondent Drilon adopted the souvenir program as common exhibit in the earlier cases only to prove that the NECO, which supposedly elected Atienza as new LP president on March 2, 2006, had been improperly convened. It cannot be regarded as an immutable list, given the nature and character of the NECO membership. Nothing in the Court's resolution in the earlier cases implies that the NECO membership should be pegged to the party's 60th Anniversary Souvenir Program. There would have been no basis for such a position. The amended LP Constitution did not intend the NECO membership to be permanent. Its Section 27 11 provides that the NECO shall include all incumbent senators, members of the House of Representatives, governors, and mayors who were LP members in good standing for at least six months. It follows from this that with the national and local elections taking place in May 2007, the number and composition of the NECO would have to yield to changes brought about by the elections. Former NECO members who lost the offices that entitled them to membership had to be dropped. Newly elected ones who gained the privilege because of their offices had to come in. Furthermore, former NECO members who passed away, resigned from the party, or went on leave could not be expected to remain part of the NECO that convened and held elections on November 26, 2007. In addition, Section 27 of the amended LP Constitution expressly authorized the party president to nominate "persons of national stature" to the NECO. Thus, petitioners Atienza, et al. cannot validly object to the admission of 12 NECO members nominated by respondent Drilon when he was LP president. Even if this move could be regarded as respondents Roxas, et al.'s way of ensuring their election as party officers, there was certainly nothing irregular about the act under the amended LP Constitution.

The NECO was validly convened in accordance with the amended LP Constitution. Respondents Roxas, et al. explained in details how they arrived at the NECO composition for the purpose of electing the party leaders. 12 The explanation is logical and consistent with party rules. Consequently, the COMELEC did not gravely abuse its discretion when it upheld the composition of the NECO that elected Roxas as LP president. ASHICc Petitioner Atienza claims that the Court's resolution in the earlier cases recognized his right as party chairman with a term, like respondent Drilon, that would last up to November 30, 2007 and that, therefore, his ouster from that position violated the Court's resolution. But the Court's resolution in the earlier cases did not preclude the party from disciplining Atienza under Sections 29 13 and 46 14 of the amended LP Constitution. The party could very well remove him or any officer for cause as it saw fit. Four. Petitioners Atienza, et al. lament that the COMELEC selectively exercised its jurisdiction when it ruled on the composition of the NECO but refused to delve into the legality of their expulsion from the party. The two issues, they said, weigh heavily on the leadership controversy involved in the case. The previous rulings of the Court, they claim, categorically upheld the jurisdiction of the COMELEC over intra-party leadership disputes. 15 But, as respondents Roxas, et al. point out, the key issue in this case is not the validity of the expulsion of petitioners Atienza, et al. from the party, but the legitimacy of the NECO assembly that elected respondent Roxas as LP president. Given the COMELEC's finding as upheld by this Court that the membership of the NECO in question complied with the LP Constitution, the resolution of the issue of whether or not the party validly expelled petitioners cannot affect the election of officers that the NECO held. While petitioners Atienza, et al. claim that the majority of LP members belong to their faction, they did not specify who these members were and how their numbers could possibly affect the composition of the NECO and the outcome of its election of party leaders. Atienza, et al.has not bothered to assail the individual qualifications of the NECO members who voted for Roxas. Nor did Atienza, et al. present proof that the NECO had no quorum when it then assembled. In other words, the claims of Atienza, et al. were totally unsupported by evidence. Consequently, petitioners Atienza, et al. cannot claim that their expulsion from the party impacts on the party leadership issue or on the election of respondent Roxas as president so that it was indispensable for the COMELEC to adjudicate such claim. Under the circumstances, the validity or invalidity of Atienza, et al.'s expulsion was purely a membership issue that had to be settled within the party. It is an internal party matter over which the COMELEC has no jurisdiction. What is more, some of petitioner Atienza's allies raised objections before the NECO assembly regarding the status of members from their faction. Still, the NECO proceeded with the election, implying that its membership, whose composition has been upheld, voted out those objections. HCaDIS The COMELEC's jurisdiction over intra-party disputes is limited. It does not have blanket authority to resolve any and all controversies involving political parties. Political parties are generally free to conduct their activities without interference from the state. The COMELEC may intervene in disputes internal to a party only when necessary to the discharge of its constitutional functions. The COMELEC's jurisdiction over intra-party leadership disputes has already been settled by the Court. The Court ruled in Kalaw v. Commission on Elections 16 that the COMELEC's powers and functions under Section 2, Article IX-C of the Constitution, "include the ascertainment of the identity of the political party and its legitimate officers responsible for its acts." The Court also declared in another case 17that the COMELEC's power to register political parties necessarily involved the determination of the persons who must act on its behalf. Thus, the

COMELEC may resolve an intra-party leadership dispute, in a proper case brought before it, as an incident of its power to register political parties. The validity of respondent Roxas' election as LP president is a leadership issue that the COMELEC had to settle. Under the amended LP Constitution, the LP president is the issuing authority for certificates of nomination of party candidates for all national elective positions. It is also the LP president who can authorize other LP officers to issue certificates of nomination for candidates to local elective posts. 18 In simple terms, it is the LP president who certifies the official standard bearer of the party. The law also grants a registered political party certain rights and privileges that will redound to the benefit of its official candidates. It imposes, too, legal obligations upon registered political parties that have to be carried out through their leaders. The resolution of the leadership issue is thus particularly significant in ensuring the peaceful and orderly conduct of the elections. 19 Five. Petitioners Atienza, et al. argue that their expulsion from the party is not a simple issue of party membership or discipline; it involves a violation of their constitutionally-protected right to due process of law. They claim that the NAPOLCO and the NECO should have first summoned them to a hearing before summarily expelling them from the party. According to Atienza, et al., proceedings on party discipline are the equivalent of administrative proceedings 20 and are, therefore, covered by the due process requirements laid down in Ang Tibay v. Court of Industrial Relations. 21 But the requirements of administrative due process do not apply to the internal affairs of political parties. The due process standards set in Ang Tibay cover only administrative bodies created by the state and through which certain governmental acts or functions are performed. An administrative agency or instrumentality "contemplates an authority to which the state delegates governmental power for the performance of a state function." 22 The constitutional limitations that generally apply to the exercise of the state's powers thus, apply too, to administrative bodies. aEDCSI The constitutional limitations on the exercise of the state's powers are found in Article III of the Constitution or the Bill of Rights. The Bill of Rights, which guarantees against the taking of life, property, or liberty without due process under Section 1 is generally a limitation on the state's powers in relation to the rights of its citizens. The right to due process is meant to protect ordinary citizens against arbitrary government action, but not from acts committed by private individuals or entities. In the latter case, the specific statutes that provide reliefs from such private acts apply. The right to due process guards against unwarranted encroachment by the state into the fundamental rights of its citizens and cannot be invoked in private controversies involving private parties. 23 Although political parties play an important role in our democratic set-up as an intermediary between the state and its citizens, it is still a private organization, not a state instrument. The discipline of members by a political party does not involve the right to life, liberty or property within the meaning of the due process clause. An individual has no vested right, as against the state, to be accepted or to prevent his removal by a political party. The only rights, if any, that party members may have, in relation to other party members, correspond to those that may have been freely agreed upon among themselves through their charter, which is a contract among the party members. Members whose rights under their charter may have been violated have recourse to courts of law for the enforcement of those rights, but not as a due process issue against the government or any of its agencies. But even when recourse to courts of law may be made, courts will ordinarily not interfere in membership and disciplinary matters within a political party. A political party is free to conduct its internal affairs, pursuant to its constitutionally-protected right to free association. InSinaca v. Mula, 24 the Court said that judicial restraint in internal party matters serves the public interest by

allowing the political processes to operate without undue interference. It is also consistent with the state policy of allowing a free and open party system to evolve, according to the free choice of the people. 25 To conclude, the COMELEC did not gravely abuse its discretion when it upheld Roxas' election as LP president but refused to rule on the validity of Atienza, et al.'s expulsion from the party. While the question of party leadership has implications on the COMELEC's performance of its functions under Section 2, Article IX-C of the Constitution, the same cannot be said of the issue pertaining to Atienza, et al.'s expulsion from the LP. Such expulsion is for the moment an issue of party membership and discipline, in which the COMELEC cannot intervene, given the limited scope of its power over political parties. DcITaC WHEREFORE, the Court DISMISSES the petition and UPHOLDS the Resolution of the Commission on Elections dated June 18, 2009 in COMELEC Case SPP 08-001. SO ORDERED. ||| (Atienza v. Commission on Elections, G.R. No. 188920, [February 16, 2010], 626 PHIL 654-674) EN BANC [G.R. No. 179271. April 21, 2009.] BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT), petitioner,vs.COMMISSION ONELECTIONS (sitting as the National Board of Canvassers), respondent. ARTS BUSINESS AND SCIENCE PROFESSIONALS, intervenor. AANGAT TAYO, intervenor. COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC. (SENIOR CITIZENS), intervenor. [G.R. No. 179295. April 21, 2009.] BAYAN MUNA, ADVOCACY FOR TEACHER EMPOWERMENT THROUGH ACTION, COOPERATION AND HARMONY TOWARDS EDUCATIONAL REFORMS, INC.,and ABONO, petitioners, vs. COMMISSION ON ELECTIONS, respondent.

DECISION

CARPIO, J p: The Case Petitioner in G.R. No. 179271 — Barangay Association for National Advancement and Transparency (BANAT) — in a petition for certiorariand mandamus, 1 assails the Resolution 2 promulgated on 3 August 2007 by the Commission on Elections (COMELEC) in NBC

No. 07-041 (PL). The COMELEC's resolution in NBC No. 07-041 (PL) approved the recommendation of Atty. Alioden D. Dalaig, Head of the National Board of Canvassers (NBC) Legal Group, to deny the petition of BANAT for being moot. BANAT filed before the COMELEC En Banc, acting as NBC, aPetition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution. The following are intervenors in G.R. No. 179271: Arts Business and Science Professionals (ABS),Aangat Tayo (AT),and Coalition of Associations of Senior Citizens in the Philippines, Inc. (Senior Citizens). Petitioners in G.R. No. 179295 — Bayan Muna, Abono, and Advocacy for Teacher Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms (A Teacher) — in a petition for certiorari with mandamus and prohibition, 3 assails NBC Resolution No. 07-60 4 promulgated on 9 July 2007. NBC No. 07-60 made a partial proclamation of parties, organizations and coalitions that obtained at least two percent of the total votes cast under the Party-List System. The COMELEC announced that, upon completion of the canvass of the partylist results, it would determine the total number of seats of each winning party, organization, or coalition in accordance with Veterans Federation Party v. COMELEC 5 (Veterans). Estrella DL Santos, in her capacity as President and First Nominee of the Veterans Freedom Party, filed a motion to intervene in both G.R. Nos. 179271 and 179295. The Facts The 14 May 2007 elections included the elections for the party-list representatives. The COMELEC counted 15,950,900 votes cast for 93 parties under the Party-List System. 6 On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution,docketed as NBC No. 07-041 (PL) before the NBC. BANAT filed its petition because "[t]he Chairman and the Members of the [COMELEC] have recently been quoted in the national papers that the [COMELEC] is duty bound to and shall implement the Veterans ruling, that is, would apply the Panganiban formula in allocating party-list seats". 7 There were no intervenors in BANAT's petition before the NBC. BANAT filed a memorandumon 19 July 2007. aTEACS On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution No. 0760. NBC Resolution No. 07-60 proclaimed thirteen (13) parties as winners in the partylist elections, namely: Buhay Hayaan Yumabong (BUHAY),Bayan Muna, Citizens' Battle Against Corruption (CIBAC),Gabriela's Women Party (Gabriela),Association of Philippine Electric Cooperatives (APEC),A Teacher, Akbayan! Citizen's Action Party (AKBAYAN),Alagad, Luzon Farmers Party (BUTIL),Cooperative-Natco Network Party (COOP-NATCCO),Anak Pawis, Alliance of Rural Concerns (ARC),and Abono. We quote NBC Resolution No. 07-60 in its entirety below: WHEREAS, the Commission on Elections sitting en banc as National Board of Canvassers, thru its Sub-Committee for Party-List, as of 03 July 2007, had officially canvassed, in open and public proceedings, a total of fifteen million two hundred eighty three thousand six hundred fifty-nine (15,283,659) votes under the PartyList System of Representation, in connection with the National and Local Elections conducted last 14 May 2007; WHEREAS, the study conducted by the Legal and Tabulation Groups of the National Board of Canvassers reveals that the projected/maximum total party-list votes cannot go any higher than sixteen million seven hundred twenty three thousand one hundred twenty-one (16,723,121) votes given the following statistical data: Projected/Maximum Party-List Votes for May 2007 Elections

i.

Total party-list votes already canvassed/ Tabulated

15,283,659

ii.

Total party-list votes remaining uncanvassed/ untabulated (i.e. canvass deferred)

1,337,032

iii.

Maximum party-list votes (based on 100% outcome) from areas not yet submitted for canvass (Bogo, Cebu; Bais City; Pantar, Lanao del Norte; and Pagalungan, Maguindanao) Maximum Total Party-List Votes

102,430

16,723,121

WHEREAS, Section 11 of Republic Act No. 7941 (Party-List System Act) provides in part: The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: provided, that those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: provided, finally, that each party, organization, or coalition shall be entitled to not more than three (3) seats. WHEREAS, for the 2007 Elections, based on the above projected total of party-list votes, the presumptive two percent (2%) threshold can be pegged at three hundred thirty four thousand four hundred sixty-two (334,462) votes; WHEREAS, the Supreme Court, in Citizen's Battle Against Corruption (CIBAC) versus COMELEC, reiterated its ruling in Veterans Federation Partyversus COMELEC adopting a formula for the additional seats of each party, organization or coalition receiving more than the required two percent (2%) votes, stating that the same shall be determined only after all party-list ballots have been completely canvassed; WHEREAS, the parties, organizations, and coalitions that have thus far garnered at least three hundred thirty four thousand four hundred sixty-two (334,462) votes are as follows: RANK

PARTY/ORGANIZATION/ COALITION

VOTES RECEIVED

1 2 3 4 5 6 7 8 9 10 11 12

BUHAY BAYAN MUNA CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD BUTIL COOP-NATCO BATAS ANAK PAWIS

1,163,218 972,730 760,260 610,451 538,971 476,036 470,872 423,076 405,052 390,029 386,361 376,036

13 ARC 338,194 14 ABONO 337,046 WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS),against which an URGENT PETITION FOR CANCELLATION/REMOVAL OF REGISTRATION AND DISQUALIFICATION OF PARTY-LIST NOMINEE (With Prayer for the Issuance of Restraining Order) has been filed before the Commission, docketed as SPC No. 07-250, all the parties, organizations and coalitions included in the aforementioned list are therefore entitled to at least one seat under the party-list system of representation in the meantime. SATDHE NOW, THEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941, and other election laws, the Commission on Elections, sitting en banc as the National Board of Canvassers, hereby RESOLVES to PARTIALLY PROCLAIM, subject to certain conditions set forth below, the following parties, organizations and coalitions participating under the Party-List System: 1 2 3 4 5

Buhay Hayaan Yumabong BUHAY Bayan Muna BAYAN MUNA Citizens Battle Against Corruption CIBAC Gabriela Women's Party GABRIELA Association of Philippine Electric APEC Cooperatives 6 Advocacy for Teacher A TEACHER Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms, Inc. 7 Akbayan! Citizen's Action Party AKBAYAN 8 Alagad ALAGAD 9 Luzon Farmers Party BUTIL 10 Cooperative-Natco Network Party COOP-NATCCO 11 Anak Pawis ANAKPAWIS 12 Alliance of Rural Concerns ARC 13 Abono ABONO This is without prejudice to the proclamation of other parties, organizations, or coalitions which may later on be established to have obtained at least two percent (2%) of the total actual votes cast under the Party-List System. The total number of seats of each winning party, organization or coalition shall be determined pursuant to Veterans Federation Party versusCOMELEC formula upon completion of the canvass of the party-list results. The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS) is hereby deferred until final resolution of SPC No. 07-250, in order not to render the proceedings therein moot and academic. Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes shall likewise be held in abeyance until final resolution of their respective cases. Let the Clerk of the Commission implement this Resolution, furnishing a copy thereof to the Speaker of the House of Representatives of the Philippines.

SO ORDERED. 8 (Emphasis in the original) Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC, promulgated NBC Resolution No. 07-72, which declared the additional seats allocated to the appropriate parties. We quote from the COMELEC's interpretation of the Veterans formula as found in NBC Resolution No. 07-72: WHEREAS, on July 9, 2007, the Commission on Elections sitting en banc as the National Board of Canvassers proclaimed thirteen (13) qualified parties, organization[s] and coalitions based on the presumptive two percent (2%) threshold of 334,462 votes from the projected maximum total number of party-list votes of 16,723,121, and were thus given one (1) guaranteed party-list seat each; WHEREAS, per Report of the Tabulation Group and Supervisory Committee of the National Board of Canvassers, the projected maximum total party-list votes, as of July 11, 2007, based on the votes actually canvassed, votes canvassed but not included in Report No. 29, votes received but uncanvassed, and maximum votes expected for Pantar, Lanao del Norte, is 16,261,369; and that the projected maximum total votes for the thirteen (13) qualified parties, organizations and coalition[s] are as follows: Party-List

Projected total number of votes

1 BUHAY 1,178,747 2 BAYAN MUNA 977,476 3 CIBAC 755,964 4 GABRIELA 621,718 5 APEC 622,489 6 A TEACHER 492,369 7 AKBAYAN 462,674 8 ALAGAD 423,190 9 BUTIL 409,298 10 COOP-NATCO 412,920 11 ANAKPAWIS 370,165 12 ARC 375,846 13 ABONO 340,151 WHEREAS, based on the above Report, Buhay Hayaan Yumabong (Buhay) obtained the highest number of votes among the thirteen (13) qualified parties, organizations and coalitions, making it the "first party" in accordance with Veterans Federation Party versus COMELEC,reiterated in Citizen's Battle Against Corruption (CIBAC) versus COMELEC; acITSD WHEREAS, qualified parties, organizations and coalitions participating under the party-list system of representation that have obtained one guaranteed (1) seat may be entitled to an additional seat or seats based on the formula prescribed by the Supreme Court in Veterans; WHEREAS, in determining the additional seats for the "first party",the correct formula as expressed in Veterans,is: Number of votes of first party Proportion of votes of first ————————————— = party relative to total votes for Total votes for party-list system party-list system wherein the proportion of votes received by the first party (without rounding off) shall entitle it to additional seats:

Proportion of votes received by the first party

Additional seats

Equal to or at least 6% Two (2) additional seats Equal to or greater than 4% but lessthan 6% One (1) additional seat Less than 4% No additional seat WHEREAS, applying the above formula, Buhay obtained the following percentage: 1,178,747 ————— = 16,261,369 which entitles it to two (2) additional seats.

0.07248 or 7.2%

WHEREAS, in determining the additional seats for the other qualified parties, organizations and coalitions, the correct formula as expressed inVeterans and reiterated in CIBAC is, as follows: No. of votes of concerned party Additional seats for = —————— x a concerned party No. of votes of first party WHEREAS, applying the above formula, the results are as follows: Party List

Percentage

No. of additional seats allocated to first party

Additional Seat

BAYAN MUNA 1.65 1 CIBAC 1.28 1 GABRIELA 1.05 1 APEC 1.05 1 A TEACHER 0.83 0 AKBAYAN 0.78 0 ALAGAD 0.71 0 BUTIL 0.69 0 COOP-NATCO 0.69 0 ANAKPAWIS 0.62 0 ARC 0.63 0 ABONO 0.57 0 NOW THEREFORE, by virtue of the powers vested in it by the Constitution, Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941 and other elections laws, the Commission on Elections en banc sitting as the National Board of Canvassers, hereby RESOLVED, as it hereby RESOLVES, to proclaim the following parties, organizations or coalitions as entitled to additional seats, to wit: Party List

Additional Seats

BUHAY 2 BAYAN MUNA 1 CIBAC 1 GABRIELA 1 APEC 1 This is without prejudice to the proclamation of other parties, organizations or coalitions which may later on be established to have obtained at least two per cent (2%) of the total votes cast under the party-list system to entitle them to one (1)

guaranteed seat, or to the appropriate percentage of votes to entitle them to one (1) additional seat. Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes shall likewise be held in abeyance until final resolution of their respective cases. Let the National Board of Canvassers Secretariat implement this Resolution, furnishing a copy hereof to the Speaker of the House of Representatives of the Philippines. SO ORDERED. 9 Acting on BANAT's petition, the NBC promulgated NBC Resolution No. 07-88 on 3 August 2007, which reads as follows: This pertains to the Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution filed by the Barangay Association for National Advancement and Transparency (BANAT). Acting on the foregoing Petition of the Barangay Association for National Advancement and Transparency (BANAT) party-list, Atty. Alioden D. Dalaig, Head, National Board of Canvassers Legal Group submitted his comments/observations and recommendation thereon [NBC 07-041 (PL)],which reads: COMMENTS/OBSERVATIONS: Petitioner Barangay Association for National Advancement and Transparency (BANAT), in its Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution prayed for the following reliefs, to wit: 1. That the full number — twenty percent (20%) — of Party-List representatives as mandated by Section 5, Article VI of theConstitution shall be proclaimed. CaDEAT 2. Paragraph (b), Section 11 of RA 7941 which prescribes the 2% threshold votes, should be harmonized with Section 5, Article VI of the Constitution and with Section 12 of the same RA 7941 in that it should be applicable only to the first party-list representative seats to be allotted on the basis of their initial/first ranking. 3. The 3-seat limit prescribed by RA 7941 shall be applied; and 4. Initially, all party-list groups shall be given the number of seats corresponding to every 2% of the votes they received and the additional seats shall be allocated in accordance with Section 12 of RA 7941, that is, in proportion to the percentage of votes obtained by each party-list group in relation to the total nationwide votes cast in the party-list election, after deducting the corresponding votes of those which were allotted seats under the 2% threshold rule. In fine, the formula/procedure prescribed in the "ALLOCATION OF PARTY-LIST SEATS, ANNEX "A" of COMELEC RESOLUTION 2847 dated 25 June 1996, shall be used for [the] purpose of determining how many seats shall be proclaimed, which party-list groups are entitled to representative seats and how many of their nominees shall seat [sic].

5. In the alternative, to declare as unconstitutional Section 11 of Republic Act No. 7941 and that the procedure in allocating seats for party-list representative prescribed by Section 12 of RA 7941 shall be followed. RECOMMENDATION: The petition of BANAT is now moot and academic. The Commission En Banc in NBC Resolution No. 07-60 promulgated July 9, 2007 re "In the Matter of the Canvass of Votes and Partial Proclamation of the Parties, Organizations and Coalitions Participating Under the Party-List System During the May 14, 2007 National and Local Elections" resolved among others that the total number of seats of each winning party, organization or coalition shall be determined pursuant to the Veterans Federation Party versus COMELEC formula upon completion of the canvass of the partylist results". WHEREFORE, premises considered, the National Board of Canvassers RESOLVED, as it hereby RESOLVES, to approve and adopt the recommendation of Atty. Alioden D. Dalaig, Head, NBC Legal Group, to DENY the herein petition of BANAT for being moot and academic. Let the Supervisory Committee implement this resolution. SO ORDERED. 10 BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC Resolution No. 07-88. BANAT did not file a motion for reconsideration of NBC Resolution No. 07-88. On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as NBC, to reconsider its decision to use the Veteransformula as stated in its NBC Resolution No. 07-60 because the Veterans formula is violative of the Constitution and of Republic Act No. 7941 (R.A. No. 7941). On the same day, the COMELEC denied reconsideration during the proceedings of the NBC. 11 Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the COMELEC proclaimed three other party-list organizations as qualified parties entitled to one guaranteed seat under the Party-List System: Agricultural Sector Alliance of the Philippines, Inc. (AGAP), 12Anak Mindanao (AMIN), 13 and An Waray. 14 Per the certification 15 by COMELEC, the following party-list organizations have been proclaimed as of 19 May 2008:

1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 1.11 1.12

Party-List

No. of Seat(s)

Buhay Bayan Muna CIBAC Gabriela APEC A Teacher Akbayan Alagad Butil Coop-Natco [sic] Anak Pawis ARC

3 2 2 2 2 1 1 1 1 1 1 1

1.13 1.14 1.15

Abono AGAP AMIN

1 1 1

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS),against which an Urgent Petition for Cancellation/Removal of Registration and Disqualification of Party-list Nominee (with Prayer for the Issuance of Restraining Order) has been filed before the COMELEC, was deferred pending final resolution of SPC No. 07-250. SaHIEA Issues BANAT brought the following issues before this Court: 1. Is the twenty percent allocation for party-list representatives provided in Section 5(2), Article VI of the Constitution mandatory or is it merely a ceiling? 2. Is the three-seat limit provided in Section 11(b) of RA 7941 constitutional? 3. Is the two percent threshold and "qualifier" votes prescribed by the same Section 11(b) of RA 7941 constitutional? 4. How shall the party-list representatives be allocated? 16 Bayan Muna, A Teacher, and Abono, on the other hand, raised the following issues in their petition: I. Respondent Commission on Elections, acting as National Board of Canvassers, committed grave abuse of discretion amounting to lack or excess of jurisdiction when it promulgated NBC Resolution No. 07-60 to implement the First-Party Rule in the allocation of seats to qualified party-list organizations as said rule: A. Violates the constitutional principle of proportional representation. B. Violates the provisions of RA 7941 particularly: 1. The 2-4-6 Formula used by the First Party Rule in allocating additional seats for the "First Party" violates the principle of proportional representation under RA 7941. 2. The use of two formulas in the allocation of additional seats, one for the "First Party" and another for the qualifying parties, violates Section 11(b) of RA 7941. 3. The proportional relationships under the First Party Rule are different from those required under RA 7941; C.Violates the "Four Inviolable Parameters" of the Philippine party-list system as provided for under the same case of Veterans Federation Party, et al. v. COMELEC. II. Presuming that the Commission on Elections did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when it implemented the First-Party Rule in the allocation of seats to qualified party-list organizations, the same being merely in consonance with the ruling in Veterans Federations Party, et al. v. COMELEC, the instant Petition is a justiciable case as the issues involved herein are constitutional in nature, involving the correct interpretation and implementation of RA 7941, and are of transcendental importance to our nation. 17

Considering the allegations in the petitions and the comments of the parties in these cases, we defined the following issues in our advisory for the oral arguments set on 22 April 2008: 1. Is the twenty percent allocation for party-list representatives in Section 5(2), Article VI of the Constitution mandatory or merely a ceiling? 2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional? 3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to qualify for one seat constitutional? 4. How shall the party-list representative seats be allocated? 5. Does the Constitution prohibit the major political parties from participating in the party-list elections? If not, can the major political parties be barred from participating in the party-list elections? 18 The Ruling of the Court The petitions have partial merit. We maintain that a Philippine-style party-list election has at least four inviolable parameters as clearly stated in Veterans. For easy reference, these are: First, the twenty percent allocation — the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list; Second, the two percent threshold — only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are "qualified" to have a seat in the House of Representatives; Third, the three-seat limit — each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and two additional seats; Fourth, proportional representation — the additional seats which a qualified party is entitled to shall be computed "in proportion to their total number of votes". 19 ITSacC However, because the formula in Veterans has flaws in its mathematical interpretation of the term "proportional representation",this Court is compelled to revisit the formula for the allocation of additional seats to party-list organizations. Number of Party-List Representatives: The Formula Mandated by the Constitution Section 5, Article VI of the Constitution provides: Section 5. (1)The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (2)The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution,one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.

The first paragraph of Section 11 of R.A. No. 7941 reads: Section 11. Number of Party-List Representatives. — The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list. xxx xxx xxx Section 5 (1), Article VI of the Constitution states that the "House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law". The House of Representatives shall be composed of district representatives and party-list representatives. The Constitution allows the legislature to modify the number of the members of the House of Representatives. Section 5 (2), Article VI of the Constitution, on the other hand, states the ratio of party-list representatives to the total number of representatives. We compute the number of seats available to party-list representatives from the number of legislative districts. On this point, we do not deviate from the first formula in Veterans, thus: Number of seats available to legislative districts ———————————— .80

x .20

=

Number of seats available to party-list representatives

This formula allows for the corresponding increase in the number of seats available for party-list representatives whenever a legislative district is created by law. Since the 14th Congress of the Philippines has 220 district representatives, there are 55 seats available to party-list representatives. 220 ———— .80

x .20

=

55

After prescribing the ratio of the number of party-list representatives to the total number of representatives, the Constitution left the manner of allocating the seats available to partylist representatives to the wisdom of the legislature. Allocation of Seats for Party-List Representatives: The Statutory Limits Presented by the Two Percent Threshold and the Three-Seat Cap All parties agree on the formula to determine the maximum number of seats reserved under the Party-List System, as well as on the formula to determine the guaranteed seats to party-list candidates garnering at least two-percent of the total party-list votes. However, there are numerous interpretations of the provisions of R.A. No. 7941 on the allocation of "additional seats" under the Party-List System. Veteransproduced the First Party Rule, 20 and Justice Vicente V. Mendoza's dissent in Veterans presented Germany's Niemeyer formula 21 as an alternative. The Constitution left to Congress the determination of the manner of allocating the seats for party-list representatives. Congress enactedR.A. No. 7941, paragraphs (a) and (b) of Section 11 and Section 12 of which provide: Section 11. Number of Party-List Representatives. — ... In determining the allocation of seats for the second vote, 22 the following procedure shall be observed:

(a) The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. (b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. Section 12.Procedure in Allocating Seats for Party-List Representatives. — The COMELEC shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis, rank them according to the number of votes received and allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization, or coalition as against the total nationwide votes cast for the party-list system. (Emphasis supplied) In G.R. No. 179271, BANAT presents two interpretations through three formulas to allocate party-list representative seats. The first interpretation allegedly harmonizes the provisions of Section 11 (b) on the 2% requirement with Section 12 of R.A. No. 7941.BANAT described this procedure as follows: ASEIDH (a) The party-list representatives shall constitute twenty percent (20%) of the total Members of the House of Representatives including those from the party-list groups as prescribed by Section 5, Article VI of the Constitution, Section 11 (1st par.) of RA 7941 and Comelec Resolution No. 2847 dated 25 June 1996. Since there are 220 District Representatives in the 14th Congress, there shall be 55 Party-List Representatives. All seats shall have to be proclaimed. (b) All party-list groups shall initially be allotted one (1) seat for every two per centum (2%) of the total party-list votes they obtained; provided, that no party-list groups shall have more than three (3) seats (Section 11, RA 7941). (c) The remaining seats shall, after deducting the seats obtained by the party-list groups under the immediately preceding paragraph and after deducting from their total the votes corresponding to those seats, the remaining seats shall be allotted proportionately to all the party-list groups which have not secured the maximum three (3) seats under the 2% threshold rule, in accordance with Section 12 of RA 7941. 23 Forty-four (44) party-list seats will be awarded under BANAT's first interpretation. The second interpretation presented by BANAT assumes that the 2% vote requirement is declared unconstitutional, and apportions the seats for party-list representatives by following Section 12 of R.A. No. 7941. BANAT states that the COMELEC: (a) shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis; (b) rank them according to the number of votes received; and, (c) allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization or coalition as against the total nationwide votes cast for the party-list system. 24 BANAT used two formulas to obtain the same results: one is based on the proportional percentage of the votes received by each party as against the total nationwide party-list votes, and

the other is "by making the votes of a party-list with a median percentage of votes as the divisor in computing the allocation of seats". 25 Thirty-four (34) party-list seats will be awarded under BANAT's second interpretation. In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELEC's original 2-4-6 formula and the Veterans formula for systematically preventing all the party-list seats from being filled up. They claim that both formulas do not factor in the total number of seats allotted for the entire Party-List System. Bayan Muna, Abono, and A Teacher reject the three-seat cap, but accept the 2% threshold. After determining the qualified parties, a second percentage is generated by dividing the votes of a qualified party by the total votes of all qualified parties only. The number of seats allocated to a qualified party is computed by multiplying the total party-list seats available with the second percentage. There will be a first round of seat allocation, limited to using the whole integers as the equivalent of the number of seats allocated to the concerned party-list. After all the qualified parties are given their seats, a second round of seat allocation is conducted. The fractions, or remainders, from the whole integers are ranked from highest to lowest and the remaining seats on the basis of this ranking are allocated until all the seats are filled up. 26 We examine what R.A. No. 7941 prescribes to allocate seats for party-list representatives. Section 11 (a) of R.A. No. 7941 prescribes the ranking of the participating parties from the highest to the lowest based on the number of votes they garnered during the elections. Table 1. Ranking of the participating parties from the highest to the lowest based on the number of votes garnered during the elections. 27 Rank

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Party

Votes Garnered

BUHAY BAYAN MUNA CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD COOP-NATCCO BUTIL BATAS ARC ANAKPAWIS ABONO AMIN AGAP AN WARAY YACAP FPJPM UNI-MAD ABS KAKUSA KABATAAN ABA-AKO ALIF

1,169,234 979,039 755,686 621,171 619,657 490,379 466,112 423,149 409,883 409,160 385,810 374,288 370,261 339,990 338,185 328,724 321,503 310,889 300,923 245,382 235,086 228,999 228,637 218,818 217,822

26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77

SENIOR CITIZENS AT VFP ANAD BANAT ANG KASANGGA BANTAY ABAKADA 1-UTAK TUCP COCOFED AGHAM ANAK ABANSE! PINAY PM AVE SUARA ASSALAM DIWA ANC SANLAKAS ABC KALAHI APOI BP AHONBAYAN BIGKIS PMAP AKAPIN PBA GRECON BTM A SMILE NELFFI AKSA BAGO BANDILA AHON ASAHAN MO AGBIAG! SPI BAHANDI ADD AMANG SCIAaT ABAY PARAK BABAE KA SB ASAP PEP ABA ILONGGO VENDORS ADD-TRIBAL

213,058 197,872 196,266 188,521 177,028 170,531 169,801 166,747 164,980 162,647 155,920 146,032 141,817 130,356 119,054 110,769 110,732 110,440 107,021 99,636 97,375 90,058 88,868 79,386 78,541 78,424 77,327 75,200 74,686 71,544 62,220 60,993 58,717 57,872 57,012 55,846 54,751 54,522 51,722 50,837 50,478 46,612 45,624 43,062 42,282 36,512 34,835 34,098 33,938 33,903 33,691 32,896

78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93

ALMANA AANGAT KA PILIPINO AAPS HAPI AAWAS SM AG AGING PINOY APO BIYAYANG BUKID ATS UMDJ BUKLOD FILIPINA LYPAD AA-KASOSYO KASAPI TOTAL

32,255 29,130 26,271 25,781 22,946 20,744 16,916 16,729 16,421 16,241 14,161 9,445 8,915 8,471 8,406 6,221 ————— 15,950,900 =========

The first clause of Section 11 (b) of R.A. No. 7941 states that "parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each". This clause guarantees a seat to the two-percenters. In Table 2 below, we use the first 20 party-list candidates for illustration purposes. The percentage of votes garnered by each party is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for all party-list candidates. Table 2.The first 20 party-list candidates and their respective percentage of votes garnered over the total votes for the party-list. 28 Rank

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Party

Votes Garnered

Votes Garnered over Total Votes for Party-List, in %

Guaranteed Seat

BUHAY BAYAN MUNA CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD COOP-NATCCO BUTIL BATAS 29 ARC ANAKPAWIS ABONO AMIN AGAP IDTHcA AN WARAY

1,169,234 979,039 755,686 621,171 619,657 490,379 466,112 423,149 409,883 409,160 385,810 374,288 370,261 339,990 338,185 328,724 321,503

7.33% 6.14% 4.74% 3.89% 3.88% 3.07% 2.92% 2.65% 2.57% 2.57% 2.42% 2.35% 2.32% 2.13% 2.12% 2.06% 2.02%

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Total 18 19 20

YACAP FPJPM UNI-MAD

310,889 300,923 245,382

1.95% 1.89% 1.54%

From Table 2 above, we see that only 17 party-list candidates received at least 2% from the total number of votes cast for party-list candidates. The 17 qualified party-list candidates, or the two-percenters, are the party-list candidates that are "entitled to one seat each",or the guaranteed seat. In this first round of seat allocation, we distributed 17 guaranteed seats. The second clause of Section 11 (b) of R.A. No. 7941 provides that "those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes".This is where petitioners' and intervenors' problem with the formula in Veterans lies. Veterans interprets the clause "in proportion to their total number of votes" to be in proportion to the votes of the first party. This interpretation is contrary to the express language of R.A. No. 7941. IATHaS We rule that, in computing the allocation of additional seats, the continued operation of the two percent threshold for the distribution of the additional seats as found in the second clause of Section 11 (b) of R.A. No. 7941 is unconstitutional.This Court finds that the two percent threshold makes it mathematically impossible to achieve the maximum number of available party list seats when the number of available party list seats exceeds 50. The continued operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling that 20% of the members of the House of Representatives shall consist of party-list representatives. To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast for the 100 participants in the party listelections. A party that has two percent of the votes cast, or one million votes, gets a guaranteed seat. Let us further assume that the first 50 parties all get one million votes. Only 50 parties get a seat despite the availability of 55 seats. Because of the operation of the two percent threshold, this situation will repeat itself even if we increase the available party-list seats to 60 seats and even if we increase the votes cast to 100 million. Thus, even if the maximum number of parties get two percent of the votes for every party, it is always impossible for the number of occupied party-list seats to exceed 50 seats as long as the two percent threshold is present. We therefore strike down the two percent threshold only in relation to the distribution of the additional seats as found in the second clause of Section 11 (b) of R.A. No. 7941. The two percent threshold presents an unwarranted obstacle to the full implementation of Section 5 (2), Article VI of the Constitution and prevents the attainment of "the broadest possible representation of party, sectoral or group interests in the House of Representatives". 30 In determining the allocation of seats for party-list representatives under Section 11 of R.A. No. 7941, the following procedure shall be observed: 1. The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. 2. The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one guaranteed seat each.

—— 17 === 0 0 0

3. Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be entitled to additional seats in proportion to their total number of votes until all the additional seats are allocated. 4. Each party, organization, or coalition shall be entitled to not more than three (3) seats. In computing the additional seats, the guaranteed seats shall no longer be included because they have already been allocated, at one seat each, to every two-percenter. Thus, the remaining available seats for allocation as "additional seats" are the maximum seats reserved under the Party List System less the guaranteed seats. Fractional seats are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats. In declaring the two percent threshold unconstitutional, we do not limit our allocation of additional seats in Table 3 below to the two-percenters. The percentage of votes garnered by each party-list candidate is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for party-list candidates. There are two steps in the second round of seat allocation. First, the percentage is multiplied by the remaining available seats, 38, which is the difference between the 55 maximum seats reserved under the Party-List System and the 17 guaranteed seats of the two-percenters. The whole integer of the product of the percentage and of the remaining available seats corresponds to a party's share in the remaining available seats. Second, we assign one party-list seat to each of the parties next in rank until all available seats are completely distributed. We distributed all of the remaining 38 seats in the second round of seat allocation. Finally, we apply the three-seat cap to determine the number of seats each qualified party-list candidate is entitled. Thus: Table 3.Distribution of Available Party-List Seats Votes Garnered

MUNA

ELA

her AN D NATCCO

AWIS O

1,169,234 979,039 755,686 621,171 619,657 490,379 466,112 423,149 409,883 409,160 385,810 374,288 370,261 339,990 338,185 328,724

Votes Garnered over Total Votes for Party List, in %

(A) 7.33% 6.14% 4.74% 3.89% 3.88% 3.07% 2.92% 2.65% 2.57% 2.57% 2.42% 2.35% 2.32% 2.13% 2.12% 2.06%

Guaranteed Seat

Additional Seats

(First Round) (B) 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

(Second Round) (C) 2.79 2.33 1.80 1.48 1.48 1.17 1.11 1.01 1 1 1 1 1 1 1 1

(B) plus (C),in whole integers

(D) 3 3 2 2 2 2 2 2 2 2 2 2 2 2 2 2

RAY

D

A AAN KO

R CITIZENS

ASANGGA Y DA K

FED

321,503 310,889 300,923 245,382 235,086 228,999 228,637 218,818 217,822 213,058 197,872 196,266 188,521 177,028 170,531 169,801 166,747 164,980 162,647 155,920

2.02% 1.95% 1.89% 1.54% 1.47% 1.44% 1.43% 1.37% 1.37% 1.34% 1.24% 1.23% 1.18% 1.11% 1.07% 1.06% 1.05% 1.03% 1.02% 0.98%

1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 —— 17 ====

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

Applying the procedure of seat allocation as illustrated in Table 3 above, there are 55 partylist representatives from the 36 winning party-list organizations. All 55 available party-list seats are filled. The additional seats allocated to the parties with sufficient number of votes for one whole seat, in no case to exceed a total of three seats for each party, are shown in column (D). IcADSE Participation of Major Political Parties in Party-List Elections The Constitutional Commission adopted a multi-party system that allowed all political parties to participate in the party-list elections.The deliberations of the Constitutional Commission clearly bear this out, thus: MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list system because we wanted to open up the political system to a pluralistic society through a multiparty system. ...We are for opening up the system, and we would like very much for the sectors to be there. That is why one of the ways to do that is to put a ceiling on the number of representatives from any single party that can sit within the 50 allocated under the party list system. .... xxx xxx xxx MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to political parties. My question is this: Are we going to classify for example Christian Democrats and Social Democrats as political parties? Can they run under the party list concept or must they be under the district legislation side of it only? MR. VILLACORTA.

2 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 —— 55 ====

In reply to that query, I think these parties that the Commissioner mentioned can field candidates for the Senate as well as for the House of Representatives. Likewise, they can also field sectoral candidates for the 20 percent or 30 percent, whichever is adopted, of the seats that we are allocating under the party list system. MR. MONSOD. In other words, the Christian Democrats can field district candidates and can also participate in the party list system? MR. VILLACORTA. Why not? When they come to the party list system, they will be fielding only sectoral candidates. MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list system? MR. VILLACORTA. Yes, why not? For as long as they field candidates who come from the different marginalized sectors that we shall designate in thisConstitution. MR. MONSOD. Suppose Senator Tañada wants to run under BAYAN group and says that he represents the farmers, would he qualify? MR. VILLACORTA. No, Senator Tañada would not qualify. MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan dela Cruz is a farmer. Who would pass on whether he is a farmer or not? MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties, particularly minority political parties, are not prohibited to participate in the party list election if they can prove that they are also organized along sectoral lines. MR. MONSOD. What the Commissioner is saying is that all political parties can participate because it is precisely the contention of political parties that they represent the broad base of citizens and that all sectors are represented in them. Would the Commissioner agree? MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political party, it will dominate the party list at mawawalang saysay din yung sector. Lalamunin mismo ng political parties ang party list system. Gusto ko lamang bigyan ng diin ang "reserve".Hindi ito reserve seat sa marginalized sectors. Kung titingnan natin itong 198 seats, reserved din ito sa political parties.

MR. MONSOD. DAETHc Hindi po reserved iyon kasi anybody can run there. But my question to Commissioner Villacorta and probably also to Commissioner Tadeo is that under this system, would UNIDO be banned from running under the party list system? MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that condition alone, UNIDO may be allowed to register for the party list system. MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer? MR. TADEO. The same. MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines. xxx xxx xxx MR. OPLE. ...In my opinion, this will also create the stimulus for political parties and mass organizations to seek common ground. For example, we have the PDP-Laban and the UNIDO. I see no reason why they should not be able to make common goals with mass organizations so that the very leadership of these parties can be transformed through the participation of mass organizations. And if this is true of the administration parties, this will be true of others like the Partido ng Bayan which is now being formed. There is no question that they will be attractive to many mass organizations. In the opposition parties to which we belong, there will be a stimulus for us to contact mass organizations so that with their participation, the policies of such parties can be radically transformed because this amendment will create conditions that will challenge both the mass organizations and the political parties to come together. And the party list system is certainly available, although it is open to all the parties. It is understood that the parties will enter in the roll of the COMELEC the names of representatives of mass organizations affiliated with them. So that we may, in time, develop this excellent system that they have in Europe where labor organizations and cooperatives, for example, distribute themselves either in the Social Democratic Party and the Christian Democratic Party in Germany, and their very presence there has a transforming effect upon the philosophies and the leadership of those parties. It is also a fact well known to all that in the United States, the AFL-CIO always vote with the Democratic Party. But the businessmen, most of them, always vote with the Republican Party, meaning that there is no reason at all why political parties and mass organizations should not combine, reenforce, influence and interact with each other so that the very objectives that we set in this Constitution for sectoral representation are achieved in a wider, more lasting, and more institutionalized way. Therefore, I support this [MonsodVillacorta] amendment. It installs sectoral representation as a constitutional gift, but at the same time, it challenges the sector to rise to the majesty of being elected representatives later on through a party list system; and even beyond

that, to become actual political parties capable of contesting political power in the wider constitutional arena for major political parties. xxx xxx xxx 32 (Emphasis supplied) R.A. No. 7941 provided the details for the concepts Constitutional Commission. Section 3 of R.A. No. 7941 reads:

put

forward

by

the

Definition of Terms. (a) The party-list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections(COMELEC).Component parties or organizations of a coalition may participate independently provided the coalition of which they form part does not participate in the party-list system. (b) A party means either a political party or a sectoral party or a coalition of parties. (c) A political party refers to an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for public office. It is a national party when its constituency is spread over the geographical territory of at least a majority of the regions. It is a regional party when its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region. cDaEAS (d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special interests and concerns of their sector, (e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interests or concerns. (f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes. Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party from dominating the party-list elections. Neither the Constitution nor R.A. No. 7941 prohibits major political parties from participating in the party-list system. On the contrary, the framers of the Constitution clearly intended the major political parties to participate in party-list elections through their sectoral wings. In fact, the members of the Constitutional Commission voted down, 19-22, any permanent sectoral seats, and in the alternative the reservation of the party-list system to the sectoral groups. 33 In defining a "party" that participates in party-list elections as either "a political party or a sectoral party", R.A. No. 7941 also clearly intended that major political parties will participate in the party-list elections. Excluding the major political parties in party-list elections is manifestly against the Constitution, the intent of the Constitutional Commission, and R.A. No. 7941. This Court cannot engage in sociopolitical engineering and judicially legislate the exclusion of major political parties from the partylist elections in patent violation of the Constitution and the law. Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission state that major political parties are allowed to establish, or form coalitions with, sectoral organizations for electoral or political purposes. There should not be a problem if, for example, the Liberal Party participates in the party-list election through the Kabataang Liberal ng Pilipinas (KALIPI), its

sectoral youth wing. The other major political parties can thus organize, or affiliate with, their chosen sector or sectors. To further illustrate, the Nacionalista Party can establish a fisherfolk wing to participate in the party-list election, and this fisherfolk wing can field its fisherfolk nominees. Kabalikat ng Malayang Pilipino (KAMPI) can do the same for the urban poor. The qualifications of party-list nominees are prescribed in Section 9 of R.A. No. 7941: Qualifications of Party-List Nominees. — No person shall be nominated as party-list representative unless he is a natural born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of theelections, able to read and write, bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election. In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue until the expiration of his term. Under Section 9 of R.A. No. 7941, it is not necessary that the party-list organization's nominee "wallow in poverty, destitution and infirmity" 34 as there is no financial status required in the law. It is enough that the nominee of the sectoral party/organization/coalition belongs to the marginalized and underrepresented sectors, 35 that is, if the nominee represents the fisherfolk, he or she must be a fisherfolk, or if the nominee represents the senior citizens, he or she must be a senior citizen. Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20% allocation of party-list representatives found in theConstitution. The Constitution, in paragraph 1, Section 5 of Article VI, left the determination of the number of the members of the House of Representatives to Congress: "The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, . . . ." The 20% allocation of partylist representatives is merely a ceiling; party-list representatives cannot be more than 20% of the members of the House of Representatives. However, we cannot allow the continued existence of a provision in the law which will systematically prevent the constitutionally allocated 20% party-list representatives from being filled. The three-seat cap, as a limitation to the number of seats that a qualified party-list organization may occupy, remains a valid statutory device that prevents any party from dominating the party-list elections. Seats for party-list representatives shall thus be allocated in accordance with the procedure used in Table 3 above. However, by a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing major political parties from participating in the party-list elections, directly or indirectly. Those who voted to continue disallowing major political parties from the party-list elections joined Chief Justice Reynato S. Puno in his separate opinion. On the formula to allocate party-list seats, the Court is unanimous in concurring with thisponencia. WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the Resolution of the COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as the Resolution dated 9 July 2007 in NBC No. 07-60. We declare unconstitutional the two percent threshold in the distribution of additional party-list seats. The allocation of additional seats under the Party-List System shall be in accordance with the procedure used in Table 3 of this Decision. Major political parties are disallowed from participating in party-list elections. This Decision is immediately executory. No pronouncement as to costs. SO ORDERED. ECISAD

||| (Barangay Association for National Advancement and Transparency (BANAT) v. Commission on Elections, G.R. No. 179271, 179295, [April 21, 2009], 604 PHIL 131-184) EN BANC [G.R. No. 179271. April 21, 2009.] BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT), petitioner,vs.COMMISSION ONELECTIONS (sitting as the National Board of Canvassers), respondent. ARTS BUSINESS AND SCIENCE PROFESSIONALS, intervenor. AANGAT TAYO, intervenor. COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC. (SENIOR CITIZENS), intervenor. [G.R. No. 179295. April 21, 2009.] BAYAN MUNA, ADVOCACY FOR TEACHER EMPOWERMENT THROUGH ACTION, COOPERATION AND HARMONY TOWARDS EDUCATIONAL REFORMS, INC.,and ABONO, petitioners, vs. COMMISSION ON ELECTIONS, respondent.

DECISION

CARPIO, J p: The Case Petitioner in G.R. No. 179271 — Barangay Association for National Advancement and Transparency (BANAT) — in a petition for certiorariand mandamus, 1 assails the Resolution 2 promulgated on 3 August 2007 by the Commission on Elections (COMELEC) in NBC No. 07-041 (PL). The COMELEC's resolution in NBC No. 07-041 (PL) approved the recommendation of Atty. Alioden D. Dalaig, Head of the National Board of Canvassers (NBC) Legal Group, to deny the petition of BANAT for being moot. BANAT filed before the COMELEC En Banc, acting as NBC, aPetition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution. The following are intervenors in G.R. No. 179271: Arts Business and Science Professionals (ABS),Aangat Tayo (AT),and Coalition of Associations of Senior Citizens in the Philippines, Inc. (Senior Citizens). Petitioners in G.R. No. 179295 — Bayan Muna, Abono, and Advocacy for Teacher Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms (A Teacher) — in a petition for certiorari with mandamus and prohibition, 3 assails NBC Resolution

No. 07-60 4 promulgated on 9 July 2007. NBC No. 07-60 made a partial proclamation of parties, organizations and coalitions that obtained at least two percent of the total votes cast under the Party-List System. The COMELEC announced that, upon completion of the canvass of the partylist results, it would determine the total number of seats of each winning party, organization, or coalition in accordance with Veterans Federation Party v. COMELEC 5 (Veterans). Estrella DL Santos, in her capacity as President and First Nominee of the Veterans Freedom Party, filed a motion to intervene in both G.R. Nos. 179271 and 179295. The Facts The 14 May 2007 elections included the elections for the party-list representatives. The COMELEC counted 15,950,900 votes cast for 93 parties under the Party-List System. 6 On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution,docketed as NBC No. 07-041 (PL) before the NBC. BANAT filed its petition because "[t]he Chairman and the Members of the [COMELEC] have recently been quoted in the national papers that the [COMELEC] is duty bound to and shall implement the Veterans ruling, that is, would apply the Panganiban formula in allocating party-list seats". 7 There were no intervenors in BANAT's petition before the NBC. BANAT filed a memorandumon 19 July 2007. aTEACS On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution No. 0760. NBC Resolution No. 07-60 proclaimed thirteen (13) parties as winners in the partylist elections, namely: Buhay Hayaan Yumabong (BUHAY),Bayan Muna, Citizens' Battle Against Corruption (CIBAC),Gabriela's Women Party (Gabriela),Association of Philippine Electric Cooperatives (APEC),A Teacher, Akbayan! Citizen's Action Party (AKBAYAN),Alagad, Luzon Farmers Party (BUTIL),Cooperative-Natco Network Party (COOP-NATCCO),Anak Pawis, Alliance of Rural Concerns (ARC),and Abono. We quote NBC Resolution No. 07-60 in its entirety below: WHEREAS, the Commission on Elections sitting en banc as National Board of Canvassers, thru its Sub-Committee for Party-List, as of 03 July 2007, had officially canvassed, in open and public proceedings, a total of fifteen million two hundred eighty three thousand six hundred fifty-nine (15,283,659) votes under the PartyList System of Representation, in connection with the National and Local Elections conducted last 14 May 2007; WHEREAS, the study conducted by the Legal and Tabulation Groups of the National Board of Canvassers reveals that the projected/maximum total party-list votes cannot go any higher than sixteen million seven hundred twenty three thousand one hundred twenty-one (16,723,121) votes given the following statistical data: Projected/Maximum Party-List Votes for May 2007 Elections i.

Total party-list votes already canvassed/ tabulated

15,283,659

ii.

Total party-list votes remaining uncanvassed/ untabulated (i.e. canvass deferred)

1,337,032

iii.

Maximum party-list votes (based on 100% outcome) from areas not yet submitted for canvass (Bogo, Cebu; Bais City; Pantar, Lanao del Norte; and Pagalungan, Maguindanao)

102,430

Maximum Total Party-List Votes

16,723,121

WHEREAS, Section 11 of Republic Act No. 7941 (Party-List System Act) provides in part: The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: provided, that those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: provided, finally, that each party, organization, or coalition shall be entitled to not more than three (3) seats. WHEREAS, for the 2007 Elections, based on the above projected total of party-list votes, the presumptive two percent (2%) threshold can be pegged at three hundred thirty four thousand four hundred sixty-two (334,462) votes; WHEREAS, the Supreme Court, in Citizen's Battle Against Corruption (CIBAC) versus COMELEC, reiterated its ruling in Veterans Federation Partyversus COMELEC adopting a formula for the additional seats of each party, organization or coalition receiving more than the required two percent (2%) votes, stating that the same shall be determined only after all party-list ballots have been completely canvassed; WHEREAS, the parties, organizations, and coalitions that have thus far garnered at least three hundred thirty four thousand four hundred sixty-two (334,462) votes are as follows: RANK

PARTY/ORGANIZATION/ COALITION

VOTES RECEIVED

1 BUHAY 1,163,218 2 BAYAN MUNA 972,730 3 CIBAC 760,260 4 GABRIELA 610,451 5 APEC 538,971 6 A TEACHER 476,036 7 AKBAYAN 470,872 8 ALAGAD 423,076 9 BUTIL 405,052 10 COOP-NATCO 390,029 11 BATAS 386,361 12 ANAK PAWIS 376,036 13 ARC 338,194 14 ABONO 337,046 WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS),against which an URGENT PETITION FOR CANCELLATION/REMOVAL OF REGISTRATION AND DISQUALIFICATION OF PARTY-LIST NOMINEE (With Prayer for the Issuance of Restraining Order) has been filed before the Commission, docketed as SPC No. 07-250, all the parties, organizations and coalitions included in the aforementioned list are therefore entitled to at least one seat under the party-list system of representation in the meantime. SATDHE

NOW, THEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941, and other election laws, the Commission on Elections, sitting en banc as the National Board of Canvassers, hereby RESOLVES to PARTIALLY PROCLAIM, subject to certain conditions set forth below, the following parties, organizations and coalitions participating under the Party-List System: 1 2 3 4 5

Buhay Hayaan Yumabong BUHAY Bayan Muna BAYAN MUNA Citizens Battle Against Corruption CIBAC Gabriela Women's Party GABRIELA Association of Philippine Electric APEC Cooperatives 6 Advocacy for Teacher A TEACHER Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms, Inc. 7 Akbayan! Citizen's Action Party AKBAYAN 8 Alagad ALAGAD 9 Luzon Farmers Party BUTIL 10 Cooperative-Natco Network Party COOP-NATCCO 11 Anak Pawis ANAKPAWIS 12 Alliance of Rural Concerns ARC 13 Abono ABONO This is without prejudice to the proclamation of other parties, organizations, or coalitions which may later on be established to have obtained at least two percent (2%) of the total actual votes cast under the Party-List System. The total number of seats of each winning party, organization or coalition shall be determined pursuant to Veterans Federation Party versusCOMELEC formula upon completion of the canvass of the party-list results. The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS) is hereby deferred until final resolution of SPC No. 07-250, in order not to render the proceedings therein moot and academic. Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes shall likewise be held in abeyance until final resolution of their respective cases. Let the Clerk of the Commission implement this Resolution, furnishing a copy thereof to the Speaker of the House of Representatives of the Philippines. SO ORDERED. 8 (Emphasis in the original) Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC, promulgated NBC Resolution No. 07-72, which declared the additional seats allocated to the appropriate parties. We quote from the COMELEC's interpretation of the Veterans formula as found in NBC Resolution No. 07-72: WHEREAS, on July 9, 2007, the Commission on Elections sitting en banc as the National Board of Canvassers proclaimed thirteen (13) qualified parties, organization[s] and coalitions based on the presumptive two percent (2%) threshold of 334,462 votes

from the projected maximum total number of party-list votes of 16,723,121, and were thus given one (1) guaranteed party-list seat each; WHEREAS, per Report of the Tabulation Group and Supervisory Committee of the National Board of Canvassers, the projected maximum total party-list votes, as of July 11, 2007, based on the votes actually canvassed, votes canvassed but not included in Report No. 29, votes received but uncanvassed, and maximum votes expected for Pantar, Lanao del Norte, is 16,261,369; and that the projected maximum total votes for the thirteen (13) qualified parties, organizations and coalition[s] are as follows: Party-List

Projected total number of votes

1 BUHAY 1,178,747 2 BAYAN MUNA 977,476 3 CIBAC 755,964 4 GABRIELA 621,718 5 APEC 622,489 6 A TEACHER 492,369 7 AKBAYAN 462,674 8 ALAGAD 423,190 9 BUTIL 409,298 10 COOP-NATCO 412,920 11 ANAKPAWIS 370,165 12 ARC 375,846 13 ABONO 340,151 WHEREAS, based on the above Report, Buhay Hayaan Yumabong (Buhay) obtained the highest number of votes among the thirteen (13) qualified parties, organizations and coalitions, making it the "first party" in accordance with Veterans Federation Party versus COMELEC,reiterated in Citizen's Battle Against Corruption (CIBAC) versus COMELEC; acITSD WHEREAS, qualified parties, organizations and coalitions participating under the party-list system of representation that have obtained one guaranteed (1) seat may be entitled to an additional seat or seats based on the formula prescribed by the Supreme Court in Veterans; WHEREAS, in determining the additional seats for the "first party",the correct formula as expressed in Veterans,is: Number of votes of first party Proportion of votes of first ————————————— = party relative to total votes for Total votes for party-list system party-list system wherein the proportion of votes received by the first party (without rounding off) shall entitle it to additional seats: Proportion of votes received by the first party

Additional seats

Equal to or at least 6% Two (2) additional seats Equal to or greater than 4% but lessthan 6% One (1) additional seat Less than 4% No additional seat WHEREAS, applying the above formula, Buhay obtained the following percentage: 1,178,747 —————

=

0.07248 or 7.2%

16,261,369 which entitles it to two (2) additional seats. WHEREAS, in determining the additional seats for the other qualified parties, organizations and coalitions, the correct formula as expressed inVeterans and reiterated in CIBAC is, as follows: No. of votes of concerned party Additional seats for = —————— x a concerned party No. of votes of first party WHEREAS, applying the above formula, the results are as follows: Party List

Percentage

No. of additional seats allocated to first party

Additional Seat

BAYAN MUNA 1.65 1 CIBAC 1.28 1 GABRIELA 1.05 1 APEC 1.05 1 A TEACHER 0.83 0 AKBAYAN 0.78 0 ALAGAD 0.71 0 BUTIL 0.69 0 COOP-NATCO 0.69 0 ANAKPAWIS 0.62 0 ARC 0.63 0 ABONO 0.57 0 NOW THEREFORE, by virtue of the powers vested in it by the Constitution, Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941 and other elections laws, the Commission on Elections en banc sitting as the National Board of Canvassers, hereby RESOLVED, as it hereby RESOLVES, to proclaim the following parties, organizations or coalitions as entitled to additional seats, to wit: Party List

Additional Seats

BUHAY 2 BAYAN MUNA 1 CIBAC 1 GABRIELA 1 APEC 1 This is without prejudice to the proclamation of other parties, organizations or coalitions which may later on be established to have obtained at least two per cent (2%) of the total votes cast under the party-list system to entitle them to one (1) guaranteed seat, or to the appropriate percentage of votes to entitle them to one (1) additional seat. Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes shall likewise be held in abeyance until final resolution of their respective cases. Let the National Board of Canvassers Secretariat implement this Resolution, furnishing a copy hereof to the Speaker of the House of Representatives of the Philippines.

SO ORDERED. 9 Acting on BANAT's petition, the NBC promulgated NBC Resolution No. 07-88 on 3 August 2007, which reads as follows: This pertains to the Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution filed by the Barangay Association for National Advancement and Transparency (BANAT). Acting on the foregoing Petition of the Barangay Association for National Advancement and Transparency (BANAT) party-list, Atty. Alioden D. Dalaig, Head, National Board of Canvassers Legal Group submitted his comments/observations and recommendation thereon [NBC 07-041 (PL)],which reads: COMMENTS/OBSERVATIONS: Petitioner Barangay Association for National Advancement and Transparency (BANAT), in its Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution prayed for the following reliefs, to wit: 1. That the full number — twenty percent (20%) — of Party-List representatives as mandated by Section 5, Article VI of theConstitution shall be proclaimed. CaDEAT 2. Paragraph (b), Section 11 of RA 7941 which prescribes the 2% threshold votes, should be harmonized with Section 5, Article VI of the Constitution and with Section 12 of the same RA 7941 in that it should be applicable only to the first party-list representative seats to be allotted on the basis of their initial/first ranking. 3. The 3-seat limit prescribed by RA 7941 shall be applied; and 4. Initially, all party-list groups shall be given the number of seats corresponding to every 2% of the votes they received and the additional seats shall be allocated in accordance with Section 12 of RA 7941, that is, in proportion to the percentage of votes obtained by each party-list group in relation to the total nationwide votes cast in the party-list election, after deducting the corresponding votes of those which were allotted seats under the 2% threshold rule. In fine, the formula/procedure prescribed in the "ALLOCATION OF PARTY-LIST SEATS, ANNEX "A" of COMELEC RESOLUTION 2847 dated 25 June 1996, shall be used for [the] purpose of determining how many seats shall be proclaimed, which party-list groups are entitled to representative seats and how many of their nominees shall seat [sic]. 5. In the alternative, to declare as unconstitutional Section 11 of Republic Act No. 7941 and that the procedure in allocating seats for party-list representative prescribed by Section 12 of RA 7941 shall be followed. RECOMMENDATION: The petition of BANAT is now moot and academic. The Commission En Banc in NBC Resolution No. 07-60 promulgated July 9, 2007 re "In the Matter of the Canvass of Votes and Partial Proclamation of the Parties, Organizations and Coalitions Participating Under the Party-List System During the May 14, 2007 National and Local Elections" resolved among others that the total number of seats of each winning party, organization or coalition

shall be determined pursuant to the Veterans Federation Party versus COMELEC formula upon completion of the canvass of the partylist results". WHEREFORE, premises considered, the National Board of Canvassers RESOLVED, as it hereby RESOLVES, to approve and adopt the recommendation of Atty. Alioden D. Dalaig, Head, NBC Legal Group, to DENY the herein petition of BANAT for being moot and academic. Let the Supervisory Committee implement this resolution. SO ORDERED. 10 BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC Resolution No. 07-88. BANAT did not file a motion for reconsideration of NBC Resolution No. 07-88. On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as NBC, to reconsider its decision to use the Veteransformula as stated in its NBC Resolution No. 07-60 because the Veterans formula is violative of the Constitution and of Republic Act No. 7941 (R.A. No. 7941). On the same day, the COMELEC denied reconsideration during the proceedings of the NBC. 11 Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the COMELEC proclaimed three other party-list organizations as qualified parties entitled to one guaranteed seat under the Party-List System: Agricultural Sector Alliance of the Philippines, Inc. (AGAP), 12Anak Mindanao (AMIN), 13 and An Waray. 14 Per the certification 15 by COMELEC, the following party-list organizations have been proclaimed as of 19 May 2008:

1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 1.11 1.12 1.13 1.14 1.15

Party-List

No. of Seat(s)

Buhay Bayan Muna CIBAC Gabriela APEC A Teacher Akbayan Alagad Butil Coop-Natco [sic] Anak Pawis ARC Abono AGAP AMIN

3 2 2 2 2 1 1 1 1 1 1 1 1 1 1

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS),against which an Urgent Petition for Cancellation/Removal of Registration and Disqualification of Party-list Nominee (with Prayer for the Issuance of Restraining Order) has been filed before the COMELEC, was deferred pending final resolution of SPC No. 07-250. SaHIEA Issues BANAT brought the following issues before this Court:

1. Is the twenty percent allocation for party-list representatives provided in Section 5(2), Article VI of the Constitution mandatory or is it merely a ceiling? 2. Is the three-seat limit provided in Section 11(b) of RA 7941 constitutional? 3. Is the two percent threshold and "qualifier" votes prescribed by the same Section 11(b) of RA 7941 constitutional? 4. How shall the party-list representatives be allocated? 16 Bayan Muna, A Teacher, and Abono, on the other hand, raised the following issues in their petition: I. Respondent Commission on Elections, acting as National Board of Canvassers, committed grave abuse of discretion amounting to lack or excess of jurisdiction when it promulgated NBC Resolution No. 07-60 to implement the First-Party Rule in the allocation of seats to qualified party-list organizations as said rule: A. Violates the constitutional principle of proportional representation. B. Violates the provisions of RA 7941 particularly: 1. The 2-4-6 Formula used by the First Party Rule in allocating additional seats for the "First Party" violates the principle of proportional representation under RA 7941. 2. The use of two formulas in the allocation of additional seats, one for the "First Party" and another for the qualifying parties, violates Section 11(b) of RA 7941. 3. The proportional relationships under the First Party Rule are different from those required under RA 7941; C.Violates the "Four Inviolable Parameters" of the Philippine party-list system as provided for under the same case of Veterans Federation Party, et al. v. COMELEC. II. Presuming that the Commission on Elections did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when it implemented the First-Party Rule in the allocation of seats to qualified party-list organizations, the same being merely in consonance with the ruling in Veterans Federations Party, et al. v. COMELEC, the instant Petition is a justiciable case as the issues involved herein are constitutional in nature, involving the correct interpretation and implementation of RA 7941, and are of transcendental importance to our nation. 17 Considering the allegations in the petitions and the comments of the parties in these cases, we defined the following issues in our advisory for the oral arguments set on 22 April 2008: 1. Is the twenty percent allocation for party-list representatives in Section 5(2), Article VI of the Constitution mandatory or merely a ceiling? 2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional? 3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to qualify for one seat constitutional? 4. How shall the party-list representative seats be allocated?

5. Does the Constitution prohibit the major political parties from participating in the party-list elections? If not, can the major political parties be barred from participating in the party-list elections? 18 The Ruling of the Court The petitions have partial merit. We maintain that a Philippine-style party-list election has at least four inviolable parameters as clearly stated in Veterans. For easy reference, these are: First, the twenty percent allocation — the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list; Second, the two percent threshold — only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are "qualified" to have a seat in the House of Representatives; Third, the three-seat limit — each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and two additional seats; Fourth, proportional representation — the additional seats which a qualified party is entitled to shall be computed "in proportion to their total number of votes". 19 ITSacC However, because the formula in Veterans has flaws in its mathematical interpretation of the term "proportional representation",this Court is compelled to revisit the formula for the allocation of additional seats to party-list organizations. Number of Party-List Representatives: The Formula Mandated by the Constitution Section 5, Article VI of the Constitution provides: Section 5. (1)The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (2)The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party-list. For three consecutive terms after the ratification of this Constitution,one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. The first paragraph of Section 11 of R.A. No. 7941 reads: Section 11. Number of Party-List Representatives. — The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list. xxx xxx xxx Section 5 (1), Article VI of the Constitution states that the "House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law". The House of Representatives shall be composed of district representatives and party-list

representatives. The Constitution allows the legislature to modify the number of the members of the House of Representatives. Section 5 (2), Article VI of the Constitution, on the other hand, states the ratio of party-list representatives to the total number of representatives. We compute the number of seats available to party-list representatives from the number of legislative districts. On this point, we do not deviate from the first formula in Veterans, thus: Number of seats available to legislative districts ———————————— .80

x .20

=

Number of seats available to party-list representatives

This formula allows for the corresponding increase in the number of seats available for party-list representatives whenever a legislative district is created by law. Since the 14th Congress of the Philippines has 220 district representatives, there are 55 seats available to party-list representatives. 220 ———— .80

x .20

=

55

After prescribing the ratio of the number of party-list representatives to the total number of representatives, the Constitution left the manner of allocating the seats available to partylist representatives to the wisdom of the legislature. Allocation of Seats for Party-List Representatives: The Statutory Limits Presented by the Two Percent Threshold and the Three-Seat Cap All parties agree on the formula to determine the maximum number of seats reserved under the Party-List System, as well as on the formula to determine the guaranteed seats to party-list candidates garnering at least two-percent of the total party-list votes. However, there are numerous interpretations of the provisions of R.A. No. 7941 on the allocation of "additional seats" under the Party-List System. Veteransproduced the First Party Rule, 20 and Justice Vicente V. Mendoza's dissent in Veterans presented Germany's Niemeyer formula 21 as an alternative. The Constitution left to Congress the determination of the manner of allocating the seats for party-list representatives. Congress enactedR.A. No. 7941, paragraphs (a) and (b) of Section 11 and Section 12 of which provide: Section 11. Number of Party-List Representatives. — ... In determining the allocation of seats for the second vote, 22 the following procedure shall be observed: (a) The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. (b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. Section 12.Procedure in Allocating Seats for Party-List Representatives. — The COMELEC shall tally all the votes for the parties, organizations, or coalitions on a

nationwide basis, rank them according to the number of votes received and allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization, or coalition as against the total nationwide votes cast for the party-list system. (Emphasis supplied) In G.R. No. 179271, BANAT presents two interpretations through three formulas to allocate party-list representative seats. The first interpretation allegedly harmonizes the provisions of Section 11 (b) on the 2% requirement with Section 12 of R.A. No. 7941.BANAT described this procedure as follows: ASEIDH (a) The party-list representatives shall constitute twenty percent (20%) of the total Members of the House of Representatives including those from the party-list groups as prescribed by Section 5, Article VI of the Constitution, Section 11 (1st par.) of RA 7941 and Comelec Resolution No. 2847 dated 25 June 1996. Since there are 220 District Representatives in the 14th Congress, there shall be 55 Party-List Representatives. All seats shall have to be proclaimed. (b) All party-list groups shall initially be allotted one (1) seat for every two per centum (2%) of the total party-list votes they obtained; provided, that no party-list groups shall have more than three (3) seats (Section 11, RA 7941). (c) The remaining seats shall, after deducting the seats obtained by the party-list groups under the immediately preceding paragraph and after deducting from their total the votes corresponding to those seats, the remaining seats shall be allotted proportionately to all the party-list groups which have not secured the maximum three (3) seats under the 2% threshold rule, in accordance with Section 12 of RA 7941. 23 Forty-four (44) party-list seats will be awarded under BANAT's first interpretation. The second interpretation presented by BANAT assumes that the 2% vote requirement is declared unconstitutional, and apportions the seats for party-list representatives by following Section 12 of R.A. No. 7941. BANAT states that the COMELEC: (a) shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis; (b) rank them according to the number of votes received; and, (c) allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization or coalition as against the total nationwide votes cast for the party-list system. 24 BANAT used two formulas to obtain the same results: one is based on the proportional percentage of the votes received by each party as against the total nationwide party-list votes, and the other is "by making the votes of a party-list with a median percentage of votes as the divisor in computing the allocation of seats". 25 Thirty-four (34) party-list seats will be awarded under BANAT's second interpretation. In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELEC's original 2-4-6 formula and the Veterans formula for systematically preventing all the party-list seats from being filled up. They claim that both formulas do not factor in the total number of seats allotted for the entire Party-List System. Bayan Muna, Abono, and A Teacher reject the three-seat cap, but accept the 2% threshold. After determining the qualified parties, a second percentage is generated by dividing the votes of a qualified party by the total votes of all qualified parties only. The number of seats allocated to a qualified party is computed by multiplying the total party-list seats available with the second percentage. There will be a first round of seat allocation, limited to

using the whole integers as the equivalent of the number of seats allocated to the concerned party-list. After all the qualified parties are given their seats, a second round of seat allocation is conducted. The fractions, or remainders, from the whole integers are ranked from highest to lowest and the remaining seats on the basis of this ranking are allocated until all the seats are filled up. 26 We examine what R.A. No. 7941 prescribes to allocate seats for party-list representatives. Section 11 (a) of R.A. No. 7941 prescribes the ranking of the participating parties from the highest to the lowest based on the number of votes they garnered during the elections. Table 1. Ranking of the participating parties from the highest to the lowest based on the number of votes garnered during the elections. 27 Rank

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37

Party

Votes Garnered

BUHAY BAYAN MUNA CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD COOP-NATCCO BUTIL BATAS ARC ANAKPAWIS ABONO AMIN AGAP AN WARAY YACAP FPJPM UNI-MAD ABS KAKUSA KABATAAN ABA-AKO ALIF SENIOR CITIZENS AT VFP ANAD BANAT ANG KASANGGA BANTAY ABAKADA 1-UTAK TUCP COCOFED AGHAM

1,169,234 979,039 755,686 621,171 619,657 490,379 466,112 423,149 409,883 409,160 385,810 374,288 370,261 339,990 338,185 328,724 321,503 310,889 300,923 245,382 235,086 228,999 228,637 218,818 217,822 213,058 197,872 196,266 188,521 177,028 170,531 169,801 166,747 164,980 162,647 155,920 146,032

38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89

ANAK ABANSE! PINAY PM AVE SUARA ASSALAM DIWA ANC SANLAKAS ABC KALAHI APOI BP AHONBAYAN BIGKIS PMAP AKAPIN PBA GRECON BTM A SMILE NELFFI AKSA BAGO BANDILA AHON ASAHAN MO AGBIAG! SPI BAHANDI ADD AMANG SCIAaT ABAY PARAK BABAE KA SB ASAP PEP ABA ILONGGO VENDORS ADD-TRIBAL ALMANA AANGAT KA PILIPINO AAPS HAPI AAWAS SM AG AGING PINOY APO BIYAYANG BUKID ATS UMDJ

141,817 130,356 119,054 110,769 110,732 110,440 107,021 99,636 97,375 90,058 88,868 79,386 78,541 78,424 77,327 75,200 74,686 71,544 62,220 60,993 58,717 57,872 57,012 55,846 54,751 54,522 51,722 50,837 50,478 46,612 45,624 43,062 42,282 36,512 34,835 34,098 33,938 33,903 33,691 32,896 32,255 29,130 26,271 25,781 22,946 20,744 16,916 16,729 16,421 16,241 14,161 9,445

90 91 92 93

BUKLOD FILIPINA LYPAD AA-KASOSYO KASAPI TOTAL

8,915 8,471 8,406 6,221 ————— 15,950,900 =========

The first clause of Section 11 (b) of R.A. No. 7941 states that "parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each". This clause guarantees a seat to the two-percenters. In Table 2 below, we use the first 20 party-list candidates for illustration purposes. The percentage of votes garnered by each party is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for all party-list candidates. Table 2.The first 20 party-list candidates and their respective percentage of votes garnered over the total votes for the party-list. 28 Rank

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

Party

Votes Garnered

Votes Garnered over Total Votes for Party-List, in %

Guaranteed Seat

BUHAY BAYAN MUNA CIBAC GABRIELA APEC A TEACHER AKBAYAN ALAGAD COOP-NATCCO BUTIL BATAS 29 ARC ANAKPAWIS ABONO AMIN AGAP IDTHcA AN WARAY

1,169,234 979,039 755,686 621,171 619,657 490,379 466,112 423,149 409,883 409,160 385,810 374,288 370,261 339,990 338,185 328,724 321,503

7.33% 6.14% 4.74% 3.89% 3.88% 3.07% 2.92% 2.65% 2.57% 2.57% 2.42% 2.35% 2.32% 2.13% 2.12% 2.06% 2.02%

310,889 300,923 245,382

1.95% 1.89% 1.54%

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 —— 17 === 0 0 0

Total 18 19 20

YACAP FPJPM UNI-MAD

From Table 2 above, we see that only 17 party-list candidates received at least 2% from the total number of votes cast for party-list candidates. The 17 qualified party-list candidates, or the two-percenters, are the party-list candidates that are "entitled to one seat each",or the guaranteed seat. In this first round of seat allocation, we distributed 17 guaranteed seats.

The second clause of Section 11 (b) of R.A. No. 7941 provides that "those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes".This is where petitioners' and intervenors' problem with the formula in Veterans lies. Veterans interprets the clause "in proportion to their total number of votes" to be in proportion to the votes of the first party. This interpretation is contrary to the express language of R.A. No. 7941. IATHaS We rule that, in computing the allocation of additional seats, the continued operation of the two percent threshold for the distribution of the additional seats as found in the second clause of Section 11 (b) of R.A. No. 7941 is unconstitutional.This Court finds that the two percent threshold makes it mathematically impossible to achieve the maximum number of available party list seats when the number of available party list seats exceeds 50. The continued operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling that 20% of the members of the House of Representatives shall consist of party-list representatives. To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast for the 100 participants in the party listelections. A party that has two percent of the votes cast, or one million votes, gets a guaranteed seat. Let us further assume that the first 50 parties all get one million votes. Only 50 parties get a seat despite the availability of 55 seats. Because of the operation of the two percent threshold, this situation will repeat itself even if we increase the available party-list seats to 60 seats and even if we increase the votes cast to 100 million. Thus, even if the maximum number of parties get two percent of the votes for every party, it is always impossible for the number of occupied party-list seats to exceed 50 seats as long as the two percent threshold is present. We therefore strike down the two percent threshold only in relation to the distribution of the additional seats as found in the second clause of Section 11 (b) of R.A. No. 7941. The two percent threshold presents an unwarranted obstacle to the full implementation of Section 5 (2), Article VI of the Constitution and prevents the attainment of "the broadest possible representation of party, sectoral or group interests in the House of Representatives". 30 In determining the allocation of seats for party-list representatives under Section 11 of R.A. No. 7941, the following procedure shall be observed: 1. The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. 2. The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one guaranteed seat each. 3. Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be entitled to additional seats in proportion to their total number of votes until all the additional seats are allocated. 4. Each party, organization, or coalition shall be entitled to not more than three (3) seats. In computing the additional seats, the guaranteed seats shall no longer be included because they have already been allocated, at one seat each, to every two-percenter. Thus, the remaining available seats for allocation as "additional seats" are the maximum seats reserved under the Party List System less the guaranteed seats. Fractional seats are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats. In declaring the two percent threshold unconstitutional, we do not limit our allocation of additional seats in Table 3 below to the two-percenters. The percentage of votes garnered by

each party-list candidate is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for party-list candidates. There are two steps in the second round of seat allocation. First, the percentage is multiplied by the remaining available seats, 38, which is the difference between the 55 maximum seats reserved under the Party-List System and the 17 guaranteed seats of the two-percenters. The whole integer of the product of the percentage and of the remaining available seats corresponds to a party's share in the remaining available seats. Second, we assign one party-list seat to each of the parties next in rank until all available seats are completely distributed. We distributed all of the remaining 38 seats in the second round of seat allocation. Finally, we apply the three-seat cap to determine the number of seats each qualified party-list candidate is entitled. Thus: Table 3.Distribution of Available Party-List Seats Votes Garnered

MUNA

ELA

her AN D NATCCO

AWIS O

RAY

D

A AAN KO

R CITIZENS

1,169,234 979,039 755,686 621,171 619,657 490,379 466,112 423,149 409,883 409,160 385,810 374,288 370,261 339,990 338,185 328,724 321,503 310,889 300,923 245,382 235,086 228,999 228,637 218,818 217,822 213,058 197,872 196,266 188,521 177,028

Votes Garnered over Total Votes for Party List, in %

(A) 7.33% 6.14% 4.74% 3.89% 3.88% 3.07% 2.92% 2.65% 2.57% 2.57% 2.42% 2.35% 2.32% 2.13% 2.12% 2.06% 2.02% 1.95% 1.89% 1.54% 1.47% 1.44% 1.43% 1.37% 1.37% 1.34% 1.24% 1.23% 1.18% 1.11%

Guaranteed Seat

Additional Seats

(First Round) (B) 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0

(Second Round) (C) 2.79 2.33 1.80 1.48 1.48 1.17 1.11 1.01 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

(B) plus (C),in whole integers

(D) 3 3 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 1 1 1 1 1 1 1 1 1 1 1 1 1

ASANGGA Y DA K

FED

170,531 169,801 166,747 164,980 162,647 155,920

1.07% 1.06% 1.05% 1.03% 1.02% 0.98%

0 0 0 0 0 0 —— 17 ====

1 1 1 1 1 1

Applying the procedure of seat allocation as illustrated in Table 3 above, there are 55 partylist representatives from the 36 winning party-list organizations. All 55 available party-list seats are filled. The additional seats allocated to the parties with sufficient number of votes for one whole seat, in no case to exceed a total of three seats for each party, are shown in column (D). IcADSE Participation of Major Political Parties in Party-List Elections The Constitutional Commission adopted a multi-party system that allowed all political parties to participate in the party-list elections.The deliberations of the Constitutional Commission clearly bear this out, thus: MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list system because we wanted to open up the political system to a pluralistic society through a multiparty system. ...We are for opening up the system, and we would like very much for the sectors to be there. That is why one of the ways to do that is to put a ceiling on the number of representatives from any single party that can sit within the 50 allocated under the party list system. .... xxx xxx xxx MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to political parties. My question is this: Are we going to classify for example Christian Democrats and Social Democrats as political parties? Can they run under the party list concept or must they be under the district legislation side of it only? MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner mentioned can field candidates for the Senate as well as for the House of Representatives. Likewise, they can also field sectoral candidates for the 20 percent or 30 percent, whichever is adopted, of the seats that we are allocating under the party list system. MR. MONSOD. In other words, the Christian Democrats can field district candidates and can also participate in the party list system? MR. VILLACORTA. Why not? When they come to the party list system, they will be fielding only sectoral candidates.

1 1 1 1 1 1 —— 55 ====

MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list system? MR. VILLACORTA. Yes, why not? For as long as they field candidates who come from the different marginalized sectors that we shall designate in thisConstitution. MR. MONSOD. Suppose Senator Tañada wants to run under BAYAN group and says that he represents the farmers, would he qualify? MR. VILLACORTA. No, Senator Tañada would not qualify. MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan dela Cruz is a farmer. Who would pass on whether he is a farmer or not? MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties, particularly minority political parties, are not prohibited to participate in the party list election if they can prove that they are also organized along sectoral lines. MR. MONSOD. What the Commissioner is saying is that all political parties can participate because it is precisely the contention of political parties that they represent the broad base of citizens and that all sectors are represented in them. Would the Commissioner agree? MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political party, it will dominate the party list at mawawalang saysay din yung sector. Lalamunin mismo ng political parties ang party list system. Gusto ko lamang bigyan ng diin ang "reserve".Hindi ito reserve seat sa marginalized sectors. Kung titingnan natin itong 198 seats, reserved din ito sa political parties. MR. MONSOD. DAETHc Hindi po reserved iyon kasi anybody can run there. But my question to Commissioner Villacorta and probably also to Commissioner Tadeo is that under this system, would UNIDO be banned from running under the party list system? MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that condition alone, UNIDO may be allowed to register for the party list system. MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer? MR. TADEO.

The same. MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines. xxx xxx xxx MR. OPLE. ...In my opinion, this will also create the stimulus for political parties and mass organizations to seek common ground. For example, we have the PDP-Laban and the UNIDO. I see no reason why they should not be able to make common goals with mass organizations so that the very leadership of these parties can be transformed through the participation of mass organizations. And if this is true of the administration parties, this will be true of others like the Partido ng Bayan which is now being formed. There is no question that they will be attractive to many mass organizations. In the opposition parties to which we belong, there will be a stimulus for us to contact mass organizations so that with their participation, the policies of such parties can be radically transformed because this amendment will create conditions that will challenge both the mass organizations and the political parties to come together. And the party list system is certainly available, although it is open to all the parties. It is understood that the parties will enter in the roll of the COMELEC the names of representatives of mass organizations affiliated with them. So that we may, in time, develop this excellent system that they have in Europe where labor organizations and cooperatives, for example, distribute themselves either in the Social Democratic Party and the Christian Democratic Party in Germany, and their very presence there has a transforming effect upon the philosophies and the leadership of those parties. It is also a fact well known to all that in the United States, the AFL-CIO always vote with the Democratic Party. But the businessmen, most of them, always vote with the Republican Party, meaning that there is no reason at all why political parties and mass organizations should not combine, reenforce, influence and interact with each other so that the very objectives that we set in this Constitution for sectoral representation are achieved in a wider, more lasting, and more institutionalized way. Therefore, I support this [MonsodVillacorta] amendment. It installs sectoral representation as a constitutional gift, but at the same time, it challenges the sector to rise to the majesty of being elected representatives later on through a party list system; and even beyond that, to become actual political parties capable of contesting political power in the wider constitutional arena for major political parties. xxx xxx xxx 32 (Emphasis supplied) R.A. No. 7941 provided the details for the concepts Constitutional Commission. Section 3 of R.A. No. 7941 reads:

put

forward

by

Definition of Terms. (a) The party-list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections(COMELEC).Component parties or organizations of a coalition may participate independently provided the coalition of which they form part does not participate in the party-list system.

the

(b) A party means either a political party or a sectoral party or a coalition of parties. (c) A political party refers to an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for public office. It is a national party when its constituency is spread over the geographical territory of at least a majority of the regions. It is a regional party when its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region. cDaEAS (d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special interests and concerns of their sector, (e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interests or concerns. (f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes. Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party from dominating the party-list elections. Neither the Constitution nor R.A. No. 7941 prohibits major political parties from participating in the party-list system. On the contrary, the framers of the Constitution clearly intended the major political parties to participate in party-list elections through their sectoral wings. In fact, the members of the Constitutional Commission voted down, 19-22, any permanent sectoral seats, and in the alternative the reservation of the party-list system to the sectoral groups. 33 In defining a "party" that participates in party-list elections as either "a political party or a sectoral party", R.A. No. 7941 also clearly intended that major political parties will participate in the party-list elections. Excluding the major political parties in party-list elections is manifestly against the Constitution, the intent of the Constitutional Commission, and R.A. No. 7941. This Court cannot engage in sociopolitical engineering and judicially legislate the exclusion of major political parties from the partylist elections in patent violation of the Constitution and the law. Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission state that major political parties are allowed to establish, or form coalitions with, sectoral organizations for electoral or political purposes. There should not be a problem if, for example, the Liberal Party participates in the party-list election through the Kabataang Liberal ng Pilipinas (KALIPI), its sectoral youth wing. The other major political parties can thus organize, or affiliate with, their chosen sector or sectors. To further illustrate, the Nacionalista Party can establish a fisherfolk wing to participate in the party-list election, and this fisherfolk wing can field its fisherfolk nominees. Kabalikat ng Malayang Pilipino (KAMPI) can do the same for the urban poor. The qualifications of party-list nominees are prescribed in Section 9 of R.A. No. 7941: Qualifications of Party-List Nominees. — No person shall be nominated as party-list representative unless he is a natural born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of theelections, able to read and write, bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue until the expiration of his term. Under Section 9 of R.A. No. 7941, it is not necessary that the party-list organization's nominee "wallow in poverty, destitution and infirmity" 34 as there is no financial status required in the law. It is enough that the nominee of the sectoral party/organization/coalition belongs to the marginalized and underrepresented sectors, 35 that is, if the nominee represents the fisherfolk, he or she must be a fisherfolk, or if the nominee represents the senior citizens, he or she must be a senior citizen. Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20% allocation of party-list representatives found in theConstitution. The Constitution, in paragraph 1, Section 5 of Article VI, left the determination of the number of the members of the House of Representatives to Congress: "The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, . . . ." The 20% allocation of partylist representatives is merely a ceiling; party-list representatives cannot be more than 20% of the members of the House of Representatives. However, we cannot allow the continued existence of a provision in the law which will systematically prevent the constitutionally allocated 20% party-list representatives from being filled. The three-seat cap, as a limitation to the number of seats that a qualified party-list organization may occupy, remains a valid statutory device that prevents any party from dominating the party-list elections. Seats for party-list representatives shall thus be allocated in accordance with the procedure used in Table 3 above. However, by a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing major political parties from participating in the party-list elections, directly or indirectly. Those who voted to continue disallowing major political parties from the party-list elections joined Chief Justice Reynato S. Puno in his separate opinion. On the formula to allocate party-list seats, the Court is unanimous in concurring with thisponencia. WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the Resolution of the COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as the Resolution dated 9 July 2007 in NBC No. 07-60. We declare unconstitutional the two percent threshold in the distribution of additional party-list seats. The allocation of additional seats under the Party-List System shall be in accordance with the procedure used in Table 3 of this Decision. Major political parties are disallowed from participating in party-list elections. This Decision is immediately executory. No pronouncement as to costs. SO ORDERED. ECISAD ||| (Barangay Association for National Advancement and Transparency (BANAT) v. Commission on Elections, G.R. No. 179271, 179295, [April 21, 2009], 604 PHIL 131-184) [G.R. No. 203766. April 2, 2013.] ATONG PAGLAUM, INC., represented by its President, Igot, petitioner, vs. COMMISSION ON ELECTIONS, respondent.

Mr.

Alan

[G.R. Nos. 203818-19. April 2, 2013.] AKO BICOL POLITICAL PARTY ELECTIONS EN BANC, respondent.

(AKB), petitioner, vs. COMMISSION

ON

[G.R. No. 203922. April 2, 2013.] ASSOCIATION OF PHILIPPINE ELECTRIC COOPERATIVES (APEC), represented by its President Congressman Ponciano D. Payuyo, petitioner, vs. COMMISSION ON ELECTIONS, respondent. [G.R. No. 203936. April 2, 2013.] AKSYON MAGSASAKA-PARTIDO TINIG NG MASA, represented by its President Michael Abas Kida, petitioner, vs. COMMISSION ON ELECTIONS EN BANC, respondent. [G.R. No. 203958. April 2, 2013.] KAPATIRAN NG MGA NAKULONG NA WALANG SALA, (KAKUSA), petitioner, vs. COMMISSION ON ELECTIONS, respondent.

INC.

[G.R. No. 203960. April 2, 2013.] 1ST CONSUMERS ALLIANCE FOR RURAL ENERGY, INC. CARE), petitioner, vs. COMMISSION ON ELECTIONS EN BANC,respondent.

(1-

[G.R. No. 203976. April 2, 2013.] ALLIANCE FOR RURAL AND AGRARIAN RECONSTRUCTION, (ARARO), petitioner, vs. COMMISSION ON ELECTIONS,respondent.

INC.

[G.R. No. 203981. April 2, 2013.] ASSOCIATION FOR RIGHTEOUSNESS ADVOCACY ON LEADERSHIP (ARAL) PARTY-LIST, represented herein by Ms. Lourdes L. Agustin, the party's Secretary General, petitioner, vs. COMMISSION ON ELECTIONS, respondent. [G.R. No. 204002. April 2, 2013.] ALLIANCE FOR RURAL ELECTIONS, respondent.

CONCERNS, petitioner, vs. COMMISSION

ON

[G.R. No. 204094. April 2, 2013.] ALLIANCE FOR NATIONALISM AND (ANAD), petitioner, vs. COMMISSION ON ELECTIONS, respondent. [G.R. No. 204100. April 2, 2013.]

DEMOCRACY

1-BRO PHILIPPINE GUARDIANS BROTHERHOOD, INC., (1BRO-PGBI) formerly PGBI, petitioner, vs. COMMISSION ON ELECTIONS EN BANC, respondent. [G.R. No. 204122. April 2, 2013.] 1 GUARDIANS NATIONALIST PHILIPPINES, INC., (1GANAP/GUARDIANS), petitioner, vs. COMMISSION ON ELECTIONS EN BANC composed of SIXTO S. BRILLANTES, JR., Chairman, RENE V. SARMIENTO, Commissioner, LUCENITO N. TAGLE, Commissioner, ARMANDO C. VELASCO, Commissioner, ELIAS R. YUSOPH, Commissioner, and CHRISTIAN ROBERT S. LIM, Commissioner,respondents. [G.R. No. 204125. April 2, 2013.] AGAPAY NG INDIGENOUS PEOPLES RIGHTS ALLIANCE, INC. (A-IPRA), represented by its Secretary General, Ronald D. Macaraig, petitioner, vs. COMMISSION ON ELECTIONS EN BANC, respondent. [G.R. No. 204126. April 2, 2013.] KAAGAPAY NG NAGKAKAISANG AGILANG PILIPINONG MAGSASAKA (KAP), formerly known as AKO AGILA NG NAGKAKAISANG MAGSASAKA (AKO AGILA), represented by its Secretary General, Leo R. San Buenaventura, petitioner, vs. COMMISSION ON ELECTIONS, respondent. [G.R. No. 204139. April 2, 2013.] ALAB NG MAMAMAHAYAG (ALAM), represented by Atty. Berteni Cataluña Causing, petitioner, vs. COMMISSION ON ELECTIONS, respondent. [G.R. No. 204141. April 2, 2013.] BANTAY PARTY LIST, represented by Maria Evangelina F. President, petitioner, vs. COMMISSION ON ELECTIONS,respondent.

Palparan,

[G.R. No. 204153. April 2, 2013.] PASANG MASDA NATIONWIDE PARTY represented by its President Roberto "Ka Obet" Martin, petitioner, vs. COMMISSION ON ELECTIONS, respondent. [G.R. No. 204158. April 2, 2013.] ABROAD PARTY LIST, petitioner, vs. COMMISSION ON ELECTIONS, CHAIRMAN SIXTO S. BRILLANTES, JR., COMMISSIONERS RENE V. SARMIENTO, ARMANDO C. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM,

MARIA GRACIA CIELO M. PADACA, LUCENITO TAGLE, AND ALL OTHER PERSONS ACTING ON THEIR BEHALF, respondents. [G.R. No. 204174. April 2, 2013.] AANGAT TAYO PARTY LIST-PARTY, represented by its President Simeon T. Silva, Jr., petitioner, vs. COMMISSION ON ELECTIONS EN BANC, respondent. [G.R. No. 204216. April 2, 2013.] COCOFED-PHILIPPINE COCONUT PRODUCERS INC., petitioner, vs. COMMISSION ON ELECTIONS, respondent.

FEDERATION,

[G.R. No. 204220. April 2, 2013.] ABANG LINGKOD PARTY-LIST, petitioner, vs. COMMISSION ON ELECTIONS EN BANC, respondent. [G.R. No. 204236. April 2, 2013.] FIRM 24-K ASSOCIATION, ELECTIONS, respondent.

INC., petitioner, vs. COMMISSION

ON

[G.R. No. 204238. April 2, 2013.] ALLIANCE OF BICOLNON PARTY ELECTIONS EN BANC, respondent.

(ABP), petitioner, vs. COMMISSION

ON

[G.R. No. 204239. April 2, 2013.] GREEN FORCE FOR THE ENVIRONMENT SONS AND DAUGHTERS OF MOTHER EARTH (GREENFORCE), petitioner, vs. COMMISSION ON ELECTIONS, respondent. [G.R. No. 204240. April 2, 2013.] AGRI-AGRA NA REPORMA PARA SA MAGSASAKA NG PILIPINAS MOVEMENT (AGRI), represented by its Secretary General, Michael Ryan A. Enriquez, petitioner, vs. COMMISSION ON ELECTIONS EN BANC, respondent. [G.R. No. 204263. April 2, 2013.] A BLESSED PARTY LIST A.K.A. BLESSED FEDERATION OF FARMERS AND FISHERMEN INTERNATIONAL, INC., petitioner, vs.COMMISSION ON ELECTIONS, respondent.

[G.R. No. 204318. April 2, 2013.] UNITED MOVEMENT AGAINST DRUGS FOUNDATION (UNIMAD) PARTYLIST, petitioner, vs. COMMISSION ON ELECTIONS,respondent. [G.R. No. 204321. April 2, 2013.] ANG AGRIKULTURA NATIN ISULONG (AANI), represented by its Secretary General Jose C. Policarpio, Jr., petitioner, vs.COMMISSION ON ELECTIONS, respondent. [G.R. No. 204323. April 2, 2013.] BAYANI PARTYLIST as represented by Homer Bueno, Fitrylin Dalhani, Israel de Castro, Dante Navarro and Guiling Mamondiong, petitioner, vs. COMMISSION ON ELECTIONS, CHAIRMAN SIXTO S. BRILLANTES, JR., COMMISSIONERS RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO C. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM, and MARIA GRACIA CIELO M. PADACA, respondents. [G.R. No. 204341. April 2, 2013.] ACTION LEAGUE OF INDIGENOUS MASSES (ALIM) PARTY-LIST, represented herein by its President Fatani S. Abdul Malik,petitioner, vs. COMMISSION ON ELECTIONS, respondent. [G.R. No. 204356. April 2, 2013.] BUTIL FARMERS ELECTIONS, respondent.

PARTY, petitioner, vs. COMMISSION

ON

[G.R. No. 204358. April 2, 2013.] ALLIANCE OF ADVOCATES IN MINING ADVANCEMENT FOR NATIONAL PROGRESS (AAMA), petitioner, vs. COMMISSION ON ELECTIONS EN BANC, respondent. [G.R. No. 204359. April 2, 2013.] SOCIAL MOVEMENT FOR ACTIVE REFORM AND TRANSPARENCY (SMART), represented by its Chairman, Carlito B. Cubelo,petitioner, vs. COMMISSION ON ELECTIONS EN BANC, respondent. [G.R. No. 204364. April 2, 2013.]

ADHIKAIN AT KILUSAN NG ORDINARYONG-TAO, PARA SA LUPA, PABAHAY, HANAPBUHAY AT KAUNLARAN (AKO BUHAY),petitioner, vs. COMMISSION ON ELECTIONS EN BANC, SIXTO S. BRILLANTES, JR., RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO C. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM, and MA. GRACIA CIELO M. PADACA, in their capacities as Commissioners thereof, respondents. [G.R. No. 204367. April 2, 2013.] AKBAY KALUSUGAN INCORPORATION (AKIN), petitioner, vs. COMMISSION ON ELECTIONS, respondent. [G.R. No. 204370. April 2, 2013.] AKO AN BISAYA (AAB), represented by its Secretary General, Rodolfo T. Tuazon, petitioner, vs. COMMISSION ON ELECTIONS,respondent. [G.R. No. 204374. April 2, 2013.] BINHI-PARTIDO NG MGA MAGSASAKA PARA SA MGA MAGSASAKA, petitioner, vs. COMMISSION ON ELECTIONS EN BANC,respondent. [G.R. No. 204379. April 2, 2013.] ALAGAD NG SINING (ASIN) represented by its President, Faye Maybelle Lorenz, petitioner, vs. COMMISSION ON ELECTIONS,respondent. [G.R. No. 204394. April 2, 2013.] ASSOCIATION OF GUARD UTILITY HELPER, AIDER, RIDER, DRIVER/DOMESTIC HELPER, JANITOR, AGENT AND NANNY OF THE PHILIPPINES, INC. (GUARDJAN), petitioner, vs. COMMISSION ON ELECTIONS, respondent. [G.R. No. 204402. April 2, 2013.] KALIKASAN PARTY-LIST, represented by its President, Clemente G. Bautista, Jr., and Secretary General, Frances Q. Quimpo,petitioner, vs. COMMISSION ON ELECTIONS EN BANC, respondent. [G.R. No. 204408. April 2, 2013.] PILIPINO ASSOCIATION FOR COUNTRY-URBAN POOR YOUTH ADVANCEMENT AND WELFARE (PACYAW), petitioner, vs.COMMISSION ON ELECTIONS, respondent.

[G.R. No. 204410. April 2, 2013.] 1-UNITED TRANSPORT KOALISYON (1-UTAK), petitioner, vs. COMMISSION ON ELECTIONS, respondent. [G.R. No. 204421. April 2, 2013.] COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC. SENIOR CITIZEN PARTY-LIST, represented herein by its 1st nominee and Chairman, Francisco G. Datol, Jr., petitioner, vs. COMMISSION ON ELECTIONS, respondent. [G.R. No. 204425. April 2, 2013.] COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC., petitioner, vs. COMMISSION ON ELECTIONS and ANY OF ITS OFFICERS AND AGENTS, ACTING FOR AND IN ITS BEHALF, INCLUDING THE CHAIR AND MEMBERS OF THE COMMISSION, respondents. [G.R. No. 204426. April 2, 2013.] ASSOCIATION OF LOCAL ATHLETICS ENTREPRENEURS AND HOBBYISTS, INC. (ALA-EH), petitioner, vs. COMMISSION ON ELECTIONS EN BANC, SIXTO S. BRILLANTES, JR., RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO C. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM, and MA. GRACIA CIELO M. PADACA, in their respective capacities as COMELEC Chairperson and Commissioners, respondents. [G.R. No. 204428. April 2, 2013.] ANG GALING PINOY (AG), represented by its Secretary General, Bernardo R. Corella, Jr., petitioner, vs. COMMISSION ON ELECTIONS, respondent. [G.R. No. 204435. April 2, 2013.] 1 ALLIANCE ADVOCATING AUTONOMY PARTY (1AAAP), petitioner, vs. COMMISSION ON ELECTIONS EN BANC, respondent. [G.R. No. 204436. April 2, 2013.] ABYAN ILONGGO PARTY (AI), represented by its Party President, Rolex T. Suplico, petitioner, vs. COMMISSION ON ELECTIONS EN BANC, respondent. [G.R. No. 204455. April 2, 2013.]

MANILA TEACHER SAVINGS AND LOAN ASSOCIATION, INC., petitioner, vs. COMMISSION ON ELECTIONS EN BANC, respondent. [G.R. No. 204484. April 2, 2013.] PARTIDO NG BAYAN ANG BIDA (PBB), represented by its Secretary General, Roger M. Federazo, petitioner, vs. COMMISSION ON ELECTIONS, respondent. [G.R. No. 204485. April 2, 2013.] ALLIANCE OF ORGANIZATIONS, NETWORKS AND ASSOCIATIONS OF THE PHILIPPINES, INC. (ALONA), petitioner, vs.COMMISSION ON ELECTIONS EN BANC, respondent. [G.R. No. 204486. April 2, 2013.] 1ST KABALIKAT NG BAYAN GINHAWANG SANGKATAUHAN KABAGIS), petitioner, vs. COMMISSION ON ELECTIONS,respondent.

(1ST

[G.R. No. 204490. April 2, 2013.] PILIPINAS PARA SA PINOY (PPP), petitioner, vs. COMMISSION ON ELECTIONS EN BANC, respondent.

DECISION

CARPIO, J p: The Cases These cases constitute 54 Petitions for Certiorari and Petitions for Certiorari and Prohibition 1 filed by 52 party-list groups and organizations assailing the Resolutions issued by the Commission on Elections (COMELEC) disqualifying them from participating in the 13 May 2013 party-list elections, either by denial of their petitions for registration under the party-list system, or cancellation of their registration and accreditation as party-list organizations. This Court resolved to consolidate the 54 petitions in the Resolutions dated 13 November 2012, 2 20 November 2012, 3 27 November 2012, 4 4 December 2012, 5 11 December 2012, 6 and 19 February 2013. 7 The Facts Pursuant to the provisions of Republic Act No. 7941 (R.A. No. 7941) and COMELEC Resolution Nos. 9366 and 9531, approximately 280 groups and organizations registered and manifested their desire to participate in the 13 May 2013 party-list elections. G.R. No. SPP No.

Group

Grounds for Denial

A.Via the COMELEC En Banc's automatic review of the COMELEC Division's resolutions approving registration of groups/organizations Resolution dated 23 November 2012 8 1 204379 12-099 Alagad ng (PLM) Sining (ASIN)

-

The "artists" sector is not considered marginalized and underrepresented; Failure to prove track record; and Failure of the nominees to qualify under RA 7941 and Ang Bagong Bayani.

Resolution dated 27 November 2012 9 2

204455

12-041 (PLM)

Manila Teachers Savings and Loan Association, Inc. (Manila Teachers)

-

3

204426

12-011 (PLM)

Association of Local Athletics Entrepreneurs and Hobbyists, Inc. (ALA-EH) Resolution dated 27 November 2012 10 4 204435 12-057 1 Alliance (PLM) Advocating Autonomy Party (1AAAP)

-

A non-stock savings and loan association cannot be considered marginalized and underrepresented; and The first and second nominees are not teachers by profession. Failure to show that its members belong to the marginalized; and

-

Failure of the nominees to qualify.

-

Failure of the nominees to qualify: although registering as a regional political party, two of the nominees are not residents of the region; and four of the five nominees do not belong to the marginalized and underrepresented.

Resolution dated 27 November 2012 11 5

204367

12-104 (PL)

Akbay Kalusugan (AKIN), Inc. Resolution dated 29 November 2012 12

-

Failure of the group to show that its nominees belong to the urban poor sector.

6

204370

12-011 (PP)

-

Failure to represent a marginalized sector of society, despite the formation of a sectoral wing for the benefit of farmers of Region 8; Constituency has district representatives;

Ako An Bisaya (AAB)

-

-

Lack of track record in representing peasants and farmers; and Nominees are neither farmers nor peasants.

Resolution dated 4 December 2012 13 7

204436

12-009 (PP), 12-165 (PLM)

Abyan Ilonggo Party (AI)

-

-

Failure to show that the party represents a marginalized and underrepresented sector, as the Province of Iloilo has district representatives; Untruthful statements in the memorandum; and Withdrawal of three of its five nominees.

Resolution dated 4 December 2012 14 8

204485

12-175 (PL)

Alliance of Organizations, Associations of the Philippines, Inc. (ALONA)

-

Failure to establish that the group can represent 14 Networks and sectors;

-

The sectors of homeowners' associations, entrepreneurs and cooperatives are not marginalized and underrepresented; and The nominees do not belong to the marginalized and underrepresented.

-

B.Via the COMELEC En Banc's review on motion for reconsideration of the COMELEC Division's resolutions denying registration of groups and organizations Resolution dated 7 November 2012 15 9

204139

12-127 (PL)

Alab ng Mamamahayag (ALAM)

-

Failure to prove track record as an organization;

-

Failure to show that the group actually represents the marginalized and underrepresented; and Failure to establish that the group can represent all sectors it seeks to represent.

-

Resolution dated 7 November 2012 16 10

204402

12-061 (PP)

Kalikasan PartyList

-

The group reflects an advocacy for the environment, and is not

(KALIKASAN) -

-

representative of the marginalized and underrepresented; There is no proof that majority of its members belong to the marginalized and underrepresented; The group represents sectors with conflicting interests; and The nominees do not belong to the sector which the group claims to represent.

Resolution dated 14 November 2012 17 11

204394

Association of Guard, Utility Helper, Aider, Rider, Driver/ Domestic Helper, Janitor, Agent and Nanny of the Philippines, Inc. (GUARDJAN) Resolution dated 5 December 2012 18

-

Failure to prove membership base and track record;

-

Failure to present activities that sufficiently benefited its intended constituency; and The nominees do not belong to any of the sectors which the group seeks to represent.

12

-

204490

12-145 (PL)

12-073 (PLM)

Pilipinas Para sa Pinoy (PPP)

-

Failure to show that the group represents a marginalized and underrepresented sector, as Region 12 has district representatives; and - Failure to show a track record of undertaking programs for the welfare of the sector the group seeks to represent. In a Resolution dated 5 December 2012, 19 the COMELEC En Banc affirmed the COMELEC Second Division's resolution to grant Partido ng Bayan ng Bida's (PBB) registration and accreditation as a political party in the National Capital Region. However, PBB was denied participation in the 13 May 2013 party-list elections because PBB does not represent any "marginalized and underrepresented" sector; PBB failed to apply for registration as a party-list group; and PBB failed to establish its track record as an organization that seeks to uplift the lives of the "marginalized and underrepresented." 20 SDHCac These 13 petitioners (ASIN, Manila Teachers, ALA-EH, 1AAAP, AKIN, AAB, AI, ALONA, ALAM, KALIKASAN, GUARDJAN, PPP, and PBB) were not able to secure a mandatory injunction from this Court. The COMELEC, on 7 January 2013 issued Resolution No. 9604, 21 and excluded the names of these 13 petitioners in the printing of the official ballot for the 13 May 2013 party-list elections.

Pursuant to paragraph 2 22 of Resolution No. 9513, the COMELEC En Banc scheduled summary evidentiary hearings to determine whether the groups and organizations that filed manifestations of intent to participate in the 13 May 2013 party-list elections have continually complied with the requirements of R.A. No. 7941 and Ang Bagong Bayani-OFW Labor Party v. COMELEC 23 (Ang Bagong Bayani). The COMELEC disqualified the following groups and organizations from participating in the 13 May 2013 party-list elections: G.R. No. SPP No. Group Resolution dated 10 October 2012 24 1203818- 12-154 19(PLM) 12-177 (PLM)

Grounds for Denial

AKO Bicol Political Party (AKB) -

Retained registration and accreditation as a political party, but denied participation in the May 2013 party-list elections Failure to represent any marginalized and underrepresented sector; The Bicol region already has representatives in Congress; and The nominees are not marginalized and underrepresented.

Resolution dated 11 October 2012 25 2

20376612-161 (PLM)

Atong Paglaum, Inc. (Atong Paglaum)

-

-

3

20398112-187 (PLM)

Association for Righteousness Advocacy on Leadership (ARAL)

-

-

4

20400212-188 (PLM)

Alliance for Rural Concerns (ARC)

-

Cancelled registration and accreditation The nominees do not belong to the sectors which the party represents; and The party failed to file its Statement of Contributions and Expenditures for the 2010 Elections. Cancelled registration and accreditation Failure to comply, and for violation of election laws; The nominees do not represent the sectors which the party represents; and There is doubt that the party is organized for religious purposes. Cancelled registration and accreditation Failure of the nominees to qualify; and Failure of the party to prove that

5

20431812-220 (PLM)

United Movement Against Drugs Foundation (UNIMAD) -

majority of its members belong to the sectors it seeks to represent. Cancelled registration and accreditation The sectors of drug counsellors and lecturers, veterans and the youth, are not marginalized and underrepresented; Failure to establish track record; and Failure of the nominees to qualify as representatives of the youth and young urban professionals.

Resolution dated 16 October 2012 26 6

7

20410012-196 (PLM)

20412212-223 (PLM)

1-Bro Philippine Guardians Brotherhood, Inc. (1 BROPGBI)

1 Guardians Nationalist Philippines, Inc. (1GANAP/ GUARDIANS)

-

-

-

-

Cancelled registration Failure to define the sector it seeks to represent; and The nominees do not belong to a marginalized and underrepresented sector. Cancelled registration The party is a military fraternity; The sector of community volunteer workers is too broad to allow for meaningful representation; and The nominees do not appear to belong to the sector of community volunteer workers.

8

20426312-257 (PLM)

Blessed Federation of Farmers and Fishermen International, Inc. (A BLESSED Party-List)

-

-

Cancelled registration Three of the seven and nominees do not belong to the sector of farmers and fishermen, the sector sought to be represented; and None of the nominees are registered voters of Region XI, the region sought to be represented.

Resolution dated 16 October 2012 27 9

20396012-260

1st Consumers

Cancelled registration

(PLM)

Alliance for Rural Energy, Inc. (1-CARE)

-

-

-

The sector of rural energy consumers is not marginalized and underrepresented; The party's track record is related to electric cooperatives and not rural energy consumers; and The nominees do not belong to the sector of rural energy consumers.

Resolution dated 16 October 2012 28 10

20392212-201 (PLM)

Association of Philippine Electric Cooperatives (APEC)

-

-

Cancelled registration and accreditation Failure to represent a marginalized and underrepresented sector; and The nominees do not belong to the sector that the party claims to represent.

Resolution dated 23 October 2012 29 11

20417412-232 (PLM)

Aangat Tayo Party-List Party (AT)

-

-

Cancelled registration and accreditation The incumbent representative in Congress failed to author or sponsor bills that are beneficial to the sectors that the party represents (women, elderly, youth, urban poor); and The nominees do not belong to the marginalized sectors that the party seeks to represent.

Resolution dated 23 October 2012 30 12

20397612-288 (PLM)

Alliance for Rural and Agrarian Reconstruction, Inc. (ARARO)

-

-

-

Cancelled registration and accreditation The interests of the peasant and urban poor sectors that the party represents differ; The nominees do not belong to the sectors that the party seeks to represent; Failure to show that three of the nominees are bona fide party

-

members; and Lack of a Board resolution to participate in the party-list elections.

Resolution dated 24 October 2012 31 13

20424012-279 (PLM)

Agri-Agra na Reporma Para sa Magsasaka ng Pilipinas Movement (AGRI)

-

-

14

20393612-248 (PLM)

Aksyon MagsasakaPartido Tinig ng Masa (AKMAPTM)

-

-

-

15

20412612-263 (PLM)

Kaagapay ng Nagkakaisang Agilang Pilipinong Magsasaka (KAP)

-

-

16

20436412-180 (PLM)

Adhikain at Kilusan ng Ordinaryong

-

Cancelled registration The party ceased to exist for more than a year immediately after the May 2010 elections; The nominees do not belong to the sector of peasants and farmers that the party seeks to represent; Only four nominees were submitted to the COMELEC; and Failure to show meaningful activities for its constituency. Cancelled registration Failure to show that majority of its members are marginalized and underrepresented; Failure to prove that four of its nine nominees actually belong to the farmers sector; and Failure to show that five of its nine nominees work on uplifting the lives of the members of the sector. Cancelled registration The Manifestation of Intent and Certificate of Nomination were not signed by an appropriate officer of the party; Failure to show track record for the farmers and peasants sector; and Failure to show that nominees actually belong to the sector, or that they have undertaken meaningful activities for the sector. Cancelled registration Failure to show that nominees actually belong to the sector, or

17

18

20414112-229 (PLM)

20440812-217 (PLM)

Tao Para sa Lupa, Pabahay, Hanapbuhay at Kaunlaran (AKO-BAHAY) The True Marcos Loyalist (for God, Country and People) Association of the Philippines, Inc. (BANTAY) Pilipino Association for Country — Urban Poor Youth Advancement and Welfare (PACYAW)

that they have undertaken meaningful activities for the sector.

-

-

-

-

-

19

20415312-277 (PLM)

Pasang Masda Nationwide Party (PASANG MASDA)

-

20

20395812-015 (PLM)

Kapatiran ng mga Nakulong na Walang Sala, Inc. (KAKUSA)

-

-

-

Cancelled registration Failure to show that majority of its members are marginalized and underrepresented; and Failure to prove that two of its nominees actually belong to the marginalized and underrepresented. Cancelled registration Change of sector (from urban poor youth to urban poor) necessitates a new application; Failure to show track record for the marginalized and underrepresented; Failure to prove that majority of its members and officers are from the urban poor sector; and The nominees are not members of the urban poor sector. Cancelled registration The party represents drivers and operators, who may have conflicting interests; and Nominees are either operators or former operators. Cancelled registration Failure to prove that majority of its officers and members belong to the marginalized and underrepresented; The incumbent representative in Congress failed to author or sponsor bills that are beneficial to the sector that the party represents (persons imprisoned without proof of guilt beyond reasonable doubt); Failure to show track record for the

-

marginalized and underrepresented; and The nominees did not appear to be marginalized and underrepresented.

Resolution dated 30 October 2012 32 21

20442812-256 (PLM)

Ang Galing Pinoy (AG) -

-

Cancelled registration and accreditation Failure to attend the summary hearing; Failure to show track record for the marginalized and underrepresented; and The nominees did not appear to be marginalized and underrepresented.

Resolution dated 7 November 2012 33 22

20409412-185 (PLM)

Alliance for Nationalism and Democracy (ANAD)

-

-

-

Cancelled registration and accreditation Failure to represent an identifiable marginalized and underrepresented sector; Only three nominees were submitted to the COMELEC; The nominees do not belong to the marginalized and underrepresented; and Failure to submit its Statement of Contribution and Expenditures for the 2007 Elections.

Resolution dated 7 November 2012 34 23

20423912-060 (PLM)

Green Force for the Environment Sons and Daughters of Mother Earth (GREENFORCE)

-

24

20423612-254

Firm 24-K

Cancelled registration and accreditation The party is an advocacy group and does not represent the marginalized and underrepresented; Failure to comply with the track record requirement; and The nominees are not marginalized citizens. Cancelled registration and

(PLM)

Association, Inc. (FIRM 24-K)

-

25

20434112-269 (PLM)

Action League of Indigenous Masses (ALIM)

-

-

-

accreditation The nominees do not belong to the sector that the party seeks to represent (urban poor and peasants of the National Capital Region); Only two of its nominees reside in the National Capital Region; and Failure to comply with the track record requirement. Cancelled registration and accreditation Failure to establish that its nominees are members of the indigenous people in the Mindanao and Cordilleras sector that the party seeks to represent; Only two of the party's nominees reside in the Mindanao and Cordilleras; and Three of the nominees do not appear to belong to the marginalized.

Resolution dated 7 November 2012 35 26

20435812-204 (PLM)

Alliance of Advocates in Mining Advancement for National Progress (AAMA)

-

-

Cancelled registration The sector it represents is a specifically defined group which may not be allowed registration under the party-list system; and Failure to establish that the nominees actually belong to the sector.

Resolution dated 7 November 2012 36 27

20435912-272 (PLM)

Social Movement for Active Reform and Transparency (SMART)

-

-

Cancelled registration The nominees are disqualified from representing the sectors that the party represents; Failure to comply with the track record requirement; and There is doubt as to whether majority of its members are marginalized and underrepresented.

Resolution dated 7 November 2012 37 28

20423812-173 (PLM)

Alliance of Bicolnon Party (ABP)

-

Cancelled registration and accreditation Defective registration and accreditation dating back to 2010; Failure to represent any sector; and Failure to establish that the nominees are employed in the construction industry, the sector it claims to represent.

Resolution dated 7 November 2012 38 29

20432312-210 (PLM)

Bayani Party List (BAYANI) -

-

Cancelled registration and accreditation Failure to prove a track record of trying to uplift the marginalized and underrepresented sector of professionals; and One nominee was declared unqualified to represent the sector of professionals.

Resolution dated 7 November 2012 39 30

20432112-252 (PLM)

Ang Agrikultura Natin Isulong (AANI)

-

-

Cancelled registration and accreditation Failure to establish a track record of enhancing the lives of the marginalized and underrepresented farmers which it claims to represent; and More than a majority of the party's nominees do not belong to the farmers sector.

Resolution dated 7 November 2012 40 31

20412512-292 (PLM)

Agapay ng Indigenous Peoples Rights Alliance, Inc. (A-IPRA)

-

-

Cancelled registration and accreditation Failure to prove that its five nominees are members of the indigenous people sector; Failure to prove that its five nominees actively participated in the

-

undertakings of the party; and Failure to prove that its five nominees are bona fide members.

Resolution dated 7 November 2012 41 32

20421612-202 (PLM)

Philippine Coconut Producers Federation, Inc. (COCOFED)

-

-

Cancelled registration and accreditation The party is affiliated with private and government agencies and is not marginalized; The party is assisted by the government in various projects; and The nominees are not members of the marginalized sector of coconut farmers and producers.

Resolution dated 7 November 2012 42 33

20422012-238 (PLM)

Abang Lingkod Party-List (ABANG LINGKOD)

-

-

-

Cancelled registration Failure to establish a track record of continuously representing the peasant farmers sector; Failure to show that its members actually belong to the peasant farmers sector; and Failure to show that its nominees are marginalized and underrepresented, have actively participated in programs for the advancement of farmers, and adhere to its advocacies.

Resolution dated 14 November 2012 43 34

20415812-158 (PLM)

Action Brotherhood for Active Dreamers, Inc. (ABROAD)

-

-

-

Resolution dated 28 November 2012 44

Cancelled registration and accreditation Failure to show that the party is actually able to represent all of the sectors it claims to represent; Failure to show a complete track record of its activities since its registration; and The nominees are not part of any of the sectors which the party seeks to represent.

35

20437412-228 (PLM)

Binhi-Partido ng mga Magsasaka Para sa mga Magsasaka (BINHI)

-

-

Cancelled registration and accreditation The party receives assistance from the government through the Department of Agriculture; and Failure to prove that the group is marginalized and underrepresented.

Resolution dated 28 November 2012 45 36

20435612-136 (PLM)

Butil Farmers Party (BUTIL) -

-

Cancelled registration and accreditation Failure to establish that the agriculture and cooperative sectors are marginalized and underrepresented; and The party's nominees neither appear to belong to the sectors they seek to represent, nor to have actively participated in the undertakings of the party.

Resolution dated 3 December 2012 46 37

20448612-194 (PLM)

1st Kabalikat ng Bayan Ginhawang Sangkatauhan (1st KABAGIS)

-

Cancelled registration and accreditation Declaration of untruthful statements; Failure to exist for at least one year; and None of its nominees belong to the labor, fisherfolk, and urban poor indigenous cultural communities sectors which it seeks to represent.

Resolution dated 4 December 2012 47 38

20441012-198 (PLM)

1-United Transport Koalisyon (1UTAK)

-

-

Resolution dated 4 December 2012 48

Cancelled accreditation The party represents drivers and operators, who may have conflicting interests; and The party's nominees do not belong to any marginalized and underrepresented sector.

39204421, 12-157 204425(PLM), 12-191 (PLM)

Coalition of Cancelled registration Senior Citizens - The party violated election laws in the because its nominees had a termPhilippines, Inc. sharing agreement. (SENIOR CITIZENS) These 39 petitioners (AKB, Atong Paglaum, ARAL, ARC, UNIMAD, 1BRO-PGBI, 1GANAP/GUARDIANS, A BLESSED Party-List, 1-CARE, APEC, AT, ARARO, AGRI, AKMA-PTM, KAP, AKO-BAHAY, BANTAY, PACYAW, PASANG MASDA, KAKUSA, AG, ANAD, GREENFORCE, FIRM 24-K, ALIM, AAMA, SMART, ABP, BAYANI, AANI, A-IPRA, COCOFED, ABANG LINGKOD, ABROAD, BINHI, BUTIL, 1st KABAGIS, 1-UTAK, SENIOR CITIZENS) were able to secure a mandatory injunction from this Court, directing the COMELEC to include the names of these 39 petitioners in the printing of the official ballot for the 13 May 2013 party-list elections. CSAaDE Petitioners prayed for the issuance of a temporary restraining order and/or writ of preliminary injunction. This Court issued Status Quo AnteOrders in all petitions. This Decision governs only the 54 consolidated petitions that were granted Status Quo Ante Orders, namely: G.R. No. SPP No. Resolution dated 13 November 2012 203818-19 12-154 (PLM) 12-177 (PLM) 203981

12-187 (PLM)

204002 203922

12-188 (PLM) 12-201 (PLM)

203960

12-260 (PLM)

203936

12-248 (PLM)

203958

12-015 (PLM)

203976

12-288 (PLM)

Group AKO Bicol Political Party (AKB) Association for Righteousness Advocacy on Leadership (ARAL) Alliance for Rural Concerns (ARC) Association of Philippine Electric Cooperatives (APEC) 1st Consumers Alliance for Rural Energy, Inc. (1-CARE) Aksyon Magsasaka-Partido Tinig ng Masa (AKMA-PTM) Kapatiran ng mga Nakulong na Walang Sala, Inc. (KAKUSA) Alliance for Rural and Agrarian Reconstruction, Inc. (ARARO)

Resolution dated 20 November 2012 204094

12-185 (PLM)

204125

12-292 (PLM)

204100

12-196 (PLM)

Resolution dated 27 November 2012 204141 12-229 (PLM)

Alliance for Nationalism and Democracy (ANAD) Agapay ng Indigenous Peoples Rights Alliance, Inc. (A-IPRA) 1-Bro Philippine Guardians Brotherhood, Inc. (1BRO-PGBI) The True Marcos Loyalist (for God,

204240

12-279 (PLM)

204216

12-202 (PLM)

204158

12-158 (PLM)

Country and People) Association of the Philippines, Inc. (BANTAY) Agri-Agra na Reporma Para sa Magsasaka ng Pilipinas Movement (AGRI) Philippine Coconut Producers Federation, Inc. (COCOFED) Action Brotherhood for Active Dreamer, Inc. (ABROAD)

Resolutions dated 4 December 2012 204122

12-223 (PLM)

203766 204318

12-161 (PLM) 12-220 (PLM)

204263

12-257 (PLM)

204174 204126

12-232 (PLM) 12-263 (PLM)

204364

12-180 (PLM)

204139 204220

12-127 (PL) 12-238 (PLM)

204236

12-254 (PLM)

204238 204239

12-173 (PLM) 12-060 (PLM)

204321 204323 204341

12-252 (PLM) 12-210 (PLM) 12-269 (PLM)

204358

12-204 (PLM)

204359

12-272 (PLM)

204356

12-136 (PLM)

1 Guardians Nationalist Philippines, Inc. (1GANAP/GUARDIANS) Atong Paglaum, Inc. (Atong Paglaum) United Movement Against Drugs Foundation (UNIMAD) Blessed Federation of Farmers and Fishermen International, Inc. (A BLESSED Party-List) Aangat Tayo Party-List Party (AT) Kaagapay ng Nagkakaisang Agilang Pilipinong Magsasaka (KAP) Adhikain at Kilusan ng Ordinaryong Tao Para sa Lupa, Pabahay, Hanapbuhay at Kaunlaran (AKO-BAHAY) Alab ng Mamamahayag (ALAM) Abang Lingkod Party-List (ABANG LINGKOD) Firm 24-K Association, Inc. (FIRM 24K) Alliance of Bicolnon Party (ABP) Green Force for the Environment Sons and Daughters of Mother Earth (GREENFORCE) Ang Agrikultura Natin Isulong (AANI) Bayani Party List (BAYANI) Action League of Indigenous Masses (ALIM) Alliance of Advocates in Mining Advancement for National Progress (AAMA) Social Movement for Active Reform and Transparency (SMART) Butil Farmers Party (BUTIL)

Resolution dated 11 December 2012 204402 12-061 (PL) 204394 12-145 (PL)

204408

12-217 (PLM)

204428 204490 204379 204367 204426

12-256 (PLM) 12-073 (PLM) 12-099 (PLM) 12-104 (PL) 12-011 (PLM)

204455

12-041 (PLM)

204374

12-228 (PLM)

204370 204435

12-011 (PP) 12-057 (PLM)

204486

12-194 (PLM)

204410

12-198 (PLM)

204421, 204425 204436

12-157 (PLM) 12-191 (PLM) 12-009 (PP), 12-165 (PLM) 12-175 (PL)

204485

204484 11-002 Resolution dated 11 December 2012 204153 12-277 (PLM)

Kalikasan Party-List (KALIKASAN) Association of Guard, Utility Helper, Aider, Rider, Driver/Domestic Helper, Janitor, Agent and Nanny of the Philippines, Inc. (GUARDJAN) Pilipino Association for Country — Urban Poor Youth Advancement and Welfare (PACYAW) Ang Galing Pinoy (AG) Pilipinas Para sa Pinoy (PPP) Alagad ng Sining (ASIN) Akbay Kalusugan (AKIN) Association of Local Athletics Entrepreneurs and Hobbyists, Inc. (ALA-EH) Manila Teachers Savings and Loan Association, Inc. (Manila Teachers) Binhi-Partido ng mga Magsasaka Para sa mga Magsasaka (BINHI) Ako An Bisaya (AAB) 1 Alliance Advocating Autonomy Party (1AAAP) 1st Kabalikat ng Bayan Ginhawang Sangkatauhan (1st KABAGIS) 1-United Transport Koalisyon (1UTAK) Coalition of Senior Citizens in the Philippines, Inc. (SENIOR CITIZENS) Abyan Ilonggo Party (AI) Alliance of Organizations, Networks and Associations of the Philippines, Inc. (ALONA) Partido ng Bayan ng Bida (PBB) Pasang Masda Nationwide Party (PASANG MASDA)

The Issues We rule upon two issues: first, whether the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in disqualifying petitioners from participating in the 13 May 2013 party-list elections, either by denial of their new petitions for registration under the party-list system, or by cancellation of their existing registration and accreditation as party-list organizations; and second, whether the criteria for participating in the party-list system laid down in Ang Bagong Bayani and Barangay Association for National Advancement and Transparency v. Commission on Elections 49 (BANAT) should be applied by the COMELEC in the coming 13 May 2013 party-list elections.

The Court's Ruling We hold that the COMELEC did not commit grave abuse of discretion in following prevailing decisions of this Court in disqualifying petitioners from participating in the coming 13 May 2013 party-list elections. However, since the Court adopts in this Decision new parameters in the qualification of national, regional, and sectoral parties under the party-list system, thereby abandoning the rulings in the decisions applied by the COMELEC in disqualifying petitioners, we remand to the COMELEC all the present petitions for the COMELEC to determine who are qualified to register under the party-list system, and to participate in the coming 13 May 2013 party-list elections, under the new parameters prescribed in this Decision. The Party-List System The 1987 Constitution provides the basis for the party-list system of representation. Simply put, the party-list system is intended to democratize political power by giving political parties that cannot win in legislative district elections a chance to win seats in the House of Representatives. 50The voter elects two representatives in the House of Representatives: one for his or her legislative district, and another for his or her party-list group or organization of choice. The 1987 Constitution provides: cCTESa Section 5, Article VI (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to partylist representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. Sections 7 and 8, Article IX-C Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as provided in this Constitution. Sec. 8. Political parties, or organizations or coalitions registered under the party-list system, shall not be represented in the voters' registration boards, boards of election inspectors, boards of canvassers, or other similar bodies. However, they shall be entitled to appoint poll watchers in accordance with law. Commissioner Christian S. Monsod, the main sponsor of the party-list system, stressed that "the party-list system is not synonymous with that of the sectoral representation." 51 The constitutional provisions on the party-list system should be read in light of the following discussion among its framers: SEDaAH MR. MONSOD: ....

I would like to make a distinction from the beginning that the proposal for the party list system is not synonymous with that of the sectoral representation. Precisely, the party list system seeks to avoid the dilemma of choice of sectors and who constitute the members of the sectors. In making the proposal on the party list system, we were made aware of the problems precisely cited by Commissioner Bacani of which sectors will have reserved seats. In effect, a sectoral representation in the Assembly would mean that certain sectors would have reserved seats; that they will choose among themselves who would sit in those reserved seats. And then, we have the problem of which sector because as we will notice in Proclamation No. 9, the sectors cited were the farmers, fishermen, workers, students, professionals, business, military, academic, ethnic and other similar groups. So these are the nine sectors that were identified here as "sectoral representatives" to be represented in this Commission. The problem we had in trying to approach sectoral representation in the Assembly was whether to stop at these nine sectors or include other sectors. And we went through the exercise in a caucus of which sector should be included which went up to 14 sectors. And as we all know, the longer we make our enumeration, the more limiting the law become because when we make an enumeration we exclude those who are not in the enumeration. Second, we had the problem of who comprise the farmers. Let us just say the farmers and the laborers. These days, there are many citizens who are called "hyphenated citizens." A doctor may be a farmer; a lawyer may also be a farmer. And so, it is up to the discretion of the person to say "I am a farmer" so he would be included in that sector. The third problem is that when we go into a reserved seat system of sectoral representation in the Assembly, we are, in effect, giving some people two votes and other people one vote. We sought to avoid these problems by presenting a party list system. Under the party list system, there are no reserved seats for sectors. Let us say, laborers and farmers can form a sectoral party or a sectoral organization that will then register and present candidates of their party. How do the mechanics go? Essentially, under the party list system, every voter has two votes, so there is no discrimination. First, he will vote for the representative of his legislative district. That is one vote. In that same ballot, he will be asked: What party or organization or coalition do you wish to be represented in the Assembly? And here will be attached a list of the parties, organizations or coalitions that have been registered with the COMELEC and are entitled to be put in that list. This can be a regional party, a sectoral party, a national party, UNIDO, Magsasaka or a regional party in Mindanao. One need not be a farmer to say that he wants the farmers' party to be represented in the Assembly. Any citizen can vote for any party. At the end of the day, the COMELEC will then tabulate the votes that had been garnered by each party or each organization — one does not have to be a political party and register in order to participate as a party — and count the votes and from there derive the percentage of the votes that had been cast in favor of a party, organization or coalition. ScCIaA When such parties register with the COMELEC, we are assuming that 50 of the 250 seats will be for the party list system. So, we have a limit of 30 percent of 50. That means that the maximum that any party can get out of these 50 seats is 15. When the parties register they then submit a list of 15 names. They have to submit these names because these nominees have to meet the minimum qualifications of a Member of the National Assembly. At the end of the day, when the votes are tabulated, one gets the percentages. Let us say, UNIDO

gets 10 percent or 15 percent of the votes; KMU gets 5 percent; a women's party gets 2 1/2 percent and anybody who has at least 2 1/2 percent of the vote qualifies and the 50 seats are apportioned among all of these parties who get at least 2 1/2 percent of the vote. What does that mean? It means that any group or party who has a constituency of, say, 500,000 nationwide gets a seat in the National Assembly. What is the justification for that? When we allocate legislative districts, we are saying that any district that has 200,000 votes gets a seat. There is no reason why a group that has a national constituency, even if it is a sectoral or special interest group, should not have a voice in the National Assembly. It also means that, let us say, there are three or four labor groups, they all register as a party or as a group. If each of them gets only one percent or five of them get one percent, they are not entitled to any representative. So, they will begin to think that if they really have a common interest, they should band together, form a coalition and get five percent of the vote and, therefore, have two seats in the Assembly. Those are the dynamics of a party list system. We feel that this approach gets around the mechanics of sectoral representation while at the same time making sure that those who really have a national constituency or sectoral constituency will get a chance to have a seat in the National Assembly. These sectors or these groups may not have the constituency to win a seat on a legislative district basis. They may not be able to win a seat on a district basis but surely, they will have votes on a nationwide basis. The purpose of this is to open the system. In the past elections, we found out that there were certain groups or parties that, if we count their votes nationwide; have about 1,000,000 or 1,500,000 votes. But they were always third place or fourth place in each of the districts. So, they have no voice in the Assembly. But this way, they would have five or six representatives in the Assembly even if they would not win individually in legislative districts. So, that is essentially the mechanics, the purpose and objectives of the party list system. EcHaAC BISHOP BACANI: Madam President, am I right in interpreting that when we speak now of party list system though we refer to sectors, we would be referring to sectoral party list rather than sectors and party list? MR. MONSOD: As a matter of fact, if this body accepts the party list system, we do not even have to mention sectors because the sectors would be included in the party list system. They can be sectoral parties within the party list system. xxx xxx xxx MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list system because we wanted to open up the political system to a pluralistic society through a multiparty system. . . . We are for opening up the system, and we would like very much for the sectors to be there. That is why one of the ways to do that is to put a ceiling on the number of representatives

from any single party that can sit within the 50 allocated under the party list system. . . . . CcAHEI xxx xxx xxx MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to political parties. My question is this: Are we going to classify for example Christian Democrats and Social Democrats as political parties? Can they run under the party list concept or must they be under the district legislation side of it only? MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner mentioned can field candidates for the Senate as well as for the House of Representatives. Likewise, they can also field sectoral candidates for the 20 percent or 30 percent, whichever is adopted, of the seats that we are allocating under the party list system. MR. MONSOD. In other words, the Christian Democrats can field district candidates and can also participate in the party list system? MR. VILLACORTA. Why not? When they come to the party list system, they will be fielding only sectoral candidates. MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list system? MR. VILLACORTA. Yes, why not? For as long as they field candidates who come from the different marginalized sectors that we shall designate in this Constitution. MR. MONSOD. Suppose Senator Tañada wants to run under BAYAN group and says that he represents the farmers, would he qualify? EaSCAH MR. VILLACORTA. No, Senator Tañada would not qualify. MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan dela Cruz is a farmer. Who would pass on whether he is a farmer or not? MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties, particularly minority political parties, are not prohibited to participate in the party list election if they can prove that they are also organized along sectoral lines. MR. MONSOD.

What the Commissioner is saying is that all political parties can participate because it is precisely the contention of political parties that they represent the broad base of citizens and that all sectors are represented in them. Would the Commissioner agree? MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political party, it will dominate the party list at mawawalang saysay din yung sector. Lalamunin mismo ng political parties ang party list system. Gusto ko lamang bigyan ng diin ang "reserve." Hindi ito reserve seat sa marginalized sectors. Kung titingnan natin itong 198 seats, reserved din ito sa political parties. MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question to Commissioner Villacorta and probably also to Commissioner Tadeo is that under this system, would UNIDO be banned from running under the party list system? CDHaET MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that condition alone, UNIDO may be allowed to register for the party list system. MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer? MR. TADEO. The same. MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines. IcESaA MR. MONSOD: Sino po ang magsasabi kung iyong kandidato ng UNIDO ay hindi talagang labor leader or isang laborer? Halimbawa, abogado ito. MR. TADEO: Iyong mechanics. MR. MONSOD: Hindi po mechanics iyon because we are trying to solve an inherent problem of sectoral representation. My question is: Suppose UNIDO fields a labor leader, would he qualify? MR. TADEO: The COMELEC may look into the truth of whether or not a political party is really organized along a specific sectoral line. If such is verified or confirmed, the political party may submit a list of individuals who are actually members of such sectors. The lists are to be published to give individuals or organizations belonging to such sector the chance to present evidence contradicting claims of membership in the said sector or to question the claims of the existence of such sectoral organizations or parties. This proceeding shall be conducted by the COMELEC and shall be summary in

character. In other words, COMELEC decisions on this matter are final and unappealable. 52 (Emphasis supplied) Indisputably, the framers of the 1987 Constitution intended the party-list system to include not only sectoral parties but also non-sectoral parties. The framers intended the sectoral parties to constitute a part, but not the entirety, of the party-list system. As explained by Commissioner Wilfredo Villacorta, political parties can participate in the party-list system "[F]or as long as they field candidates who come from the different marginalized sectors that we shall designate in this Constitution." 53 DTAaCE In fact, the framers voted down, 19-22, a proposal to reserve permanent seats to sectoral parties in the House of Representatives, or alternatively, to reserve the party-list system exclusively to sectoral parties. As clearly explained by Justice Jose C. Vitug in his Dissenting Opinion in Ang Bagong Bayani: The draft provisions on what was to become Article VI, Section 5, subsection (2), of the 1987 Constitution took off from two staunch positions — the first headed by Commissioner Villacorta, advocating that of the 20 per centum of the total seats in Congress to be allocated to party-list representatives half were to be reserved to appointees from the marginalized and underrepresented sectors. The proposal was opposed by some Commissioners. Mr. Monsod expressed the difficulty in delimiting the sectors that needed representation. He was of the view that reserving seats for the marginalized and underrepresented sectors would stunt their development into fullpledged parties equipped with electoral machinery potent enough to further the sectoral interests to be represented. The Villacorta group, on the other hand, was apprehensive that pitting the unorganized and less-moneyed sectoral groups in an electoral contest would be like placing babes in the lion's den, so to speak, with the bigger and more established political parties ultimately gobbling them up. R.A. 7941 recognized this concern when it banned the first five major political parties on the basis of party representation in the House of Representatives from participating in the party-list system for the first party-list elections held in 1998 (and to be automatically lifted starting with the 2001 elections). The advocates for permanent seats for sectoral representatives made an effort towards a compromise — that the party-list system be open only to underrepresented and marginalized sectors. This proposal was further whittled down by allocating only half of the seats under the party-list system to candidates from the sectors which would garner the required number of votes. The majority was unyielding. Voting 19-22, the proposal for permanent seats, and in the alternative the reservation of the party-list system to the sectoral groups, was voted down. The only concession the Villacorta group was able to muster was an assurance of reserved seats for selected sectors for three consecutive terms after the enactment of the 1987 Constitution, by which time they would be expected to gather and solidify their electoral base and brace themselves in the multi-party electoral contest with the more veteran political groups. 54 (Emphasis supplied) Thus, in the end, the proposal to give permanent reserved seats to certain sectors was outvoted. Instead, the reservation of seats to sectoral representatives was only allowed for the first three consecutive terms. 55 There can be no doubt whatsoever that the framers of the 1987 Constitution expressly rejected the proposal to make the party-list system exclusively for sectoral parties only, and that they clearly intended the party-list system to include both sectoral and non-sectoral parties. The common denominator between sectoral and non-sectoral parties is that they cannot expect to win in legislative district elections but they can garner, in nationwide elections, at least the same number of votes that winning candidates can garner in legislative district elections. The party-list system will be the entry point to membership in the House of Representatives for both these nontraditional parties that could not compete in legislative district elections. TaDSHC

The indisputable intent of the framers of the 1987 Constitution to include in the party-list system both sectoral and non-sectoral parties is clearly written in Section 5 (1), Article VI of the Constitution, which states: Section 5.(1) The House of Representative shall be composed of not more that two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (Emphasis supplied) Section 5 (1), Article VI of the Constitution is crystal-clear that there shall be "a party-list system of registered national, regional, and sectoral parties or organizations." The commas after the words "national[,]" and "regional[,]" separate national and regional parties from sectoral parties. Had the framers of the 1987 Constitution intended national and regional parties to be at the same time sectoral, they would have stated "national and regional sectoral parties." They did not, precisely because it was never their intention to make the party-list system exclusively sectoral. What the framers intended, and what they expressly wrote in Section 5 (1), could not be any clearer: the party-list system is composed of three different groups, and the sectoral parties belong to only one of the three groups. The text of Section 5 (1) leaves no room for any doubt that national and regional parties are separate from sectoral parties. Thus, the party-list system is composed of three different groups: (1) national parties or organizations; (2) regional parties or organizations; and (3) sectoral parties or organizations. National and regional parties or organizations are different from sectoral parties or organizations. National and regional parties or organizations need not be organized along sectoral lines and need not represent any particular sector. Moreover, Section 5 (2), Article VI of the 1987 Constitution mandates that, during the first three consecutive terms of Congress after the ratification of the 1987 Constitution, "one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector." This provision clearly shows again that the party-list system is not exclusively for sectoral parties for two obvious reasons. ASETHC First, the other one-half of the seats allocated to party-list representatives would naturally be open to non-sectoral party-list representatives, clearly negating the idea that the party-list system is exclusively for sectoral parties representing the "marginalized and underrepresented."Second, the reservation of one-half of the party-list seats to sectoral parties applies only for the first "three consecutive terms after the ratification of this Constitution," clearly making the party-list system fully open after the end of the first three congressional terms. This means that, after this period, there will be no seats reserved for any class or type of party that qualifies under the three groups constituting the party-list system. Hence, the clear intent, express wording, and party-list structure ordained in Section 5 (1) and (2), Article VI of the 1987 Constitution cannot be disputed: the party-list system is not for sectoral parties only, but also for non-sectoral parties. Republic Act No. 7941 or the Party-List System Act, which is the law that implements the party-list system prescribed in the Constitution, provides: Section 3. Definition of Terms. — (a) The party-list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or

coalitions thereof registered with the Commission on Elections (COMELEC). Component parties or organizations of a coalition may participate independently provided the coalition of which they form part does not participate in the party-list system. (b) A party means either a political party or a sectoral party or a coalition of parties. (c) A political party refers to an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for public office. It is a national party when its constituency is spread over the geographical territory of at least a majority of the regions. It is a regional party when its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region. (d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special interest and concerns of their sector. (e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interests or concerns. DCIEac (f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes. (Emphasis supplied) Section 3 (a) of R.A. No. 7941 defines a "party" as "either a political party or a sectoral party or a coalition of parties." Clearly, a political party is different from a sectoral party. Section 3 (c) of R.A. No. 7941 further provides that a "political party refers to an organized group of citizensadvocating an ideology or platform, principles and policies for the general conduct of government." On the other hand, Section 3 (d) of R.A. No. 7941 provides that a "sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5 hereofwhose principal advocacy pertains to the special interest and concerns of their sector." R.A. No. 7941 provides different definitions for a political and a sectoral party. Obviously, they are separate and distinct from each other. R.A. No. 7941 does not require national and regional parties or organizations to represent the "marginalized and underrepresented" sectors. To require all national and regional parties under the party-list system to represent the "marginalized and underrepresented" is to deprive and exclude, by judicial fiat, ideology-based and cause-oriented parties from the party-list system. How will these ideology-based and cause-oriented parties, who cannot win in legislative district elections, participate in the electoral process if they are excluded from the party-list system? To exclude them from the party-list system is to prevent them from joining the parliamentary struggle, leaving as their only option the armed struggle. To exclude them from the party-list system is, apart from being obviously senseless, patently contrary to the clear intent and express wording of the 1987 Constitution and R.A. No. 7941. aHcACT Under the party-list system, an ideology-based or cause-oriented political party is clearly different from a sectoral party. A political party need not be organized as a sectoral party and need not represent any particular sector. There is no requirement in R.A. No. 7941 that a national or regional political party must represent a "marginalized and underrepresented" sector. It is sufficient that the

political party consists of citizens who advocate the same ideology or platform, or the same governance principles and policies, regardless of their economic status as citizens. Section 5 of R.A. No. 7941 states that "the sectors shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals." 56 The sectors mentioned in Section 5 are not all necessarily "marginalized and underrepresented." For sure, "professionals" are not by definition "marginalized and underrepresented," not even the elderly, women, and the youth. However, professionals, the elderly, women, and the youth may "lack well-defined political constituencies," and can thus organize themselves into sectoral parties in advocacy of the special interests and concerns of their respective sectors. Section 6 of R.A. No. 7941 provides another compelling reason for holding that the law does not require national or regional parties, as well as certain sectoral parties in Section 5 of R.A. No. 7941, to represent the "marginalized and underrepresented." Section 6 provides the grounds for the COMELEC to refuse or cancel the registration of parties or organizations after due notice and hearing. Section 6. Refusal and/or Cancellation of Registration. — The COMELEC may, motu proprio or upon verified complaint of any interested party, refuse or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds: (1) It is a religious sect or denomination, organization or association organized for religious purposes; (2) It advocates violence or unlawful means to seek its goal; (3) It is a foreign party or organization; (4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes; (5) It violates or fails to comply with laws, rules or regulations relating to elections; (6) It declares untruthful statements in its petition; (7) It has ceased to exist for at least one (1) year; or (8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered. TcEaAS None of the 8 grounds to refuse or cancel registration refers to non-representation of the "marginalized and underrepresented." The phrase "marginalized and underrepresented" appears only once in R.A. No. 7941, in Section 2 on Declaration of Policy. 57 Section 2 seeks "to promote proportional representation in the election of representatives to the House of Representatives through the party-list system," which will enable Filipinos belonging to the "marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies," to become members of the House of Representatives. While the policy declaration in Section 2 of R.A. No. 7941 broadly refers to "marginalized and underrepresented sectors, organizations and parties," the specific implementing provisions of R.A. No. 7941 do not define or require that the sectors, organizations or parties must be "marginalized and underrepresented." On the contrary, to even interpret that all the sectors mentioned in Section 5 are "marginalized and underrepresented" would lead to absurdities.

How then should we harmonize the broad policy declaration in Section 2 of R.A. No. 7941 with its specific implementing provisions, bearing in mind the applicable provisions of the 1987 Constitution on the matter? The phrase "marginalized and underrepresented" should refer only to the sectors in Section 5 that are, by their nature, economically "marginalized and underrepresented." These sectors are: labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, overseas workers, and other similar sectors. For these sectors, a majority of the members of the sectoral party must belong to the "marginalized and underrepresented." The nominees of the sectoral party either must belong to the sector, or must have a track record of advocacy for the sector represented. Belonging to the "marginalized and underrepresented" sector does not mean one must "wallow in poverty, destitution or infirmity." It is sufficient that one, or his or her sector, is below the middle class. More specifically, the economically "marginalized and underrepresented" are those who fall in the low income group as classified by the National Statistical Coordination Board. 58 TAaCED The recognition that national and regional parties, as well as sectoral parties of professionals, the elderly, women and the youth, need not be "marginalized and underrepresented" will allow small ideology-based and cause-oriented parties who lack "well-defined political constituencies" a chance to win seats in the House of Representatives. On the other hand, limiting to the "marginalized and underrepresented" the sectoral parties for labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, overseas workers, and other sectors that by their nature are economically at the margins of society, will give the "marginalized and underrepresented" an opportunity to likewise win seats in the House of Representatives. This interpretation will harmonize the 1987 Constitution and R.A. No. 7941 and will give rise to a multi-party system where those "marginalized and underrepresented," both in economic and ideological status, will have the opportunity to send their own members to the House of Representatives. This interpretation will also make the party-list system honest and transparent, eliminating the need for relatively well-off party-list representatives to masquerade as "wallowing in poverty, destitution and infirmity," even as they attend sessions in Congress riding in SUVs. The major political parties are those that field candidates in the legislative district elections. Major political parties cannot participate in the party-list elections since they neither lack "well-defined political constituencies" nor represent "marginalized and underrepresented" sectors. Thus, the national or regional parties under the party-list system are necessarily those that do not belong to major political parties. This automatically reserves the national and regional parties under the party-list system to those who "lack well-defined political constituencies," giving them the opportunity to have members in the House of Representatives. To recall, Ang Bagong Bayani expressly declared, in its second guideline for the accreditation of parties under the party-list system, that "while even major political parties are expressly allowed by RA 7941 and the Constitution to participate in the party-list system, they must comply with the declared statutory policy of enabling 'Filipino citizens belonging to marginalized and underrepresented sectors . . . to be elected to the House of Representatives.'" However, the requirement in Ang Bagong Bayani, in its second guideline, that "the political party . . . must represent the marginalized and underrepresented," automatically disqualified major political parties from participating in the party-list system. This inherent inconsistency in Ang Bagong Bayani has been compounded by the COMELEC's refusal to register sectoral wings officially organized by major political parties. BANAT merely formalized the prevailing practice when it expressly prohibited major political parties from participating in the party-list system, even through their sectoral wings. STECDc Section 11 of R.A. No. 7941 expressly prohibited the "first five (5) major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress" from

participating in the May 1988 party-list elections. 59 Thus, major political parties can participate in subsequent party-list elections since the prohibition is expressly limited only to the 1988 party-list elections. However, major political parties should participate in party-list elections only through their sectoral wings. The participation of major political parties through their sectoral wings, a majority of whose members are "marginalized and underrepresented" or lacking in "well-defined political constituencies," will facilitate the entry of the "marginalized and underrepresented" and those who "lack well-defined political constituencies" as members of the House of Representatives. The 1987 Constitution and R.A. No. 7941 allow major political parties to participate in party-list elections so as to encourage them to work assiduously in extending their constituencies to the "marginalized and underrepresented" and to those who "lack well-defined political constituencies." The participation of major political parties in party-list elections must be geared towards the entry, as members of the House of Representatives, of the "marginalized and underrepresented" and those who "lack well-defined political constituencies," giving them a voice in law-making. Thus, to participate in party-list elections, a major political party that fields candidates in the legislative district elections must organize a sectoral wing, like a labor, peasant, fisherfolk, urban poor, professional, women or youth wing, that can register under the party-list system. Such sectoral wing of a major political party must have its own constitution, by-laws, platform or program of government, officers and members, a majority of whom must belong to the sector represented. The sectoral wing is in itself an independent sectoral party, and is linked to a major political party through a coalition. This linkage is allowed by Section 3 of R.A. No. 7941, which provides that "component parties or organizations of a coalition may participate independently (in party-list elections) provided the coalition of which they form part does not participate in the party-list system." Section 9 of R.A. No. 7941 prescribes the qualifications of party-list nominees. This provision prescribes a special qualification only for the nominee from the youth sector. Section 9. Qualifications of Party-List Nominees. — No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election. aSTAcH In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his term. A party-list nominee must be a bona fide member of the party or organization which he or she seeks to represent. In the case of sectoral parties, to be a bona fide party-list nominee one must either belong to the sector represented, or have a track record of advocacy for such sector. In disqualifying petitioners, the COMELEC used the criteria prescribed in Ang Bagong Bayani and BANAT. Ang Bagong Bayani laid down the guidelines for qualifying those who desire to participate in the party-list system: First, the political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Section 5 of RA 7941. . . .

Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to participate in the party-list system, they must comply with the declared statutory policy of enabling "Filipino citizens belonging to marginalized and underrepresented sectors . . . to be elected to the House of Representatives." . . . . xxx xxx xxx Third, . . . the religious sector may not be represented in the party-list system. . . . . cSCADE xxx xxx xxx Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941, which enumerates the grounds for disqualification as follows: "(1) It is a religious sect or denomination, organization or association, organized for religious purposes; (2) It advocates violence or unlawful means to seek its goal; (3) It is a foreign party or organization; (4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes; (5) It violates or fails to comply with laws, rules or regulations relating to elections; (6) It declares untruthful statements in its petition; (7) It has ceased to exist for at least one (1) year; or (8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the partylist system in the two (2) preceding elections for the constituency in which it has registered." Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by, the government. . . . . xxx xxx xxx Sixth, the party must not only comply with the requirements of the law; its nominees must likewise do so. Section 9 of RA 7941 reads as follows:TCcIaA "SEC. 9. Qualifications of Party-List Nominees. — No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election. In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth

sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his term." Seventh, not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees. . . . . Eighth, . . . the nominee must likewise be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole. (Emphasis supplied) In 2009, by a vote of 8-7 in BANAT, this Court stretched the Ang Bagong Bayani ruling further. In BANAT, the majority officially excluded major political parties from participating in party-list elections, 60 abandoning even the lip-service that Ang Bagong Bayani accorded to the 1987 Constitution and R.A. No. 7941 that major political parties can participate in party-list elections. TEacSA The minority in BANAT, however, believed that major political parties can participate in the party-list system through their sectoral wings. The minority expressed that "[e]xcluding the major political parties in party-list elections is manifestly against the Constitution, the intent of the Constitutional Commission, and R.A. No. 7941. This Court cannot engage in socio-political engineering and judicially legislate the exclusion of major political parties from the party-list elections in patent violation of the Constitution and the law." 61 The experimentations in socio-political engineering have only resulted in confusion and absurdity in the party-list system. Such experimentations, in clear contravention of the 1987 Constitution and R.A. No. 7941, must now come to an end. We cannot, however, fault the COMELEC for following prevailing jurisprudence in disqualifying petitioners. In following prevailing jurisprudence, the COMELEC could not have committed grave abuse of discretion. However, for the coming 13 May 2013 party-list elections, we must now impose and mandate the party-list system actually envisioned and authorized under the 1987 Constitution and R.A. No. 7941. In BANAT, this Court devised a new formula in the allocation of party-list seats, reversing the COMELEC's allocation which followed the then prevailing formula in Ang Bagong Bayani. In BANAT, however, the Court did not declare that the COMELEC committed grave abuse of discretion. Similarly, even as we acknowledge here that the COMELEC did not commit grave abuse of discretion, we declare that it would not be in accord with the 1987 Constitution and R.A. No. 7941 to apply the criteria in Ang Bagong Bayani and BANAT in determining who are qualified to participate in the coming 13 May 2013 party-list elections. For this purpose, we suspend our rule 62 that a party may appeal to this Court from decisions or orders of the COMELEC only if the COMELEC committed grave abuse of discretion. Thus, we remand all the present petitions to the COMELEC. In determining who may participate in the coming 13 May 2013 and subsequent party-list elections, the COMELEC shall adhere to the following parameters: 1. Three different groups may participate in the party-list system: (1) national parties or organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations. 2. National parties or organizations and regional parties or organizations do not need to organize along sectoral lines and do not need to represent any "marginalized and underrepresented" sector. 3. Political parties can participate in party-list elections provided they register under the party-list system and do not field candidates in legislative district elections. A political party, whether major or not, that fields candidates in legislative district elections can participate in party-list elections only through its sectoral wing that can separately register under the party-list system. The sectoral wing

is by itself an independent sectoral party, and is linked to a political party through a coalition. cdtai 4. Sectoral parties or organizations may either be "marginalized and underrepresented" or lacking in "well-defined political constituencies." It is enough that their principal advocacy pertains to the special interest and concerns of their sector. The sectors that are "marginalized and underrepresented" include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, and overseas workers. The sectors that lack "well-defined political constituencies" include professionals, the elderly, women, and the youth. 5. A majority of the members of sectoral parties or organizations that represent the "marginalized and underrepresented" must belong to the "marginalized and underrepresented" sector they represent. Similarly, a majority of the members of sectoral parties or organizations that lack "well-defined political constituencies" must belong to the sector they represent. The nominees of sectoral parties or organizations that represent the "marginalized and underrepresented," or that represent those who lack "well-defined political constituencies," either must belong to their respective sectors, or must have a track record of advocacy for their respective sectors. The nominees of national and regional parties or organizations must be bona-fidemembers of such parties or organizations. 6. National, regional, and sectoral parties or organizations shall not be disqualified if some of their nominees are disqualified, provided that they have at least one nominee who remains qualified. THESAD The COMELEC excluded from participating in the 13 May 2013 party-list elections those that did not satisfy these two criteria: (1) all national, regional, and sectoral groups or organizations must represent the "marginalized and underrepresented" sectors, and (2) all nominees must belong to the "marginalized and underrepresented" sector they represent. Petitioners may have been disqualified by the COMELEC because as political or regional parties they are not organized along sectoral lines and do not represent the "marginalized and underrepresented." Also, petitioners' nominees who do not belong to the sectors they represent may have been disqualified, although they may have a track record of advocacy for their sectors. Likewise, nominees of non-sectoral parties may have been disqualified because they do not belong to any sector. Moreover, a party may have been disqualified because one or more of its nominees failed to qualify, even if the party has at least one remaining qualified nominee. As discussed above, the disqualification of petitioners, and their nominees, under such circumstances is contrary to the 1987 Constitution and R.A. No. 7941. This Court is sworn to uphold the 1987 Constitution, apply its provisions faithfully, and desist from engaging in socio-economic or political experimentations contrary to what the Constitution has ordained. Judicial power does not include the power to re-write the Constitution. Thus, the present petitions should be remanded to the COMELEC not because the COMELEC committed grave abuse of discretion in disqualifying petitioners, but because petitioners may now possibly qualify to participate in the coming 13 May 2013 party-list elections under the new parameters prescribed by this Court. WHEREFORE, all the present 54 petitions are GRANTED. The 13 petitions, which have been granted Status Quo Ante Orders but without mandatory injunction to include the names of petitioners in the printing of ballots, are remanded to the Commission on Elections only for determination whether petitioners are qualified to register under the party-list system under the parameters prescribed in this Decision but they shall not participate in the 13 May 2013 party-list elections. The

41 petitions, which have been granted mandatory injunctions to include the names of petitioners in the printing of ballots, are remanded to the Commission on Elections for determination whether petitioners are qualified to register under the party-list system and to participate in the 13 May 2013 party-list elections under the parameters prescribed in this Decision. The Commission on Elections may conduct summary evidentiary hearings for this purpose. This Decision is immediately executory. SO ORDERED. ||| (Atong Paglaum, Inc. v. Commission on Elections, G.R. Nos. 203766, 203818-19, 203922, etc., [April 2, 2013], 707 PHIL 454-753) EN BANC [G.R. No. 161434. March 3, 2004.] MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners, vs. The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a. FERNANDO POE, JR.) and VICTORINO X. FORNIER, respondents. [G.R. No. 161634. March 3, 2004.] ZOILO ANTONIO VELEZ, petitioner, vs. RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE, JR., respondent. [G.R. No. 161824. March 3, 2004.] VICTORINO X. FORNIER, petitioner, vs. HON. COMMISSION ON ELECTIONS and RONALD ALLAN KELLEY POE, ALSO KNOWN AS FERNANDO POE JR., respondents.

DECISION

VITUG, J p: Citizenship is a treasured right conferred on those whom the state believes are deserving of the privilege. It is a "precious heritage, as well as an inestimable acquisition," 1 that cannot be taken lightly by anyone — either by those who enjoy it or by those who dispute it. Before the Court are three consolidated cases, all of which raise a single question of profound importance to the nation. The issue of citizenship is brought up to challenge the qualifications of a presidential candidate to hold the highest office of the land. Our people are waiting for the judgment of the Court with bated breath. Is Fernando Poe, Jr., the hero of silver screen, and now one of the main contenders for the presidency, a natural-born Filipino or is he not? The moment of introspection takes us face to face with Spanish and American colonial roots and reminds us of the rich heritage of civil law and common law traditions, the fusion resulting in a hybrid of laws and jurisprudence that could be no less than distinctly Filipino.

Antecedent Case Settings On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr. (hereinafter "FPJ"), filed his certificate of candidacy for the position of President of the Republic of the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the forthcoming national elections. In his certificate of candidacy, FPJ, representing himself to be a natural-born citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his date of birth to be 20 August 1939 and his place of birth to be Manila. Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr., Respondents," initiated, on 09 January 2004, a petition docketed SPA No. 04-003 before the Commission on Elections ("COMELEC") to disqualify FPJ and to deny due course or to cancel his certificate of candidacy upon the thesis that FPJ made a material misrepresentation in his certificate of candidacy by claiming to be a natural- born Filipino citizen when in truth, according to Fornier, his parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his father, Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish subject. Granting, petitioner asseverated, that Allan F. Poe was a Filipino citizen, he could not have transmitted his Filipino citizenship to FPJ, the latter being an illegitimate child of an alien mother. Petitioner based the allegation of the illegitimate birth of respondent on two assertions — first, Allan F. Poe contracted a prior marriage to a certain Paulita Gomez before his marriage to Bessie Kelley and, second, even if no such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the birth of respondent. In the hearing before the Third Division of the COMELEC on 19 January 2004, petitioner, in support of his claim, presented several documentary exhibits — 1) a copy of the certificate of birth of FPJ, 2) a certified photocopy of an affidavit executed in Spanish by Paulita Poe y Gomez attesting to her having filed a case for bigamy and concubinage against the father of respondent, Allan F. Poe, after discovering his bigamous relationship with Bessie Kelley, 3) an English translation of the affidavit aforesaid, 4) a certified photocopy of the certificate of birth of Allan F. Poe, 5) a certification issued by the Director of the Records Management and Archives Office, attesting to the fact that there was no record in the National Archives that a Lorenzo Poe or Lorenzo Pou resided or entered the Philippines before 1907, and 6) a certification from the Officer-In-Charge of the Archives Division of the National Archives to the effect that no available information could be found in the files of the National Archives regarding the birth of Allan F. Poe. On his part, respondent, presented twenty-two documentary pieces of evidence, the more significant ones being — a) a certification issued by Estrella M. Domingo of the Archives Division of the National Archives that there appeared to be no available information regarding the birth of Allan F. Poe in the registry of births for San Carlos, Pangasinan, b) a certification issued by the Officer-In-Charge of the Archives Division of the National Archives that no available information about the marriage of Allan F. Poe and Paulita Gomez could be found, c) a certificate of birth of Ronald Allan Poe, d) Original Certificate of Title No. P-2247 of the Registry of Deeds for the Province of Pangasinan, in the name of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in the name of Lorenzo Pou, f) a copy of the certificate of death of Lorenzo Pou, g) a copy of the purported marriage contract between Fernando Pou and Bessie Kelley, and h) a certification issued by the City Civil Registrar of San Carlos City, Pangasinan, stating that the records of birth in the said office during the period of from 1900 until May 1946 were totally destroyed during World War II. On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit. Three days later, or on 26 January 2004, Fornier filed his motion for reconsideration. The motion was denied on 06 February 2004 by the COMELEC en banc. On 10 February 2004, petitioner assailed the decision of the COMELEC before this Court conformably with Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. The petition, docketed G.R. No. 161824, likewise prayed for a temporary

restraining order, a writ of preliminary injunction or any other resolution that would stay the finality and/or execution of the COMELEC resolutions. The other petitions, later consolidated with G.R. No. 161824, would include G.R. No. 161434, entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The Commission on Elections, Ronald Allan Kelley Poe (a.k.a. 'Fernando Poe, Jr.'), and Victorino X. Fornier," and the other, docketed G.R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.," both challenging the jurisdiction of the COMELEC and asserting that, under Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had original and exclusive jurisdiction to resolve the basic issue on the case. Jurisdiction of the Court In G.R. No. 161824 In seeking the disqualification of the candidacy of FPJ and to have the COMELEC deny due course or to cancel FPJ's certificate of candidacy for alleged misrepresentation of a material fact (i.e., that FPJ was a natural-born citizen) before the COMELEC, petitioner Fornier invoked Section 78 of the Omnibus Election Code — "Section 78.Petition to deny due course or to cancel a certificate of candidacy. — A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false" — in consonance with the general powers of COMELEC expressed in Section 52 of the Omnibus Election Code — "Section 52.Powers and functions of the Commission on Elections. In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections" — and in relation to Article 69 of the Omnibus Election Code which would authorize "any interested party" to file a verified petition to deny or cancel the certificate of candidacy of any nuisance candidate. Decisions of the COMELEC on disqualification cases may be reviewed by the Supreme Court per Rule 64 2 in an action for certiorari under Rule 65 3 of the Revised Rules of Civil Procedure. Section 7, Article IX, of the 1987 Constitution also reads — "Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum, required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof." Additionally, Section 1, Article VIII, of the same Constitution provides that judicial power is vested in one Supreme Court and in such lower courts as may be established by law which power "includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."

It is sufficiently clear that the petition brought up in G.R. No. 161824 was aptly elevated to, and could well be taken cognizance of, by this Court. A contrary view could be a gross denial to our people of their fundamental right to be fully informed, and to make a proper choice, on who could or should be elected to occupy the highest government post in the land.

In G.R. No. 161434 and G.R. No. 161634 Petitioners Tecson, et al., in G.R. No. 161434, and Velez, in G.R. No. 161634, invoke the provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to instead take on the petitions they directly instituted before it. The Constitutional provision cited reads: "The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose." The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973 Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential contests, has constrained this Court to declare, in Lopez vs. Roxas, 4 as "not (being) justiciable" controversies or disputes involving contests on the elections, returns and qualifications of the President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-PresidentElect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793 designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of the tribunal. Although the subsequent adoption of the parliamentary form of government under the 1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up, nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987 Constitution. Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election contests consist of either an election protest or a quo warranto which, although two distinct remedies, would have one objective in view, i.e., to dislodge the winning candidate from office. A perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992, would support this premise — "Rule 12.Jurisdiction. — The Tribunal shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President of the Philippines. "Rule 13.How Initiated. — An election contest is initiated by the filing of an election protest or a petition for quo warranto against the President or Vice-President. An election protest shall not include a petition for quo warranto. A petition for quo warranto shall not include an election protest. "Rule 14.Election Protest. — Only the registered candidate for President or for VicePresident of the Philippines who received the second or third highest number of votes may contest the election of the President or the Vice-President, as the case may be, by filing a verified petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the proclamation of the winner." The rules categorically speak of the jurisdiction of the tribunal over contests relating to the election, returns and qualifications of the "President" or "Vice-President", of the Philippines, and not of "candidates" for President or Vice-President. A quo warranto proceeding is generally defined as being

an action against a person who usurps, intrudes into, or unlawfully holds or exercises a public office. 5 In such context, the election contest can only contemplate a post-election scenario. In Rule 14, only a registered candidate who would have received either the second or third highest number of votes could file an election protest. This rule again presupposes a post-election scenario. It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, of the 1987 Constitution, would not include cases directly brought before it, questioning the qualifications of a candidate for the presidency or vice-presidency before the elections are held. Accordingly, G.R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs. Commission on Elections, et al.," and G.R. No. 161634, entitled "Zoilo Antonio Velez vs. Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." would have to be dismissed for want of jurisdiction. The Citizenship Issue Now, to the basic issue; it should be helpful to first give a brief historical background on the concept of citizenship. Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime in 384 to 322 B.C., described the "citizen" to refer to a man who shared in the administration of justice and in the holding of an office. 6 Aristotle saw its significance if only to determine the constituency of the "State," which he described as being composed of such persons who would be adequate in number to achieve a self-sufficient existence. 7 The concept grew to include one who would both govern and be governed, for which qualifications like autonomy, judgment and loyalty could be expected. Citizenship was seen to deal with rights and entitlements, on the one hand, and with concomitant obligations, on the other. 8 In its ideal setting, a citizen was active in public life and fundamentally willing to submit his private interests to the general interest of society. The concept of citizenship had undergone changes over the centuries. In the 18th century, the concept was limited, by and large, to civil citizenship, which established the rights necessary for individual freedom, such as rights to property, personal liberty and justice. 9 Its meaning expanded during the 19th century to include political citizenship, which encompassed the right to participate in the exercise of political power. 10 The 20th century saw the next stage of the development of social citizenship, which laid emphasis on the right of the citizen to economic well-being and social security. 11 The idea of citizenship has gained expression in the modern welfare state as it so developed in Western Europe. An ongoing and final stage of development, in keeping with the rapidly shrinking global village, might well be the internationalization of citizenship. 12 The Local Setting — from Spanish Time to the Present There was no such term as "Philippine citizens" during the Spanish regime but "subjects of Spain" or "Spanish subjects." 13 In church records, the natives were called 'indios', denoting a low regard for the inhabitants of the archipelago. Spanish laws on citizenship became highly codified during the 19th century but their sheer number made it difficult to point to one comprehensive law. Not all of these citizenship laws of Spain however, were made to apply to the Philippine Islands except for those explicitly extended by Royal Decrees. 14 Spanish laws on citizenship were traced back to the Novisima Recopilacion, promulgated in Spain on 16 July 1805 but as to whether the law was extended to the Philippines remained to be the subject of differing views among experts; 15 however, three royal decrees were undisputably made applicable to Spaniards in the Philippines — the Order de la Regencia of 14 August 1841, 16 the Royal Decree of 23 August 1868 specifically defining the political status of children born in the Philippine Islands, 17 and finally, the Ley Extranjera de Ultramar of 04 July 1870, which was expressly made applicable to the Philippines by the Royal Decree of 13 July 1870. 18

The Spanish Constitution of 1876 was never extended to the Philippine Islands because of the express mandate of its Article 89, according to which the provisions of the Ultramar among which this country was included, would be governed by special laws. 19 It was only the Civil Code of Spain, made effective in this jurisdiction on 18 December 1889, which came out with the first categorical enumeration of who were Spanish citizens. — "(a)Persons born in Spanish territory, "(b)Children of a Spanish father or mother, even if they were born outside of Spain, "(c)Foreigners who have obtained naturalization papers, "(d)Those who, without such papers, may have become domiciled inhabitants of any town of the Monarchy." 20 The year 1898 was another turning point in Philippine history. Already in the state of decline as a superpower, Spain was forced to so cede her sole colony in the East to an upcoming world power, the United States. An accepted principle of international law dictated that a change in sovereignty, while resulting in an abrogation of all political laws then in force, would have no effect on civil laws, which would remain virtually intact. The Treaty of Paris was entered into on 10 December 1898 between Spain and the United States. 21 Under Article IX of the treaty, the civil rights and political status of the native inhabitants of the territories ceded to the United States would be determined by its Congress — "Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce, and professions, being subject in respect thereof to such laws as are applicable to foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they reside. Thus — "The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress." 22 Upon the ratification of the treaty, and pending legislation by the United States Congress on the subject, the native inhabitants of the Philippines ceased to be Spanish subjects. Although they did not become American citizens, they, however, also ceased to be "aliens" under American laws and were thus issued passports describing them to be citizens of the Philippines entitled to the protection of the United States. LibLex The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of 1902, also commonly referred to as the Philippine Organic Act of 1902, the first comprehensive legislation of the Congress of the United States on the Philippines — ". . . that all inhabitants of the Philippine Islands continuing to reside therein, who were Spanish subjects on the 11th day of April, 1891, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the

Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris, December tenth eighteen hundred and ninety eight." 23 Under the organic act, a "citizen of the Philippines" was one who was an inhabitant of the Philippines, and a Spanish subject on the 11th day of April 1899. The term "inhabitant" was taken to include 1) a native-born inhabitant, 2) an inhabitant who was a native of Peninsular Spain, and 3) an inhabitant who obtained Spanish papers on or before 11 April 1899. 24 Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01 July 1902, during which period no citizenship law was extant in the Philippines. Weight was given to the view, articulated in jurisprudential writing at the time, that the common law principle of jus soli, otherwise also known as the principle of territoriality, operative in the United States and England, governed those born in the Philippine Archipelago within that period. 25More about this later. In 23 March 1912, the Congress of the United States made the following amendment to the Philippine Bill of 1902 — "Provided, That the Philippine Legislature is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of other insular possession of the United States, and such other persons residing in the Philippine Islands who would become citizens of the United States, under the laws of the United States, if residing therein." 26 With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the first time crystallized. The word "Filipino" was used by William H. Taft, the first Civil Governor General in the Philippines when he initially made mention of it in his slogan, "The Philippines for the Filipinos." In 1916, the Philippine Autonomy Act, also known as the Jones Law restated virtually the provisions of the Philippine Bill of 1902, as so amended by the Act of Congress in 1912 — "That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequently thereto, shall be deemed and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris December tenth, eighteen hundred and ninety-eight and except such others as have since become citizens of some other country; Provided, That the Philippine Legislature, herein provided for, is hereby authorized to provide for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the United States, if residing therein." Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of the Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11 April 1899, 2) residing in the Philippines on said date, and, 3) since that date, not a citizen of some other country. While there was, at one brief time, divergent views on whether or not jus soli was a mode of acquiring citizenship, the 1935 Constitution brought to an end to any such link with common law, by adopting, once and for all, jus sanguinis or blood relationship as being the basis of Filipino citizenship —

"Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines — "(1)Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution "(2)Those born in the Philippines Islands of foreign parents who, before the adoption of this Constitution,had been elected to public office in the Philippine Islands. "(3)Those whose fathers or mothers are citizens of the Philippines. "(4)Those whose mothers are citizens of the Philippines and upon reaching the age of majority, elect Philippine citizenship. "(5)Those who are naturalized in accordance with law." Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil law provisions at the time, which provided that women would automatically lose their Filipino citizenship and acquire that of their foreign husbands, resulted in discriminatory situations that effectively incapacitated the women from transmitting their Filipino citizenship to their legitimate children and required illegitimate children of Filipino mothers to still elect Filipino citizenship upon reaching the age of majority. Seeking to correct this anomaly, as well as fully cognizant of the newly found status of Filipino women as equals to men, the framers of the 1973 Constitution crafted the provisions of the new Constitution on citizenship to reflect such concerns — "Section 1, Article III, 1973 Constitution — The following are citizens of the Philippines: "(1)Those who are citizens of the Philippines at the time of the adoption of this Constitution. "(2)Those whose fathers or mothers are citizens of the Philippines. "(3)Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-five. "(4)Those who are naturalized in accordance with law." For good measure, Section 2 of the same article also further provided that — "A female citizen of the Philippines who marries an alien retains her Philippine citizenship, unless by her act or omission she is deemed, under the law to have renounced her citizenship." The 1987 Constitution generally adopted the provisions of the 1973 Constitution, except for subsection (3) thereof that aimed to correct the irregular situation generated by the questionable proviso in the 1935 Constitution. Section 1, Article IV, 1987 Constitution now provides: "The following are citizens of the Philippines: "(1)Those who are citizens of the Philippines at the time of the adoption of this Constitution. "(2)Those whose fathers or mothers are citizens of the Philippines. "(3)Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and "(4)Those who are naturalized in accordance with law."

The Case Of FPJ Section 2, Article VII, of the 1987 Constitution expresses: "No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election." The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship." 27 The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the 1935 Constitution. Through its history, four modes of acquiring citizenship — naturalization, jus soli, res judicata and jus sanguinis 28 — had been in vogue. Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a "natural-born" citizen of the Philippines. Jus soli, per Roa vs. Collector of Customs 29 (1912), did not last long. With the adoption of the1935 Constitution and the reversal of Roa in Tan Chong vs. Secretary of Labor 30 (1947), jus sanguinis or blood relationship would now become the primary basis of citizenship by birth. Documentary evidence adduced by petitioner would tend to indicate that the earliest established direct ascendant of FPJ was his paternal grandfather Lorenzo Pou, married to Marta Reyes, the father of Allan F. Poe. While the record of birth of Lorenzo Pou had not been presented in evidence, his death certificate, however, identified him to be a Filipino, a resident of San Carlos, Pangasinan, and 84 years old at the time of his death on 11 September 1954. The certificate of birth of the father of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Español father, Lorenzo Pou, and a mestiza Español mother, Marta Reyes. Introduced by petitioner was an "uncertified" copy of a supposed certificate of the alleged marriage of Allan F. Poe and Paulita Gomez on 05 July 1936. The marriage certificate of Allan F. Poe and Bessie Kelley reflected the date of their marriage to be on 16 September 1940. In the same certificate, Allan F. Poe was stated to be twenty-five years old, unmarried, and a Filipino citizen, and Bessie Kelley to be twenty-two years old, unmarried, and an American citizen. The birth certificate of FPJ, would disclose that he was born on 20 August 1939 to Allan F. Poe, a Filipino, twenty-four years old, married to Bessie Kelly, an American citizen, twentyone years old and married.

Considering the reservations made by the parties on the veracity of some of the entries on the birth certificate of respondent and the marriage certificate of his parents, the only conclusions that could be drawn with some degree of certainty from the documents would be that — 1.The parents of FPJ were Allan F. Poe and Bessie Kelley; 2.FPJ was born to them on 20 August 1939; 3.Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940; 4.The father of Allan F. Poe was Lorenzo Poe; and 5.At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old. Would the above facts be sufficient or insufficient to establish the fact that FPJ is a natural-born Filipino citizen? The marriage certificate of Allan F. Poe and Bessie Kelley, the birth certificate of FPJ, and the death certificate of Lorenzo Pou are documents of public record in the custody of a public officer. The documents have been submitted in evidence by both contending parties during the proceedings before the COMELEC.

The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for respondent. The marriage certificate of Allan F. Poe to Bessie Kelley was submitted as Exhibit "21" for respondent. The death certificate of Lorenzo Pou was submitted by respondent as his Exhibit "5." While the last two documents were submitted in evidence for respondent, the admissibility thereof, particularly in reference to the facts which they purported to show, i.e., the marriage certificate in relation to the date of marriage of Allan F. Poe to Bessie Kelley and the death certificate relative to the death of Lorenzo Pou on 11 September 1954 in San Carlos, Pangasinan, were all admitted by petitioner, who had utilized those material statements in his argument. All three documents were certified true copies of the originals. Section 3, Rule 130, Rules of Court states that — "Original document must be produced; exceptions. — When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: xxx xxx xxx "(d)When the original is a public record in the custody of a public office or is recorded in a public office." Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F. Poe and Bessie Kelly, and the birth certificate of FPJ, constitute prima facie proof of their contents. Section 44, Rule 130, of the Rules of Court provides: "Entries in official records. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated." The trustworthiness of public documents and the value given to the entries made therein could be grounded on 1) the sense of official duty in the preparation of the statement made, 2) the penalty which is usually affixed to a breach of that duty, 3) the routine and disinterested origin of most such statements, and 4) the publicity of record which makes more likely the prior exposure of such errors as might have occurred. 31 The death certificate of Lorenzo Pou would indicate that he died on 11 September 1954, at the age of 84 years, in San Carlos, Pangasinan. It could thus be assumed that Lorenzo Pou was born sometime in the year 1870 when the Philippines was still a colony of Spain. Petitioner would argue that Lorenzo Pou was not in the Philippines during the crucial period of from 1898 to 1902 considering that there was no existing record about such fact in the Records Management and Archives Office. Petitioner, however, likewise failed to show that Lorenzo Pou was at any other place during the same period. In his death certificate, the residence of Lorenzo Pou was stated to be San Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be sound to conclude, or at least to presume, that the place of residence of a person at the time of his death was also his residence before death. It would be extremely doubtful if the Records Management and Archives Office would have had complete records of all residents of the Philippines from 1898 to 1902. Proof of Paternity and Filiation Under Civil Law. Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the child to the father [or mother]) or paternity (relationship or civil status of the father to the child) of an illegitimate child, FPJ evidently being an illegitimate son according to petitioner, the mandatory rules under civil law must be used. Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up until the day prior to 30 August 1950 when the Civil Code of the Philippines took effect, acknowledgment was required to establish filiation or paternity. Acknowledgment was either judicial (compulsory) or

voluntary. Judicial or compulsory acknowledgment was possible only if done during the lifetime of the putative parent; voluntary acknowledgment could only be had in a record of birth, a will, or a public document. 32 Complementary to the new code was Act No. 3753 or the Civil Registry Law expressing in Section 5 thereof, that — "In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or only by the mother if the father refuses. In the latter case, it shall not be permissible to state or reveal in the document the name of the father who refuses to acknowledge the child, or to give therein any information by which such father could be identified." In order that the birth certificate could then be utilized to prove voluntary acknowledgment of filiation or paternity, the certificate was required to be signed or sworn to by the father. The failure of such requirement rendered the same useless as being an authoritative document of recognition. 33 InMendoza vs. Mella, 34 the Court ruled — "Since Rodolfo was born in 1935, after the registry law was enacted, the question here really is whether or not his birth certificate (Exhibit 1), which is merely a certified copy of the registry record, may be relied upon as sufficient proof of his having been voluntarily recognized. No such reliance, in our judgment, may be placed upon it. While it contains the names of both parents, there is no showing that they signed the original, let alone swore to its contents as required in Section 5 of Act No. 3753. For all that might have happened, it was not even they or either of them who furnished the data to be entered in the civil register. Petitioners say that in any event the birth certificate is in the nature of a public document wherein voluntary recognition of a natural child may also be made, according to the same Article 131. True enough, but in such a case, there must be a clear statement in the document that the parent recognizes the child as his or her own." In the birth certificate of respondent FPJ, presented by both parties, nowhere in the document was the signature of Allan F. Poe found. There being no will apparently executed, or at least shown to have been executed, by decedent Allan F. Poe, the only other proof of voluntary recognition remained to be "some other public document." In Pareja vs. Pareja, 35 this Court defined what could constitute such a document as proof of voluntary acknowledgment: "Under the Spanish Civil Code there are two classes of public documents, those executed by private individuals which must be authenticated by notaries, and those issued by competent public officials by reason of their office. The public document pointed out in Article 131 as one of the means by which recognition may be made belongs to the first class." Let us leave it at that for the moment. The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate children into voluntary, legal or compulsory. Voluntary recognition was required to be expressedly made in a record of birth, a will, a statement before a court of record or in any authentic writing. Legal acknowledgment took place in favor of full blood brothers and sisters of an illegitimate child who was recognized or judicially declared as natural. Compulsory acknowledgment could be demanded generally in cases when the child had in his favor any evidence to prove filiation. Unlike an action to claim legitimacy which would last during the lifetime of the child, and might pass exceptionally to the heirs of the child, an action to claim acknowledgment, however, could only be brought during the lifetime of the presumed parent. Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic writing," so as to be an authentic writing for purposes of voluntary recognition, simply as being a genuine or indubitable

writing of the father. The term would include a public instrument (one duly acknowledged before a notary public or other competent official) or a private writing admitted by the father to be his. The Family Code has further liberalized the rules; Article 172, Article 173, and Article 175 provide: "Art. 172.The filiation of legitimate children is established by any of the following: "(1)The record of birth appearing in the civil register or a final judgment; or "(2)An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. "In the absence of the foregoing evidence, the legitimate filiation shall be proved by: "(1)The open and continuous possession of the status of a legitimate child; or "(2)Any other means allowed by the Rules of Court and special laws. "Art. 173.The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action.

"The action already commenced by the child shall survive notwithstanding the death of either or both the parties. "xxx xxx xxx "Art. 175.Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. "The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent." The provisions of the Family Code are retroactively applied; Article 256 of the code reads: "Art. 256.This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws." Thus, in Vda. De SyQuia vs. Court of Appeals, 36 the Court has ruled: "We hold that whether Jose was a voluntarily recognized natural child should be decided under Article 278 of the Civil Code of the Philippines. Article 2260 of that Code provides that 'the voluntary recognition of a natural child shall take place according to this Code, even if the child was born before the effectivity of this body of laws' or before August 30, 1950. Hence, Article 278 may be given retroactive effect." It should be apparent that the growing trend to liberalize the acknowledgment of recognition of illegitimate children is an attempt to break away from the traditional idea of keeping well apart legitimate and non-legitimate relationships within the family in favor of the greater interest and welfare of the child. The provisions are intended to merely govern the private and personal affairs of the family. There is little, if any, to indicate that the legitimate or illegitimate civil status of the individual would also affect his political rights or, in general, his relationship to the State. While, indeed, provisions on "citizenship" could be found in the Civil Code,such provisions must be taken in the context or private relations, the domain of civil law; particularly — "Civil Law is that branch of law which has for its double purpose the organization of the family and the regulation of property. It has thus [been] defined as the mass of

precepts which determine and regulate the relations of assistance, authority and obedience among member of a family, and those which exist among members of a society for the protection of private interests." 37 In Yañez de Barnuevo vs. Fuster, 38 the Court has held: "In accordance with Article 9 of the Civil Code of Spain, . . . the laws relating to family rights and duties, or to the status, condition and legal capacity of persons, govern Spaniards although they reside in a foreign country; that, in consequence, 'all questions of a civil nature, such as those dealing with the validity or nullity of the matrimonial bond, the domicile of the husband and wife, their support, as between them, the separation of their properties, the rules governing property, marital authority, division of conjugal property, the classification of their property, legal causes for divorce, the extent of the latter, the authority to decree it, and, in general, the civil effects of marriage and divorce upon the persons and properties of the spouses, are questions that are governed exclusively by the national law of the husband and wife." The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of the Civil Code,stating that — "Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad" — that explains the need to incorporate in the code a reiteration of the Constitutional provisions on citizenship. Similarly, citizenship is significant in civil relationships found in different parts of the Civil Code,39 such as on successional rights and family relations. 40 In adoption, for instance, an adopted child would be considered the child of his adoptive parents and accorded the same rights as their legitimate child but such legal fiction extended only to define his rights under civil law 41 and not his political status. Civil law provisions point to an obvious bias against illegitimacy. This discriminatory attitude may be traced to the Spanish family and property laws, which, while defining proprietary and successional rights of members of the family, provided distinctions in the rights of legitimate and illegitimate children. In the monarchial set-up of old Spain, the distribution and inheritance of titles and wealth were strictly according to bloodlines and the concern to keep these bloodlines uncontaminated by foreign blood was paramount. These distinctions between legitimacy and illegitimacy were codified in the Spanish Civil Code, and the invidious discrimination survived when the Spanish Civil Code became the primary source of our own Civil Code. Such distinction, however, remains and should remain only in the sphere of civil law and not unduly impede or impinge on the domain of political law. The proof of filiation or paternity for purposes of determining his citizenship status should thus be deemed independent from and not inextricably tied up with that prescribed for civil law purposes. The Civil Code or Family Code provisions on proof of filiation or paternity, although good law, do not have preclusive effects on matters alien to personal and family relations. The ordinary rules on evidence could well and should govern. For instance, the matter about pedigree is not necessarily precluded from being applicable by the Civil Code or Family Code provisions. Section 39, Rule 130, of the Rules of Court provides — "Act or Declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word 'pedigree' includes relationship, family genealogy, birth,

marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree." For the above rule to apply, it would be necessary that (a) the declarant is already dead or unable to testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a relative of the person whose pedigree is in question, (d) declaration must be made before the controversy has occurred, and (e) the relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such act or declaration. Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe submitted as Exhibit 20 before the COMELEC, might be accepted to prove the facts of Allan F. Poe, recognizing his own paternal relationship with FPJ, i.e., living together with Bessie Kelly and his children (including respondent FPJ) in one house, and as one family — "I, Ruby Kelly Mangahas, of legal age and sound mind, presently residing in Stockton, California, U.S.A., after being sworn in accordance with law do hereby declare that: "1.I am the sister of the late Bessie Kelly Poe. "2.Bessie Kelley Poe was the wife of Fernando Poe, Sr. "3.Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more popularly known in the Philippines as 'Fernando Poe, Jr., or FPJ'. "4.Ronald Allan Poe 'FPJ' was born on August 20, 1939 at St. Luke's Hospital, Magdalena Street, Manila. "xxx xxx xxx "7.Fernando Poe Sr., and my sister Bessie, met and became engaged while they were students at the University of the Philippines in 1936. I was also introduced to Fernando Poe Sr., by my sister that same year. "8.Fernando Poe, Sr., and my sister Bessie had their first child in 1938. "9.Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth, Ronald, Allan and Fernando II, and myself lived together with our mother at our family's house on Dakota St. (now Jorge Bocobo St.), Malate until the liberation of Manila in 1945, except for some months between 1943-1944. "10.Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more children after Ronald Allan Poe. "xxx xxx xxx "18.I am executing this Declaration to attest to the fact that my nephew, Ronald Allan Poe is a natural born Filipino, and that he is the legitimate child of Fernando Poe, Sr. "Done in City of Stockton, California, U.S.A., this 12th day of January 2004. Ruby Kelly Mangahas Declarant DNA Testing In case proof of filiation or paternity would be unlikely to satisfactory establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to. A positive match would clear

up filiation or paternity. In Tijing vs. Court of Appeals, 42 this Court has acknowledged the strong weight of DNA testing — "Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and the child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when completely obtained in aid of situations presented, since to reject said result is to deny progress."

Petitioner's Argument For Jurisprudential Conclusiveness Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have transmitted his citizenship to respondent FPJ, the latter being an illegitimate child. According to petitioner, prior to his marriage to Bessie Kelly, Allan F. Poe, on July 5, 1936, contracted marriage with a certain Paulita Gomez, making his subsequent marriage to Bessie Kelly bigamous and respondent FPJ an illegitimate child. The veracity of the supposed certificate of marriage between Allan F. Poe and Paulita Gomez could be most doubtful at best. But the documentary evidence introduced by no less than respondent himself, consisting of a birth certificate of respondent and a marriage certificate of his parents showed that FPJ was born on 20 August 1939 to Filipino father and an American mother who were married to each other a year later, or on 16 September 1940. Birth to unmarried parents would make FPJ an illegitimate child. Petitioner contended that as an illegitimate child, FPJ so followed the citizenship of his mother, Bessie Kelly, an American citizen, basing his stand on the ruling of this Court in Morano vs. Vivo, 43 citing Chiongbian vs. de Leon 44 and Serra vs. Republic. 45 On the above score, the disqualification made by amicus curiae Joaquin G. Bernas, SJ, is most convincing; he states — "We must analyze these cases and ask what the lis mota was in each of them. If the procurement of the Court on jus sanguinis was on the lis mota, the pronouncement would be a decision constituting doctrine under the rule of stare decisis. But if the pronouncement was irrelevant to the lis mota, the pronouncement would not be a decision but a mere obiter dictum which did not establish doctrine. I therefore invite the Court to look closely into these cases. "First, Morano vs. Vivio. The case was not about an illegitimate child of a Filipino father. It was about a stepson of a Filipino, a stepson who was the child of a Chinese mother and a Chinese father. The issue was whether the stepson followed the naturalization of the stepfather. Nothing about jus sanguinisthere. The stepson did not have blood of the naturalized stepfather. "Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a Filipino father. It was about a legitimate son of a father who had become Filipino by election to public office before the 1935 Constitution pursuant to Article IV, Section 1(2) of the 1935 Constitution. No one was illegitimate here.

"Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino father. Serra was an illegitimate child of a Chinese father and a Filipino mother. The issue was whether one who was already a Filipino because of his mother who still needed to be naturalized. There is nothing there about invidious jus sanguinis. "Finally, Paa vs. Chan. 46 This is more complicated case. The case was about the citizenship of Quintin Chan who was the son of Leoncio Chan. Quintin Chan claimed that his father, Leoncio, was the illegitimate son of a Chinese father and a Filipino mother. Quintin therefore argued that he got his citizenship from Leoncio, his father. But the Supreme Court said that there was no valid proof that Leoncio was in fact the son of a Filipina mother. The Court therefore concluded that Leoncio was not Filipino. If Leoncio was not Filipino, neither was his son Quintin. Quintin therefore was not only not a natural-born Filipino but was not even a Filipino. "The Court should have stopped there. But instead it followed with an obiter dictum. The Court said obiterthat even if Leoncio, Quintin's father, were Filipino, Quintin would not be Filipino because Quintin was illegitimate. This statement about Quintin, based on a contrary to fact assumption, was absolutely necessary for the case. . . . It was obiter dictum, pure and simple, simply repeating the obiter dictum in Morano vs. Vivo. "xxx xxx xxx "Aside from the fact that such a pronouncement would have no textual foundation in the Constitution, it would also violate the equal protection clause ofthe Constitution not once but twice. First, it would make an illegitimate distinction between a legitimate child and an illegitimate child, and second, it would make an illegitimate distinction between the illegitimate child of a Filipino father and the illegitimate child of a Filipino mother. "The doctrine on constitutionality allowable distinctions was established long ago by People vs. Cayat. 47 I would grant that the distinction between legitimate children and illegitimate children rests on real differences. . . . But real differences alone do not justify invidious distinction. Real differences may justify distinction for one purpose but not for another purpose. ". . . What is the relevance of legitimacy to elective public service? What possible state interest can there be for disqualifying an illegitimate child from becoming a public officer. It was not the fault of the child that his parents had illicit liaison. Why deprive the child of the fullness of political rights for no fault of his own? To disqualify an illegitimate child from holding an important public office is to punish him for the indiscretion of his parents. There is neither justice nor rationality in that. And if there is neither justice nor rationality in the distinction, then the distinction transgresses the equal protection clause and must be reprobated." The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this Court), Professor Ruben Balane and Dean Martin Magallona, at bottom, have expressed similar views. The thesis of petitioner, unfortunately hinging solely on pure obiter dicta, should indeed fail. Where jurisprudence regarded an illegitimate child as taking after the citizenship of its mother, it did so for the benefit of the child. It was to ensure a Filipino nationality for the illegitimate child of an alien father in line with the assumption that the mother had custody, would exercise parental authority and had the duty to support her illegitimate child. It was to help the child, not to prejudice or discriminate against him.

The fact of the matter — perhaps the most significant consideration — is that the 1935 Constitution, the fundamental law prevailing on the day, month and year of birth of respondent FPJ, can never be more explicit than it is. Providing neither conditions nor distinctions, the Constitution states that among the citizens of the Philippines are "those whose fathers are citizens of the Philippines." There utterly is no cogent justification to prescribe conditions or distinctions where there are clearly none provided. In Sum — (1)The Court, in the exercise of its power of judicial review, possesses jurisdiction over the petition in G.R. No. 161824, filed under Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. G.R. No. 161824 assails the resolution of the COMELEC for alleged grave abuse of discretion in dismissing, for lack of merit, the petition in SPA No. 04-003 which has prayed for the disqualification of respondent FPJ from running for the position of President in the 10th May 2004 national elections on the contention that FPJ has committed material representation in his certificate of candidacy by representing himself to be a natural-born citizen of the Philippines. (2)The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in G.R. No. 161434 and No. 161634 both having been directly elevated to this Court in the latter's capacity as the only tribunal to resolve a presidential and vice-presidential election contest under the Constitution. Evidently, the primary jurisdiction of the Court can directly be invoked only after, not before, the elections are held. (3)In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been committed by the COMELEC, it is necessary to take on the matter of whether or not respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the affirmative, whether or not the alleged illegitimacy of respondent prevents him from taking after the Filipino citizenship of his putative father. Any conclusion on the Filipino citizenship of Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84 years old, Lorenzo would have been born sometime in the year 1870, when the Philippines was under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his death in 1954, in the absence of any other evidence, could have well been his place of residence before death, such that Lorenzo Pou would have benefited from the "en masse Filipinization" that the Philippine bill had effected in 1902. That citizenship (of Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The 1935 Constitution, during which regime respondent FPJ has seen first light, confers citizenship to all persons whose fathers are Filipino citizens regardless of whether such children are legitimate or illegitimate. (4)But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in his favor enough to hold that he cannot be held guilty of having made a material misrepresentation in his certificate of candidacy in violation of Section 78, in relation to Section 74, of the Omnibus Election Code. Petitioner has utterly failed to substantiate his case before the Court, notwithstanding the ample opportunity given to the parties to present their position and evidence, and to prove whether or not there has been material misrepresentation, which, as so ruled in Romualdez-Marcos vs. COMELEC, 48 must not only be material, but also deliberate and willful. WHEREFORE, the Court RESOLVES to DISMISS — 1.G.R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr., Petitioners, versus Commission on Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando Poe, Jr.,) and Victorino X. Fornier, Respondents," and G.R. No. 161634, entitled "Zoilo Antonio Velez,

Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr., Respondent," for want of jurisdiction. 2.G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.," for failure to show grave abuse of discretion on the part of respondent Commission on Elections in dismissing the petition in SPA No. 04-003. No Costs. SO ORDERED. ||| (Tecson v. Commission on Elections, G.R. No. 161434, 161634, 161824, [March 3, 2004], 468 PHIL 421-755) [G.R. No. 83820. May 25, 1990.] JOSE B. AZNAR (as Provincial Chairman of PDP Laban in Cebu), petitioner, vs. COMMISSION ON ELECTIONS and EMILIO MARIO RENNER OSMEÑA, respondents. Rufino B. Requina for petitioner. Angara, Abello, Concepcion, Regala & Cruz for private respondent.

DECISION

PARAS, J p: Before Us is a petition for certiorari assailing the Resolution of the Commission on Elections (COMELEC) dated June 11, 1988, which dismissed the petition for the disqualification of private respondent Emilio "Lito" Osmeña as candidate for Provincial Governor of Cebu Province. cdll The facts of the case are briefly as follows: On November 19, 1987, private respondent Emilio "Lito" Osmeña filed his certificate of candidacy with the COMELEC for the position of Provincial Governor of Cebu Province in the January 18, 1988 local elections. On January 22, 1988, the Cebu PDP-Laban Provincial Council (Cebu-PDP Laban, for short), as represented by petitioner Jose B. Aznar in his capacity as its incumbent Provincial Chairman, filed with the COMELEC a petition for the disqualification of private respondent on the ground that he is allegedly not a Filipino citizen, being a citizen of the United States of America. On January 27, 1988, petitioner filed a Formal Manifestation submitting a Certificate issued by the then Immigration and Deportation Commissioner Miriam Defensor Santiago certifying that private respondent is an American and is a holder of Alien Certificate of Registration (ACR) No. B-21448 and Immigrant Certificate of Residence (ICR) No. 133911, issued at Manila on March 27 and 28, 1958, respectively. (Annex "B-1"). The petitioner also filed a Supplemental Urgent Ex-Parte Motion for the Issuance of a Temporary Restraining Order to temporarily enjoin the Cebu Provincial Board of Canvassers from

tabulating/canvassing the votes cast in favor of private respondent and proclaiming him until the final resolution of the main petition. Thus, on January 28, 1988, the COMELEC en banc resolved to order the Board to continue canvassing but to suspend the proclamation. At the hearing before the COMELEC (First Division), the petitioner presented the following exhibits tending to show that private respondent is an American citizen: Application for Alien Registration Form No. 1 of the Bureau of Immigration signed by private respondent dated November 21, 1979 (Exh. "B"); Alien Certificate of Registration No. 015356 in the name of private respondent dated November 21, 1979 (Exh. "C"); Permit to Re-enter the Philippines dated November 21, 1979 (Exh. "D"); Immigration Certificate of Clearance dated January 3, 1980 (Exh. "E"). (pp. 117-118, Rollo). Private respondent, on the other hand, maintained that he is a Filipino citizen, alleging: that he is the legitimate child of Dr. Emilio D. Osmeña, a Filipino and son of the late President Sergio Osmeña, Sr.; that he is a holder of a valid and subsisting Philippine Passport No. 0855103 issued on March 25, 1987; that he has been continuously residing in the Philippines since birth and has not gone out of the country for more than six months; and that he has been a registered voter in the Philippines since 1965. (pp. 107-108, Rollo) On March 3, 1988, COMELEC (First Division) directed the Board of Canvassers to proclaim the winning candidates. Having obtained the highest number of votes, private respondent was proclaimed the Provincial Governor of Cebu. Thereafter, on June 11, 1988, COMELEC (First Division) dismissed the petition for disqualification for not having been timely filed and for lack of sufficient proof that private respondent is not a Filipino citizen. cdrep Hence, the present petition. The petition is not meritorious. There are two instances where a petition questioning the qualifications of a registered candidate to run for the office for which his certificate of candidacy was filed can be raised under the Omnibus Election Code (B.P. Blg. 881), to wit: "(1) Before election, pursuant to Section 78 thereof which provides that: 'Section 78. Petition to deny due course or to cancel a certificate of candidacy. — A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty five days from the time of the filing of the certificate of candidacy and shall be decided, after the notice and hearing, not later than fifteen days before the election. and "(2) After election, pursuant to Section 253 thereof, viz: 'Sec. 253. Petition for quo warranto. — Any voter contesting the election of any Member of the Batasang Pambansa, regional, provincial, or city officeron the ground of inelligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election." The records show that private respondent filed his certificate of candidacy on November 19, 1987 and that the petitioner filed its petition for disqualification of said private respondent on January 22, 1988.

Since the petition for disqualification was filed beyond the twenty five-day period required in Section 78 of the Omnibus Election Code, it is clear that said petition was filed out of time. The petition for the disqualification of private respondent cannot also be treated as a petition for quo warranto under Section 253 of the same Code as it is unquestionably premature, considering that private respondent was proclaimed Provincial Governor of Cebu only on March 3, 1988. However, We deem it is a matter of public interest to ascertain the respondent's citizenship and qualification to hold the public office to which he has been proclaimed elected. There is enough basis for us to rule directly on the merits of the case, as the COMELEC did below. Petitioner's contention that private respondent is not a Filipino citizen and, therefore, disqualified from running for and being elected to the office of Provincial Governor of Cebu, is not supported by substantial and convincing evidence. In the proceedings before the COMELEC, the petitioner failed to present direct proof that private respondent had lost his Filipino citizenship by any of the modes provided for under C.A. No. 63. Among others, these are: (1) by naturalization in a foreign country; (2) by express renunciation of citizenship; and (3) by subscribing to an oath of allegiance to support the Constitution or laws of a foreign country. From the evidence, it is clear that private respondent Osmeña did not lose his Philippine citizenship by any of the three mentioned hereinabove or by any other mode of losing Philippine citizenship. In concluding that private respondent had been naturalized as a citizen of the United States of America, the petitioner merely relied on the fact that private respondent was issued alien certificate of registration and was given clearance and permit to re-enter the Philippines by the Commission on Immigration and Deportation. Petitioner assumed that because of the foregoing, the respondent is an American and "being an American", private respondent "must have taken and sworn to the Oath of Allegiance required by the U.S. Naturalization Laws." (p. 81, Rollo) Philippine courts are only allowed to determine who are Filipino citizens and who are not. Whether or not a person is considered an American under the laws of the United States does not concern Us here. By virtue of his being the son of a Filipino father, the presumption that private respondent is a Filipino remains. It was incumbent upon the petitioner to prove that private respondent had lost his Philippine citizenship. As earlier stated, however, the petitioner failed to positively establish this fact. The cases of Juan Gallanosa Frivaldo v. COMELEC et al., (G.R. No. 87193, June 21, 1989) and Ramon L. Labo v. COMELEC et al. (G.R. No. 86564, August 1, 1989) are not applicable to the case at bar. In the Frivaldo case, evidence shows that he was naturalized as a citizen of the United States in 1983 per certification from the United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A. Frivaldo expressly admitted in his answer that he was naturalized in the United States but claimed that he was forced to embrace American citizenship to protect himself from the persecution of the Marcos government. The Court, however, found this suggestion of involuntariness unacceptable, pointing out that there were many other Filipinos in the United States similarly situated as Frivaldo who did not find it necessary to abandon their status as Filipinos. Likewise, in the case of Labo, records show that Labo was married to an Australian citizen and that he was naturalized as an Australian citizen in 1976, per certification from the Australian Government through its Consul in the Philippines. This was later affirmed by the Department of Foreign Affairs.

The authenticity of the above evidence was not disputed by Labo. In fact, in a number of sworn statements, Labo categorically declared that he was a citizen of Australia. LexLib In declaring both Frivaldo and Labo not citizens of the Philippines, therefore, disqualified from serving as Governor of the Province of Sorsogon and Mayor of Baguio City, respectively, the Court considered the fact that by their own admissions, they are indubitably aliens, no longer owing any allegiance to the Republic of the Philippines since they have sworn their total allegiance to a foreign state. In the instant case, private respondent vehemently denies having taken the oath of allegiance of the United States (p. 81, Rollo). He is a holder of a valid and subsisting Philippine passport and has continuously participated in the electoral process in this country since 1963 up to the present, both as a voter and as a candidate (pp. 107-108, Rollo). Thus, private respondent remains a Filipino and the loss of his Philippine citizenship cannot be presumed.

In the learned dissent of Mr. Justice Teodoro Padilla, he stresses the fact that because Osmeña obtained Certificates of Alien Registration as an American citizen, the first in 1958 when he was 24 years old and the second in 1979, he, Osmeña should be regarded as having expressly renounced Philippine citizenship. To Our mind, this is a case of non sequitur (It does not follow). Considering the fact that admittedly Osmeña was both a Filipino and an American, the mere fact that he has a Certificate stating he is an American does not mean that he is not still a Filipino. Thus, by way of analogy, if a person who has two brothers named Jose and Mario states or certifies that he has a brother named Jose, this does not mean that he does not have a brother named Mario; or if a person is enrolled as student simultaneously in two universities, namely University X and University Y, presents a Certification that he is a student of University X, this does not necessarily mean that he is not still a student of University Y. In the case of Osmeña, the Certification that he is an American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed, there is no express renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of said citizenship. When We consider that the renunciation needed to lose Philippine citizenship must be "express", it stands to reason that there can be no such loss of Philippine citizenship when there is no renunciation, either "express" or "implied ". Parenthetically, the statement in the 1987 Constitution that "dual allegiance of citizens is inimical to the national interest and shall be dealt with by law" (Art. IV, Sec. 5) has no retroactive effect. And while it is true that even before the 1987 Constitution, Our country had already frowned upon the concept of dual citizenship or allegiance, the fact is it actually existed. Be it noted further that under the aforecited proviso, the effect of such dual citizenship or allegiance shall be dealt with by a future law. Said law has not yet been enacted. WHEREFORE, the petition for certiorari is hereby DISMISSED and the Resolution of the COMELEC is hereby AFFIRMED. SO ORDERED. ||| (Aznar v. Commission on Elections, G.R. No. 83820, [May 25, 1990], 264 PHIL 307-331) [G.R. No. 83820. May 25, 1990.] JOSE B. AZNAR (as Provincial Chairman of PDP Laban in Cebu), petitioner, vs. COMMISSION ON ELECTIONS and EMILIO MARIO RENNER OSMEÑA, respondents. Rufino B. Requina for petitioner.

Angara, Abello, Concepcion, Regala & Cruz for private respondent.

DECISION

PARAS, J p: Before Us is a petition for certiorari assailing the Resolution of the Commission on Elections (COMELEC) dated June 11, 1988, which dismissed the petition for the disqualification of private respondent Emilio "Lito" Osmeña as candidate for Provincial Governor of Cebu Province. cdll The facts of the case are briefly as follows: On November 19, 1987, private respondent Emilio "Lito" Osmeña filed his certificate of candidacy with the COMELEC for the position of Provincial Governor of Cebu Province in the January 18, 1988 local elections. On January 22, 1988, the Cebu PDP-Laban Provincial Council (Cebu-PDP Laban, for short), as represented by petitioner Jose B. Aznar in his capacity as its incumbent Provincial Chairman, filed with the COMELEC a petition for the disqualification of private respondent on the ground that he is allegedly not a Filipino citizen, being a citizen of the United States of America. On January 27, 1988, petitioner filed a Formal Manifestation submitting a Certificate issued by the then Immigration and Deportation Commissioner Miriam Defensor Santiago certifying that private respondent is an American and is a holder of Alien Certificate of Registration (ACR) No. B-21448 and Immigrant Certificate of Residence (ICR) No. 133911, issued at Manila on March 27 and 28, 1958, respectively. (Annex "B-1"). The petitioner also filed a Supplemental Urgent Ex-Parte Motion for the Issuance of a Temporary Restraining Order to temporarily enjoin the Cebu Provincial Board of Canvassers from tabulating/canvassing the votes cast in favor of private respondent and proclaiming him until the final resolution of the main petition. Thus, on January 28, 1988, the COMELEC en banc resolved to order the Board to continue canvassing but to suspend the proclamation. At the hearing before the COMELEC (First Division), the petitioner presented the following exhibits tending to show that private respondent is an American citizen: Application for Alien Registration Form No. 1 of the Bureau of Immigration signed by private respondent dated November 21, 1979 (Exh. "B"); Alien Certificate of Registration No. 015356 in the name of private respondent dated November 21, 1979 (Exh. "C"); Permit to Re-enter the Philippines dated November 21, 1979 (Exh. "D"); Immigration Certificate of Clearance dated January 3, 1980 (Exh. "E"). (pp. 117-118, Rollo). Private respondent, on the other hand, maintained that he is a Filipino citizen, alleging: that he is the legitimate child of Dr. Emilio D. Osmeña, a Filipino and son of the late President Sergio Osmeña, Sr.; that he is a holder of a valid and subsisting Philippine Passport No. 0855103 issued on March 25, 1987; that he has been continuously residing in the Philippines since birth and has not gone out of the country for more than six months; and that he has been a registered voter in the Philippines since 1965. (pp. 107-108, Rollo) On March 3, 1988, COMELEC (First Division) directed the Board of Canvassers to proclaim the winning candidates. Having obtained the highest number of votes, private respondent was proclaimed the Provincial Governor of Cebu.

Thereafter, on June 11, 1988, COMELEC (First Division) dismissed the petition for disqualification for not having been timely filed and for lack of sufficient proof that private respondent is not a Filipino citizen. cdrep Hence, the present petition. The petition is not meritorious. There are two instances where a petition questioning the qualifications of a registered candidate to run for the office for which his certificate of candidacy was filed can be raised under the Omnibus Election Code (B.P. Blg. 881), to wit: "(1) Before election, pursuant to Section 78 thereof which provides that: 'Section 78. Petition to deny due course or to cancel a certificate of candidacy. — A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty five days from the time of the filing of the certificate of candidacy and shall be decided, after the notice and hearing, not later than fifteen days before the election. and "(2) After election, pursuant to Section 253 thereof, viz: 'Sec. 253. Petition for quo warranto. — Any voter contesting the election of any Member of the Batasang Pambansa, regional, provincial, or city officeron the ground of inelligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election." The records show that private respondent filed his certificate of candidacy on November 19, 1987 and that the petitioner filed its petition for disqualification of said private respondent on January 22, 1988. Since the petition for disqualification was filed beyond the twenty five-day period required in Section 78 of the Omnibus Election Code, it is clear that said petition was filed out of time. The petition for the disqualification of private respondent cannot also be treated as a petition for quo warranto under Section 253 of the same Code as it is unquestionably premature, considering that private respondent was proclaimed Provincial Governor of Cebu only on March 3, 1988. However, We deem it is a matter of public interest to ascertain the respondent's citizenship and qualification to hold the public office to which he has been proclaimed elected. There is enough basis for us to rule directly on the merits of the case, as the COMELEC did below. Petitioner's contention that private respondent is not a Filipino citizen and, therefore, disqualified from running for and being elected to the office of Provincial Governor of Cebu, is not supported by substantial and convincing evidence. In the proceedings before the COMELEC, the petitioner failed to present direct proof that private respondent had lost his Filipino citizenship by any of the modes provided for under C.A. No. 63. Among others, these are: (1) by naturalization in a foreign country; (2) by express renunciation of citizenship; and (3) by subscribing to an oath of allegiance to support the Constitution or laws of a foreign country. From the evidence, it is clear that private respondent Osmeña did not lose his Philippine citizenship by any of the three mentioned hereinabove or by any other mode of losing Philippine citizenship.

In concluding that private respondent had been naturalized as a citizen of the United States of America, the petitioner merely relied on the fact that private respondent was issued alien certificate of registration and was given clearance and permit to re-enter the Philippines by the Commission on Immigration and Deportation. Petitioner assumed that because of the foregoing, the respondent is an American and "being an American", private respondent "must have taken and sworn to the Oath of Allegiance required by the U.S. Naturalization Laws." (p. 81, Rollo) Philippine courts are only allowed to determine who are Filipino citizens and who are not. Whether or not a person is considered an American under the laws of the United States does not concern Us here. By virtue of his being the son of a Filipino father, the presumption that private respondent is a Filipino remains. It was incumbent upon the petitioner to prove that private respondent had lost his Philippine citizenship. As earlier stated, however, the petitioner failed to positively establish this fact. The cases of Juan Gallanosa Frivaldo v. COMELEC et al., (G.R. No. 87193, June 21, 1989) and Ramon L. Labo v. COMELEC et al. (G.R. No. 86564, August 1, 1989) are not applicable to the case at bar. In the Frivaldo case, evidence shows that he was naturalized as a citizen of the United States in 1983 per certification from the United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A. Frivaldo expressly admitted in his answer that he was naturalized in the United States but claimed that he was forced to embrace American citizenship to protect himself from the persecution of the Marcos government. The Court, however, found this suggestion of involuntariness unacceptable, pointing out that there were many other Filipinos in the United States similarly situated as Frivaldo who did not find it necessary to abandon their status as Filipinos. Likewise, in the case of Labo, records show that Labo was married to an Australian citizen and that he was naturalized as an Australian citizen in 1976, per certification from the Australian Government through its Consul in the Philippines. This was later affirmed by the Department of Foreign Affairs. The authenticity of the above evidence was not disputed by Labo. In fact, in a number of sworn statements, Labo categorically declared that he was a citizen of Australia. LexLib In declaring both Frivaldo and Labo not citizens of the Philippines, therefore, disqualified from serving as Governor of the Province of Sorsogon and Mayor of Baguio City, respectively, the Court considered the fact that by their own admissions, they are indubitably aliens, no longer owing any allegiance to the Republic of the Philippines since they have sworn their total allegiance to a foreign state. In the instant case, private respondent vehemently denies having taken the oath of allegiance of the United States (p. 81, Rollo). He is a holder of a valid and subsisting Philippine passport and has continuously participated in the electoral process in this country since 1963 up to the present, both as a voter and as a candidate (pp. 107-108, Rollo). Thus, private respondent remains a Filipino and the loss of his Philippine citizenship cannot be presumed.

In the learned dissent of Mr. Justice Teodoro Padilla, he stresses the fact that because Osmeña obtained Certificates of Alien Registration as an American citizen, the first in 1958 when he was 24 years old and the second in 1979, he, Osmeña should be regarded as having expressly renounced Philippine citizenship. To Our mind, this is a case of non sequitur (It does not follow). Considering the fact that admittedly Osmeña was both a Filipino and an American, the mere fact that he has a Certificate stating he is an American does not mean that he is not still a Filipino. Thus, by way of

analogy, if a person who has two brothers named Jose and Mario states or certifies that he has a brother named Jose, this does not mean that he does not have a brother named Mario; or if a person is enrolled as student simultaneously in two universities, namely University X and University Y, presents a Certification that he is a student of University X, this does not necessarily mean that he is not still a student of University Y. In the case of Osmeña, the Certification that he is an American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed, there is no express renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of said citizenship. When We consider that the renunciation needed to lose Philippine citizenship must be "express", it stands to reason that there can be no such loss of Philippine citizenship when there is no renunciation, either "express" or "implied ". Parenthetically, the statement in the 1987 Constitution that "dual allegiance of citizens is inimical to the national interest and shall be dealt with by law" (Art. IV, Sec. 5) has no retroactive effect. And while it is true that even before the 1987 Constitution, Our country had already frowned upon the concept of dual citizenship or allegiance, the fact is it actually existed. Be it noted further that under the aforecited proviso, the effect of such dual citizenship or allegiance shall be dealt with by a future law. Said law has not yet been enacted. WHEREFORE, the petition for certiorari is hereby DISMISSED and the Resolution of the COMELEC is hereby AFFIRMED. SO ORDERED. ||| (Aznar v. Commission on Elections, G.R. No. 83820, [May 25, 1990], 264 PHIL 307-331) EN BANC [G.R. No. L-21289. October 4, 1971.] MOY YA LIM YAO alias EDILBERTO AGUINALDO LIM and LAU YUEN YEUNG, petitioners-appellants, vs. THE COMMISSIONER OF IMMIGRATION, respondent-appellee. Aruego, Mamaril & Associates for petitioners-appellants. Solicitor General Arturo A. Alafriz, Asst. Sol. Gen. Frine C . Zaballero and Solicitor Sumilang V . Bernardo for respondent-appellee. SYLLABUS 1. POLITICAL LAW; CITIZENSHIP; IMMIGRATION ACT; SECTION 9 (G) THEREOF, NOT APPLICABLE TO ALIEN WHO LEGITIMATELY BECOMES FILIPINO. — Section 9 (g) of the Immigration Act does not apply to aliens who after coming into the Philippines as temporary visitors, legitimately become Filipino citizens or acquire Filipino citizenship. Such change of nationality naturally bestows upon them the right to stay in the Philippines permanently or not, as they may choose, and if they elect to reside here, the immigration authorities may neither deport them nor confiscate their bonds. 2. ID.; ID.; NATURALIZATION; EFFECTS. — The naturalization of an alien visitor as a Philippine citizen logically produces the effect of conferring upon himipso facto all the rights of citizenship including that of being entitled to permanently stay in the Philippines outside the orbit of authority of

the Commissioner of Immigration vis-avis aliens, if only because by its very nature and express provisions, the Immigration Law is a law only for aliens and is inapplicable to citizens of the Philippines. 3. STATUTORY CONSTRUCTION; WHERE LANGUAGE OF STATUTE IS SUSCEPTIBLE OF TWO CONSTRUCTIONS, THAT WHICH CARRIES OUT OBJECT PREVAILS. — A statute is to be construed with reference to its manifest object, and if the language is susceptible of two constructions, one which will carry out and the other defeat such manifest object, it should receive the former construction. A construction will cause objectionable results should be avoided and the court will, if possible, place on the statute a construction which will not result in injustice, and in accordance with the decisions construing statutes, a construction will not result in oppression, hardship, or inconveniences will also be avoided, as will a construction which will prejudice public interest, or construction resulting in unreasonableness, as well as a construction which will result in absurd consequences. 4. ID.; CONSTRUCTION AVOIDED IF INCONSISTENT WITH LEGISLATIVE INTENT. — So a construction should, if possible, be avoided if the result would be an apparent inconsistency in legislative intent, as has been determined by the judicial decisions, or which would result in futility, redundancy, or a conclusion not contemplated by the legislature; and the court should adopt that construction which will be the least likely to produce mischief. Unless plainly shown to have been the intention of the legislature an interpretation which would render the requirements of the statute uncertain and vague is to be avoided, and the court will not ascribe to the legislature an intent to confer an illusory right. 5. POLITICAL LAW; CITIZENSHIP; NATURALIZATION; POLICY OF SELECTIVE ADMISSION, EXPLAINED. — The avowed policy of "selective admission" more particularly refers to a case where a citizenship is sought to be acquired in a judicial proceeding for naturalization. In such a case, the courts should no doubt apply the national policy of selecting only those who are worthy to be come citizens. There is here a choice between accepting or rejecting the application for citizenship. But this policy finds no application is cases where citizenship is conferred by operation of law. In such cases, the courts have no choice to accept or reject. If the individual claiming citizenship by operations of law proves in legal proceedings that he satisfies the statutory requirements, the cannot do otherwise than to declare that he is a citizens of the Philippines. 6. ID.; ID.; ID.; ALIEN WOMAN MARRYING FILIPINO IPSO FACTO BECOME CITIZEN PROVIDED NOT DISQUALIFIED BY LAW. — We now hold, all previous decisions of this Court indicating otherwise notwithstanding, that under Section 15 of Commonwealth Act 473, an alien woman marrying a Filipino, native-born or naturalized, becomes ipso facto a Filipina provided she is not disqualified to be a citizen of the Philippines under Section 4 of the same law. Likewise, an alien woman married an alien who is subsequently naturalized here follows the Philippine citizenship of her husband the moment he takes his oath as Filipino citizens, provided that she does not suffer from any of the disqualifications under said Section 4. 7. ID.; ID.; ID.; ID.; NATURALIZATION PROCEEDING, NOT REQUIRED. — Section 16 is a parallel provision to Section 15. If the widow of an applicant for naturalization a Filipino, who dies during the proceedings, is not required to go through a naturalization proceeding, in order to be considered as a Filipino citizen hereof, it should not follow that the wife of a living Filipino cannot be denied that same privilege. This is plain common sense and there is absolutely no evidence that the Legislature intended to treat them differently. 8. ID.; ID.; ID.; MODES OF. — The Constitution itself recognizes as Philippine citizens "Those who are naturalized in accordance with law" (Section 1 [5], Article IV, Philippine Constitution). Citizens by naturalization, under this provision, include not only those who are naturalized in accordance with legal proceedings for the acquisition of citizenship, but also those who acquire citizenship by

"derivative naturalization" or by operation of law, as, for example, the "naturalization" of an alien wife through the naturalization of her husband, or by marriage of an alien woman to a citizen. 9. ID.; ID.; ID.; SECTION 15 OF REVISED NATURALIZATION LAW; PURPOSE. — The leading idea or purpose of Section 15 was to confer Philippine citizenship by operation of law upon certain classes of aliens as a legal consequence of their relationship, by blood or by affinity, to persons who are already citizens of the Philippines. Whenever the fact of relationship of the persons enumerated in the provisions concurs with the fact of citizenship of the person to who they are related, the effect is for said person to become ipso facto citizens of the Philippines. "Ipso facto" as here used does not mean that all alien wives and all minor children of the Philippine citizens, from the mere fact of relationship, necessarily become such citizens also. Those who do not meet the statutory requirements do not ipso facto become citizens; they must apply for naturalization in order to acquire such status. What it does mean, however, is that in respect of those persons enumerated in Section 15, the relationship to a citizen of the Philippines is the operative fact which establishes the acquisition of Philippine citizenship by them. Necessarily, it also determines the point of time at which such citizenship commences. 10. ID.; ID.; ID.; ID.; ALIEN WIFE DEEMED A CITIZEN IF SHE MIGHT HERSELF BE NATURALIZED. — The legislature could not have intended that an alien wife should not be deemed a Philippine citizen unless and until she proves that she might herself be lawfully naturalized. Far from it, the law states in plain terms that she shall be deemed a citizen of the Philippines if she is one "who might herself be lawfully naturalized." The proviso that she must be one "who might herself be lawfully naturalized" is not a condition precedent to the vesting or acquisition of citizenship; it is only a condition or a state of fact necessary to establish her citizenship as a factum probandum, i.e., as a fact established and proved in evidence. The word "might," as used in that phrase, precisely implies that at the time of her marriage to Philippine citizen, the alien woman "had (the) power" to become such a citizen herself under the laws then in force. 11. ID.; ID.; RES JUDICATA NOT APPLICABLE TO RULINGS THEREON. — Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding court or administrative authority decides therein as to such citizenship is generally not considered as res adjudicata, hence it has to be threshed out again and again as the occasion may demand. 12. ID.; ID.; NATURALIZATION; PROCEDURES FOR ALIEN WIFE TO ACQUIRE PHILIPPINE CITIZENSHIP. — Regarding the steps that should be taken by an alien woman married to a Filipino citizen in order to acquire Philippine citizenship, the procedure followed in the Bureau of Immigration is as follows: The alien woman must file a petition for the cancellation of her alien certificate of registration alleging, among other things, that she is married to a Filipino citizen and that she is not disqualified from acquiring her husband's citizenship pursuant to Section 4 of Commonwealth Act No. 473, as amended. Upon the filing of the said petition, which should be accompanied or supported by the joint affidavit of the petitioner and her Filipino husband to the effect that the petitioner does not belong to any of the groups disqualified by the cited Section from becoming naturalized Filipino citizen, the Bureau of Immigration conducts an investigation and thereafter promulgates its order or decision granting or denying the petition. REYES, J.B.L., J., dissenting: POLITICAL LAW; CITIZENSHIP; NATURALIZATION; ALIEN WOMAN MARRIED TO FILIPINO MUST PROVE QUALIFICATIONS UNDER SECTION 3. — Our naturalization law separates qualifications from disqualifications; the positive qualifications under Section 3 thereof express a policy of restriction as to candidates for naturalization as much as the disqualifications under Section 4. And it has been shown in our decision in the second Ly Giok Ha case (Ly Giok Ha vs. Galang, L21332 March 18, 1966, 16 SCRA 416) that those not disqualified under Section 4 would not

necessarily qualify under Section 3, even if the residence qualification were disregarded. In other words, by giving to Section 15 of our Naturalization Law the effect of excluding only those women suffering from disqualification under Section 3 could result in admitting to citizenship woman that Section 2 intends to exclude. In these circumstances, I do not see why American interpretation of the words who might herself be lawfully naturalized should be considered hinding in this jurisdiction.

DECISION

BARREDO, J p: Appeal from the following decision of the Court of First Instance of Manila in its Civil Case No. 49705 entitled Moy Ya Lim Yao, etc., et al. vs. The Commissioner of Immigration which, brief as it is, sufficiently depicts the factual setting of and the fundamental issues involved in this case thus: "In the instant case, petitioners seek the issuance of a writ of injunction against the Commissioner of Immigration, 'restraining the latter and/or his authorized representative from ordering plaintiff Lau Yuen Yeung to leave the Philippines and causing her arrest and deportation and the confiscation of her bond, upon her failure to do so.' "The prayer for preliminary injunction embodied in the complaint, having been denied, the case was heard on the merits and the parties submitted their respective evidence. "The facts of the case, as substantially and correctly stated by the Solicitor General are these: 'On February 8, 1961, Lau Yuen Yeung applied for a passport visa to enter the Philippines as a non-immigrant. In the interrogation made in connection with her application for a temporary visitor's visa to enter the Philippines, she stated that she was a Chinese residing at Kowloon, Hongkong, and that she desired to take a pleasure trip to the Philippines to visit her great (grand) uncle Lau Ching Ping for a period of one month (Exhibits '1,' '1-a,' and '2'). She was permitted to come into the Philippines on March 13, 1961, and was permitted to stay for a period of one month which would expire on April 13, 1961. On the date of her arrival, Asher Y, Cheng filed a bond in the amount of P1,000.00 to undertake, among others, that said Lau Yuen Yeung would actually depart from the Philippines on or before the expiration of her authorized period of stay in this country or within the period as in his discretion the Commissioner of Immigration or his authorized representative might properly allow. After repeated extensions, petitioner Lau Yuen Yeung was allowed to stay in the Philippines up to February 13, 1962 (Exhibit '4'). On January 25, 1962, she contracted marriage with Moy Ya Lim Yao alias Edilberto Aguinaldo Lim an alleged Filipino citizen. Because of the contemplated action of respondent to confiscate her bond and order her arrest and immediate deportation, after the expiration of her authorized stay, she brought this action for injunction with preliminary injunction. At the hearing which took place one and a half years after her arrival, it was admitted that petitioner Lau Yuen Yeung could not write either English or Tagalog. Except for a few words, she could not speak either English or Tagalog. She could not name any Filipino neighbor, with a Filipino

name except one, Rosa. She did not know the names of her brothers-in-law, or sisters-in-law.' "Under the facts unfolded above, the Court is of the considered opinion, and so holds, that the instant petition for injunction cannot be sustained for the same reasons set forth in the Order of this Court, dated March 19, 1962, the pertinent portions of which read: 'First, Section 15 of the Revised Naturalization Law provides: "'Effect of the naturalization on wife and children. — Any woman who is now or may hereafter be married to a citizen of the Philippines, and who might herself be lawfully naturalized shall be deemed a citizen of the Philippines." The above-quoted provision is clear and its import unequivocal and hence it should be held to mean what it plainly and explicitly expresses in unmistakable terms. The clause 'who might herself be lawfully naturalized' incontestably implies that an alien woman may be deemed a citizen of the Philippines by virtue of her marriage to a Filipino citizen only if she possesses all the qualifications and none of the disqualifications specified in the law,because these are the explicit requisites provided by law for an alien to be naturalized. (Lee Suan Ay, Alberto Tan and Lee Chiao vs. Emilio Galang, etc., G. R. No. L-11855). However, from the allegation of paragraph 3 of the complaint, to wit: "'3. That plaintiff Lau Yuen Yeung, Chinese by birth, who might herself be lawfully naturalized as a Filipino citizen (not being disqualified to become such by naturalization), is a Filipino citizen by virtue of her marriage on January 25, 1962 to plaintiff MOY YA LIM YAO alias EDILBERTO AGUINALDO LIM, under the Naturalization Laws of the Philippines." it can be deduced beyond debate that petitioner Lau Yuen Yeung while claiming not to be disqualified, does not and cannot allege that she possesses all the qualifications to be naturalized, naturally because, having been admitted as a temporary visitor only on March 13, 1961, it is obvious at once that she lacks at least, the requisite length of residence in the Philippines (Revised Naturalization Law, Sec. 2, Case No. 2, Sec. 3, Case No. 3). 'Were if the intention of the law that the alien woman, to be deemed a citizen of the Philippines by virtue of marriage to a Filipino citizen, need only be not disqualified under the Naturalization Law, it would have been worded "and who herself is not disqualified to become a citizen of the Philippines." 'Second, Lau Yuen Yeung, a temporary Chinese woman visitor, whose authorized stay in the Philippines, after repeated extensions thereof, was to expire last February 28, 1962, having married her co-plaintiff only on January 25, 1962, or just a little over one month before the expiry date of her stay, it is evident that said marriage was effected merely for convenience to defeat or avoid her then impending compulsory departure, not to say deportation. This cannot be permitted. 'Third, as the Solicitor General has well stated: "'5. That petitioner Lau Yuen Yeung, having been admitted as a temporary alien visitor on the strength of a deliberate and voluntary representation that she will enter and stay only for a period of one month and thereby secured a visa, cannot go back on her representation to stay permanently without first departing from the Philippines as she had promised." (Chung Tiao Bing, et al.

vs. Commissioner of Immigration, G. R. No. L-9966, September 29, 1956; Ong Se Lun vs. Board of Commissioners, G. R. No. L-6017, September 16, 1954; Sec. 9, last par., Phil. Immigration Law). The aforequoted argument of the Solicitor General is well buttressed, not only by the decided cases of the Supreme Court on the point mentioned above, but also on the very provisions of Section 9, sub-paragraph (g) of the Philippine Immigration Act of 1940 which reads: " 'An alien who is admitted as a non-immigrant cannot remain in the Philippines permanently. To obtain permanent admission, a non-immigrant alien must depart voluntarily to some foreign country and procure from the appropriate Philippine Consul the proper visa and thereafter undergo examination by the Officers of the Bureau of Immigration at a Philippine port of entry for determination of his admissibility in accordance with the requirements of this Act. (This paragraph is added by Republic Act 503).'" (Sec. 9, subparagraph (g) of the Philippine Immigration Act of 1940). 'And fourth, respondent Commissioner of Immigration is charged with the administration of all laws relating to immigration (Sec. 3, Com. Act No. 613) and in the performance of his duties in relation to alien immigrants, the law gives the Commissioner of Immigration a wide discretion, a quasi-judicial function in determining cases presented to him (Pedro Uy So vs. Commissioner of Immigration CA-G. R. No. 23336-R, Dec 15, 1960), so that his decision thereon may not be disturbed unless he acted with abuse of discretion or in excess of his jurisdiction.' "It may also be not amiss to state that wife Lau Yuen Yeung, while she barely and insufficiently talk in broken Tagalog and English, she admitted that she cannot write either language." The only matter of fact not clearly passed upon by His Honor which could have some bearing in the resolution of this appeal is the allegation in the brief of petitioners-appellants, not denied in the government's brief, that "in the hearing . . . , it was shown thru the testimony of the plaintiff Lau Yuen Yeung that she does not possess any of the disqualifications for naturalization." Of course, as an additional somehow relevant factual matter, it is also emphasized by said appellants that during the hearing in the lower court, held almost ten months after the alleged marriage of petitioners, "Lau Yuen Yeung was already carrying in her womb for seven months a child by her husband." Appellants have assigned six errors allegedly committed by the court a quo, thus: I THE LOWER COURT ERRED IN HOLDING THAT THE CLAUSE 'WHO MIGHT HERSELF BE LAWFULLY NATURALIZED' (OF SECTION 15, REVISED NATURALIZATION LAW) INCONTESTABLY IMPLIES THAT AN ALIEN WOMAN MAY BE DEEMED A CITIZEN OF THE PHILIPPINES BY VIRTUE OF HER MARRIAGE TO A FILIPINO CITIZEN, ONLY IF SHE POSSESSES ALL THE QUALIFICATIONS AND NONE OF THE DISQUALIFICATIONS SPECIFIED IN THE LAW. II THE LOWER COURT ERRED IN HOLDING THAT A WOMAN FOREIGNER WHO DOES NOT POSSESS ANY OF THE DISQUALIFICATIONS FOR CITIZENSHIP AND WHO MARRIED A FILIPINO CITIZEN IS STILL CONSIDERED AN ALIEN EVEN

AFTER SUCH MARRIAGE AS TO FALL WITHIN THE REQUIREMENT OF SECTION 9, SUB-PARAGRAPH (9) OF THE PHILIPPINE IMMIGRATION ACT OF 1940. III THE COURT ERRED IN CONCLUDING THAT LAU YUEN YEUNG'S MARRIAGE TO A FILIPINO CITIZEN WAS ONLY FOR CONVENIENCE, MERELY BECAUSE THE SAME WAS CELEBRATED JUST OVER A MONTH BEFORE THE EXPIRY DATE OF HER AUTHORIZED STAY. IV THE LOWER COURT ERRED IN FAILING TO FIND THAT THE COMMISSIONER OF IMMIGRATION ACTED WITH ABUSE OF DISCRETION OR IN EXCESS OF HIS JURISDICTION WHEN SAID OFFICER THREATENED TO SEND OUT OF THE COUNTRY PLAINTIFF LAU YUEN YEUNG WITH WARNING THAT HER FAILURE TO DO SO WOULD MEAN CONFISCATION OF HER BOND, ARREST AND IMMEDIATE DEPORTATION, IN SPITE OF THE FACT THAT LAU YUEN YEUNG IS NOW A FILIPINO CITIZEN. V THE LOWER COURT ERRED IN DISMISSING PLAINTIFFS-APPELLANTS' COMPLAINT AND IN REFUSING TO PERMANENTLY ENJOIN THE COMMISSIONER FROM ORDERING PLAINTIFF LAU YUEN YEUNG TO LEAVE THE PHILIPPINES AS A TEMPORARY VISITOR WHICH SHE IS NOT.

VI THE LOWER COURT ERRED IN REFUSING TO GRANT PLAINTIFFSAPPELLANTS' MOTION FOR PRELIMINARY INJUNCTION EMBODIED IN THEIR COMPLAINT, IN AN ORDER DATED MARCH 19, 1962. (PAGES 36-41, RECORD ON APPEAL). We need not discuss these assigned errors separately. In effect, the above decision upheld the two main grounds of objection of the Solicitor General to the petition in the court below, viz: "That petitioner Lau Yuen Yeung, having been admitted as a temporary alien visitor on the strength of a deliberate and voluntary representation that she will enter and stay only for a period of one month and thereby secured a visa, cannot go back on her representation to stay permanently without first departing from the Philippines as she had promised (Chung Tiao Bing, et al. vs. Commissioner of Immigration, G.R. No. L9966, September 29, 1956; Ong Se Lun vs. Board of Commissioners, G.R. No. L6017, Sept. 16, 1954, Sec. 9, last par. Phil. Immigration Law); "That the mere marriage of a Filipino citizen to an alien does not automatically confer on the latter Philippine citizenship. The alien wife must possess all the qualifications required by law to become a Filipino citizen by naturalization and none of the disqualifications. (Lee Suan Ay, Alberto Tan and Lee Chiao vs. Galang, etc., G. R. No. L-11855, Dec. 25, 1959)" It is obvious from the nature of these objections that their proper resolution would necessarily cover all the points raised in appellants' assignments of error, hence, We will base our discussions, more or less, on said objections. I.

The first objection of the Solicitor General which covers the matters dealt with in appellants' second and fourth assignments of error does not require any lengthy discussion. As a matter of fact, it seems evident that the Solicitor General's pose that an alien who has been admitted into the Philippines as a non-immigrant cannot remain here permanently unless he voluntarily leaves the country first and goes to a foreign country to secure thereat from the appropriate Philippine consul the proper visa and thereafter undergo examination by officers of the Bureau of Immigration at a Philippine port of entry for determination of his admissibility in accordance with the requirements of the Philippine Immigration Act of 1940, as amended by Republic Act 503, is premised on the assumption that petitioner Lau Yuen Yeung is not a Filipino citizen. We note the same line of reasoning in the appealed decision of the court a quo. Accordingly, it is but safe to assume that were the Solicitor General and His Honor of the view that said petitioner had become ipso facto a Filipina by virtue of her marriage to her Filipino husband, they would have held her as entitled to assume the status of a permanent resident without having to depart as required of aliens by Section 9(g) of the law. In any event, to set this point at rest, We hereby hold that portion of Section 9(g) of the Immigration Act providing: "An alien who is admitted as a non-immigrant cannot remain in the Philippines permanently. To obtain permanent admission, a non-immigrant alien must depart voluntarily to some foreign country and procure from the appropriate Philippine consul the proper visa and thereafter undergo examination by the officers of the Bureau of Immigration at a Philippine port of entry for determination of his admissibility in accordance with the requirements of this Act." does not apply to aliens who after coming into the Philippines as temporary visitors, legitimately become Filipino citizens or acquire Filipino citizenship. Such change of nationality naturally bestows upon them the right to stay in the Philippines permanently or not, as they may choose, and if they elect to reside here, the immigration authorities may neither deport them nor confiscate their bonds. True it is that this Court has vehement]y expressed disapproval of convenient ruses employed by aliens to convert their status from temporary visitors to permanent residents in circumvention of the procedure prescribed by the legal provision already mentioned, such as in Chiong Tiao Bing vs. Commissioner of Immigration, 99 Phil. 1020, wherein, thru Mr. Justice J.B.L. Reyes, the Court, reiterating the ruling in Ong Se Lun vs. Board of Immigration Commissioners, 95 Phil. 785, said: ". . . It is clear that if an alien gains admission to the Islands on the strength of a deliberate and voluntary representation that he will enter only for a limited time, and thereby secures the benefit of a temporary visa, the law will not allow him subsequently to go back on his representation and stay permanently, without first departing from the Philippines as he had promised. No officer can relieve him of the departure requirements of section 9 of the Immigration Act, under the guise of 'change' or 'correction', for the law makes no distinctions, and no officer is above the law. Any other ruling would, as stated in our previous decision, encourage aliens to enter the Islands on false pretences; every alien so permitted to enter for a limited time, might then claim a right to permanent admission, however flimsy such claim should be, and thereby compel our government to spend time, money and effort to examining and verifying whether or not every such alien really has a right to take up permanent residence here. In the meanwhile, the alien would be able to prolong his stay and evade his return to the port whence he came, contrary to what he promised to do when he entered. The damages inherent in such ruling are self-evident." On the other hand, however, We cannot see any reason why an alien who has been here as a temporary visitor but who has in the meanwhile become a Filipino should be required to still leave the Philippines for a foreign country, only to apply thereat for a re-entry here and undergo the process of

showing that he is entitled to come back, when after all, such right has become incontestible as a necessary concomitant of his assumption of our nationality by whatever legal means this hag been conferred upon him. Consider, for example, precisely the case of the minor children of an alien who is naturalized. It is indubitable that they become ipso facto citizens of the Philippines. Could it be the law that before they can be allowed permanent residence, they still have to be taken abroad so that they may be processed to determine whether or not they have a right to have permanent residence here? The difficulties and hardships which such a requirement entails and its seeming unreasonableness argue against such a rather absurd construction. Indeed, as early as 1957, in Ly Giok Ha vs. Galang, 101 Phil. 459, Mr. Justice Concepcion, our present Chief Justice, already ruled thus: ". . . (P)etitioners allege that, upon her marriage to a Filipino, Ly Giok Ha became also a citizen of the Philippines. Indeed, if this conclusion were correct, it would follow that, in consequence of her marriage, she had been naturalized as such citizen, and, hence the decision appealed from would have to be affirmed, for section 40(c) of Commonwealth Act 613 provides that 'in the event of the naturalization as a Philippine citizen . . . of the alien on whose behalf the bond deposit is given, the bond shall be cancelled or the be deposited shall be returned to the depositor or his legal representative.'" (At. pp. 462-463) In other words, the applicable statute itself more than implies that the naturalization of an alien visitor as a Philippine citizen logically produces the effect of conferring upon him ipso facto all the rights of citizenship including that of being entitled to permanently stay in the Philippines outside the orbit of authority of the Commissioner of Immigration vis-a-vis aliens, if only because by its very nature and express provisions, the Immigration Law is a law only for aliens and is inapplicable to citizens of the Philippines. In the sense thus discussed, therefore, appellants' second and fourth assignments of error are well taken. II. Precisely, the second objection of the Solicitor General sustained by the trial judge is that appellant Lau Yuen Yeung's marriage to appellant Moya Lim Yaoalias Edilberto Aguinaldo whose Filipino citizenship is not denied did not have the effect of making her a Filipino, since it has not been shown that she "might herself be lawfully naturalized," it appearing clearly in the record that she does not possess all the qualifications required of applicants for naturalization by the Revised Naturalization Law, Commonwealth Act 473, even if she has proven that she does not suffer from any of the disqualifications thereunder. In other words, the Solicitor General implicitly concedes that had it been established in the proceedings below that appellant Lau Yuen Yeung possesses all the qualifications required by the law of applicants for naturalization, she would have been recognized by the respondent as a Filipino citizen in the instant case, without requiring her to submit to the usual proceedings for naturalization. To be sure, this position of the Solicitor General is in accord with what used to be the view of this Court since Lee Suan Ay, et al. v. Emilio Galang, etc., et al., G.R. No. L-11855, promulgated December 23, 1959, 106 Phil., 706, 713, 1 for it was only in Zita Ngo Burca vs. Republic, G.R. No. L24252 which was promulgated on January 30, 1967 (19 SCRA 186), that over the pen of Mr. Justice Conrado Sanchez, this Court held that for an alien woman who marries a Filipino to be deemed a Filipina, she has to apply for naturalization in accordance with the procedure prescribed by the Revised Naturalization Law and prove in said naturalization proceeding not only that she has all the qualifications and none of the disqualifications provided in the law but also that she has complied with all the formalities required thereby like any other applicant for naturalization, 2 albeit said decision is not yet part of our jurisprudence inasmuch as the motion for its reconsideration is still pending resolution. Appellants are in effect urging Us, however, in their first and second assignments of error, not only to reconsider Burca but to even reexamine Lee Suan Ay which, as a matter of fact, is the prevailing rule, having been reiterated in all subsequent decisions up to Go Im Ty. 3

Actually, the first case in which Section 15 of the Naturalization Law, Commonwealth Act 473, underwent judicial construction was in the first Ly Giok Ha case, 4 one almost identical to the one at bar. Ly Giok Ha, a woman of Chinese nationality, was a temporary visitor here whose authority to stay was to expire on March 14, 1956. She filed a bond to guaranty her timely departure. On March 8, 1956, eight days before the expiration of her authority to stay, she married a Filipino by the name of Restituto Lacasta. On March 9, 1956, her husband notified the Commissioner of Immigration of said marriage and, contending that his wife had become a Filipina by reason of said marriage, demanded for the cancellation of her bond, but instead of acceding to such request, the Commissioner required her to leave, and upon her failure to do so, on March 16, 1956, the Commissioner confiscated her bond; a suit was filed for the recovery of the bond; the lower court sustained her contention that she had no obligation to leave because she had become Filipina by marriage, hence her bond should be returned. The Commissioner appealed to this Court. In the said appeal, Mr. Justice Roberto Concepcion, our present Chief Justice, spoke for the Court, thus: "The next and most important question for determination is whether her marriage to a Filipino justified or, at least, excused the aforesaid failure of Ly Giok Ha to depart from the Philippines on or before March 14, 1956. In maintaining the affirmative view, petitioners alleged that, upon her marriage to a Filipino, Ly Giok Ha became, also, a citizen of the Philippines. Indeed, if this conclusion were correct, it would follow that, in consequence of her marriage, she had been naturalized as such citizen, and, hence, the decision appealed from would have to be affirmed, for section 40(c) of Commonwealth Act No. 613 provides that 'in the event of the naturalization as a Philippine citizen . . . of the alien on whose behalf the bond deposit is given, the bond shall be cancelled or the sum deposited shall be returned to the depositor or his legal representative." Thus the issue boils down to whether an alien female who marries a male citizen of the Philippines follows ipso facto his political status. "The pertinent part of section 15 of Commonwealth Act No. 473, upon which petitioners rely, reads: 'Any woman who is now or may hereafter be married to a citizen of the Philippines, and who might herself be lawfully naturalized shall be deemed a citizen of the Philippines.' "Pursuant thereto, marriage to a male Filipino does not vest Philippine citizenship to his foreign wife, unless she 'herself may be lawfully naturalized.' As correctly held in an opinion of the Secretary of Justice (O.p. No. 52, series of 1950), * this limitation of section 15 excludes, from the benefits of naturalization by marriage, those disqualified from being naturalized as citizens of the Philippines under section 4 of said Commonwealth Act No. 473, namely: '(a) Persons opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized governments; '(b) Persons defending or teaching the necessity or propriety of violence, personal assault, or assassination for the success and predominance of their ideas; '(c) Polygamists or believers in the practice of polygamy; '(d) Persons convicted of crimes involving moral turpitude; '(e) Persons suffering from mental alienation or incurable contagious diseases;

'(f) Persons who, during the period of their residence in the Philippines, have not mingled socially with the Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions, and ideals of the Filipinos; '(g) Citizens or subjects of nations with whom the . . . Philippines are at war, during the period of such war; '(h) Citizens or subjects of a foreign country other than the United States, whose laws does not grant Filipinos the right to become naturalized citizens or subjects thereof.' "In the case at bar, there is neither proof nor allegation in the pleadings that Ly Giok Ha does not fall under any of the classes disqualified by law. Moreover, as the parties who claim that, despite her failure to depart from the Philippines within the period specified in the bond in question, there has been no breach thereof, petitioners have the burden of proving her alleged change of political status, from alien to citizen. Strictly speaking, petitioners have not made out, therefore a case against the respondents-appellants. "Considering, however, that neither in the administrative proceedings, nor in the lower court, had the parties seemingly felt that there was an issue on whether Ly Giok Ha may 'be lawfully naturalized,' and this being a case of first impression in our courts, we are of the opinion that, in the interest of equity and justice, the parties herein should be given an opportunity to introduce evidence, if they have any, on said issue." (At pp. 462-464.). As may be seen, although not specifically in so many words, no doubt was left in the above decision as regards the following propositions: 1. That under Section 15 of Commonwealth Act 473, the Revised Naturalization Law, the marriage of an alien woman to a Filipino makes her a Filipina, if she "herself might be lawfully naturalized"; 2. That this Court declared as correct the opinion of the Secretary of Justice that the limitation of Section 15 of the Naturalization Law excludes from the benefits of naturalization by marriage, only those disqualified from being naturalized under Section 4 of the law quoted in the decision; 3. That evidence to the effect that she is not disqualified may be presented in the action to recover her bond confiscated by the Commissioner of Immigration; 4. That upon proof of such fact, she may be recognized as Filipina; and 5. That in referring to the disqualifications enumerated in the law, the Court somehow left the impression that no inquiry need be made as to qualifications, 5 specially considering that the decision cited and footnoted several opinions of the Secretary of Justice, the immediate superior of the Commissioner of Immigration, the most important of which are the following: "Paragraph (a), section 13 of Act No. 2927, as amended, (now section 15, Commonwealth Act No. 473), provided that 'any woman who is now or may hereafter be married to a citizen of the Philippines, and who might herself be lawfully naturalized shall be deemed a citizen of the Philippines.' A similar provision in the naturalization law of the United States has been construed as not requiring the woman to have the qualifications of residence, good character, etc., as in the case of naturalization by judicial proceedings, but merely that she is of the race of persons who may be naturalized. (Kelly v. Owen [Dist. Col. 1868] 7 Wall 496, 5F, 11, 12; ex parte Tryason [D. C. Wash. 1914] 215 F. 449, 27 Op. Atty. Gen. 507). (Op. No. 168, s. 1940 of Justice Sec. Jose Abad Santos.)

"In a previous opinion rendered for your Office, I stated that the clause 'who might herself be lawfully naturalized', should be construed as not requiring the woman to have the qualifications of residence, good character, etc., as in cases of naturalization by judicial proceedings, but merely that she is of the race of persons who may be naturalized. (Op. No. 79, s. 1940) "Inasmuch as the race qualification has been removed by the Revised Naturalization Law, it results that any woman who married a citizen of the Philippines prior to or after June 17, 1939, and the marriage not having been dissolved, and on the assumption that she possesses none of the disqualifications mentioned in Section 4 of Commonwealth Act No. 473, follows the citizenship of her husband." (Op. No. 176, v. 1940 of Justice Sec. Jose Abad Santos.) "From the foregoing narration of facts, it would seem that the only material point of inquiry is as to the citizenship of Arce Machura. If he shall be found to be a citizen of the Philippines, his wife, Mrs. Lily James Machura, shall likewise be deemed a citizen of the Philippines pursuant to the provision of Section 15, Commonwealth Act No. 473, which reads in part as follows: 'Any woman who is now or may hereafter be married to a citizen of the Philippines, and who might herself be lawfully naturalized shall be deemed a citizen of the Philippines.' "The phrase 'who might herself be lawfully naturalized', as contained in the above provision, means that the woman who is married to a Filipino citizen must not belong to any of the disqualified classes enumerated in Section 4 of the Naturalization Law (Ops., Sec. of Jus., No. 28, s. 1950; No. 43, s. 1948, No. 95, s. 1941: Nos. 79 and 168, s. 1940). Under the facts stated in the within papers, Mrs. Machura does not appear to be among the disqualified classes mentioned in the law. "It having been shown that Arce Machura or Arsenio Guevara was born as an illegitimate of a Filipino mother, he should be considered as a citizen of the Philippines in consonance with the well-settled rule that an illegitimate child follows the citizenship of his only legally recognized parent, the mother (Op., Sec. of Jus., Nos. 58, 98 & 281, s. 1948; No. 96, s. 1949). Her husband being a Filipino, Mrs. Machura must necessarily be deemed as a citizen of the Philippines by marriage (Sec. 15, Com. Act No. 473.) (Op. No. 52, s. 1950 of Justice Sec. Ricardo Nepomuceno.) The logic and authority of these opinions, compelling as they are, must have so appealed to this Court that five days later, on May 22, 1957, in Ricardo Cua v. The Board of Commissioners, 101 Phil. 521, Mr. Justice J.B.L. Reyes, reiterated the same ruling on the basis of the following facts: Tjioe Wu Suan, an Indonesian, arrived in Manila on November 1, 1952, but it turned out that her passport was forged. On December 10, 1953, a warrant was issued for her arrest for purposes of deportation. Later, on December 20, 1953, she married Ricardo Cua, a Filipino, and because of said marriage, the Board of Special Inquiry considered her a Filipina. Upon a review of the case, however, the Board of Immigration Commissioners insisted on continuing with the deportation proceedings and so, the husband filed prohibition and mandamus proceedings. The lower court denied the petition. Although this Court affirmed said decision, it held, on the other hand, that:

"Granting the validity of marriage, this Court has ruled in the recent case of Ly Giok Ha v. Galang, supra, p. 459, that the bare fact of a valid marriage to a citizen does not suffice to confer his citizenship upon the wife. Section 15 of the Naturalization Law requires that the alien woman who marries a Filipino must show, in addition, that she

'might herself be lawfully naturalized' as a Filipino citizen. As construed in the decision cited, this last condition requires proof that the woman who married a Filipino is herself not disqualified under section 4 of the Naturalization Law. "No such evidence appearing on record, the claim of assumption of Filipino citizenship by Tjioe Wu Suan, upon her marriage to petitioner, is untenable. The lower court, therefore, committed no error in refusing to interfere with the deportation proceedings, where she can anyway establish the requisites indispensable for her acquisition of Filipino citizenship, as well as the alleged validity of her Indonesian passport." (Ricardo Cua v. The Board of Immigration Commissioners, G. R. No. L-9997, May 22, 1957, 101 Phil. 521, 523.) [Emphasis supplied] For emphasis, it is reiterated that in the above two cases, this Court expressly gave the parties concerned opportunity to prove the fact that they were not suffering from any of the disqualifications of the law without the need of undergoing any judicial naturalization proceeding. It may be stated, therefore, that according to the above decisions, the law in this country, on the matter of the effect of marriage of an alien woman to a Filipino is that she thereby becomes a Filipina, if it can be proven that at the time of such marriage, she does not possess any of the disqualifications enumerated in Section 4 of the Naturalization Law, without the need of submitting to any naturalization proceedings under said law. It is to be admitted that both of the above decisions made no reference to qualifications, that is, as to whether or not they need also to be proved, but, in any event, it is a fact that the Secretary of Justice understood them to mean that such qualifications need not be possessed nor proven. Then Secretary of Justice Jesus Barrera, who later became a distinguished member of this Court, 6 so ruled in opinions rendered by him subsequent to Ly Giok Ha, the most illustrative of which held: "At the outset it is important to note that an alien woman married to a Filipino citizen needs only to show that she 'might herself be lawfully naturalized' in order to acquire Philippine citizenship. Compliance with other conditions of the statute, such as those relating to the qualifications of an applicant for naturalization through judicial proceedings, is not necessary (See: Leonard v. Grant, 5 Fed. 11; 27 Ops. Atty. Gen [U.S.] 507; Ops Sec. of Justice, No. 776, s. 1940, and No. 111, s. 1953. "This view finds support in the case of Ly Giok Ha et al. v. Galang et al., G.R. No. L10760, promulgated May 17, 1957, where the Supreme Court, construing the abovequoted section of the Naturalization Law, held that 'marriage to a male Filipino does not vest Philippine citizenship to his foreign wife, unless she 'herself may he lawfully naturalized,' and that 'this limitation of Section 15 excludes, from the benefits of naturalization by marriage, those disqualified from being naturalized as citizens of the Philippines under Section 4 of said Commonwealth Act No. 473.' In other words, disqualification for any of the causes enumerated in Section 4 of the Act is the decisive factor that defeats the right of the foreign wife of a Philippine citizen to acquire Philippine citizenship. xxx xxx xxx "Does petitioner, Lim King Bian, belong to any of these groups ? The Commissioner of Immigration does not say so but merely predicates his negative action on the ground that a warrant of deportation for 'overstaying' is pending against the petitioner. "We do not believe the position is well taken. Since the grounds for disqualification for naturalization are expressly enumerated in the law, a warrant of deportation not based on a finding of unfitness to become naturalized for any of those specified causes may not be invoked to negate acquisition of Philippine citizenship by a foreign wife of a

Philippine citizen under Section 15 of the Naturalization Law. (Inclusio unius est exclusio alterius)" (Op. No. 12, s. 1958 of Justice Undersec. Jesus G. Barrera.) "Regarding the steps that should be taken by an alien woman married to a Filipino citizen in order to acquire Philippine citizenship, the procedure followed in the Bureau of Immigration is as follows: The alien woman must file a petition for the cancellation of her alien certificate of registration alleging, among other things, that she is married to a Filipino citizen and that she is not disqualified from acquiring her husband's citizenship pursuant to section 4 of Commonwealth Act No. 473, as amended. Upon the filing of said petition, which should be accompanied or supported by the joint affidavit of the petitioner and her Filipino husband to the effect that the petitioner does not belong to any of the groups disqualified by the cited section from becoming naturalized Filipino citizen (please see attached CEB Form 1), the Bureau of Immigration conducts an investigation and thereafter promulgates its order or decision granting or denying the petition." (Op. No. 38, B. 1958 of Justice Sec. Jesus G. Barrera.) "This view finds support in the case of Ly Giok Ha et al., v. Galang et al. (G.R. No. L10760, promulgated May 17, 1957), where the Supreme Court, construing the abovequoted section in the Revised Naturalization Law, held that 'marriage to a male Filipino does not vest Philippine citizenship to his foreign wife, unless she 'herself may be lawfully naturalized,' and that 'this limitation of Section 15 excludes from the benefits of naturalization by marriage those disqualified from being naturalized as citizens of the Philippines under Section 4 of said Commonwealth Act No. 473.' In other words, disqualification for any of the causes enumerated in section 4 of the Act is the decisive factor that defeats the right of an alien woman married to a Filipino citizen to acquire Philippine citizenship." (Op. 57, s. 1958 of Justice Sec. Jesus G. Barrera.) "The contention is untenable. The doctrine enunciated in the Ly Giok Ha case is not a new one. In that case, the Supreme Court held that under paragraph 1 of Section 15 of Commonwealth Act No. 473, 'marriage to a male Filipino does not vest Philippine citizenship to his foreign wife unless she "herself may be lawfully naturalized"', and, quoting several earlier opinions of the Secretary of Justice, namely: No. 52, s. 1950; No. 168, s. 1940; No. 95, s. 1941; No. 63, s. 1948; No. 28, s. 1950, 'this limitation of section 15 excludes from the benefits of naturalization by marriage, those disqualified from being naturalized as citizens of the Philippines under section 4 of said Commonwealth Act No. 473." (Op. 134, B. 1962 of Justice Undersec. Magno S. Gatmaitan.) It was not until more than two years later that, in one respect, the above construction of the law was importantly modified by this Court in Lee Suan Ay,supra, in which the facts were as follows: "Upon expiration of the appellant Lee Suan Ay's authorized period of temporary stay in the Philippines (25 March 1955), on 26 March 1955 the Commissioner of Immigration asked the bondsman to present her to the Bureau of Immigration within 24 hours from receipt of notice, otherwise the bond will be confiscated (Annex 1). For failure of the bondsman to comply with the foregoing order, on 1 April 1955 the Commissioner of Immigration ordered the cash bond confiscated (Annex E). Therefore, there was an order issued by the Commissioner of Immigration confiscating or forfeiting the cash bond. Unlike in forfeiture of bail bonds in criminal proceedings, where the Court must enter an order forfeiting the bail bond and the bondsman must be given an opportunity to present his principal or give a satisfactory reason for his inability to do so, before final judgment may be entered against the bondsman, (section 15, Rule 110; U.S. v.

Bonoan, 22 Phil. 1.) in forfeiture of bonds posted for the temporary stay of an alien in the Philippines, no court proceeding is necessary. Once a breach of the terms and conditions of the undertaking in the bond is committed, the Commissioner of Immigration may, under the terms and conditions thereof, declare it forfeited in favor of the Government." (In the meanwhile, on April 1, 1955, Lee Suan Ay and Alberto Tan, a Filipino, were joined in marriage by the Justice of the Peace of Las Piñas, Rizal.) Mr. Justice Sabino Padilla speaking for a unanimous court which included Justices Concepcion and Reyes who had penned Ly Giok Ha and Ricardo Cua, ruled thus: "The fact that Lee Suan Ay (a Chinese) was married to a Filipino citizen does not relieve the bondsman from his liability on the bond. The marriage took place on 1 April 1955, and the violation of the terms and conditions of; the undertaking in the bond — failure to depart from the Philippines upon expiration of her authorized period of temporary stay in the Philippines (25 March 1955) and failure to report to the Commissioner of Immigration within 24 hours from receipt of notice — were committed before the marriage. Moreover, the marriage of a Filipino citizen to an alien does not automatically confer Philippine citizenship upon the latter. She must possesses the qualifications required by law to become a Filipino citizen by naturalization. ** There is no showing that the appellant Lee Suan Ay possesses all the qualifications and none of the disqualifications provided for by law to become a Filipino citizen by naturalization." Pertinently to be noted at once in this ruling, which, to be sure, is the one relied upon in the appealed decision now before Us, is the fact that the footnote of the statement therein that the alien wife "must possess the qualifications required by law to become a Filipino citizen by naturalization" makes reference to Section 15, Commonwealth Act 473 and precisely, also to Ly Giok Ha v. Galang, supra. As will be recalled, on the other hand, in the opinions of the Secretary of Justice explicitly adopted by the Court in Ly Giok Ha, among them, Opinion No. 176, Series of 1940, abovequoted, it was clearly held that "(I)n a previous opinion rendered for your Office, I stated that the clause 'who might herself be lawfully naturalized', should be construed as not requiring the woman to have the qualifications of residence, good character, etc., as in cases of naturalization by judicial proceedings, but merely that she is of the race by persons who may be naturalized." (Op. Na. 79, s. 1940)

Since Justice Padilla gave no reason at all for the obviously significant modification of the construction of the law, it could be said that there was need for clarification of the seemingly new posture of the Court. The occasion for such clarification should have been in Kua Suy, etc., et al. vs. The Commissioner of Immigration, G.R. No. L-13790, October 31, 1963, penned by Mr. Justice J.B.L. Reyes, who had rendered the opinion in Ricardo Cua, supra, which followed that in Ly Giok Ha, supra, but apparently seeing no immediate relevancy in the case on hand then of the particular point in issue now, since it was not squarely raised therein similarly as in Lee Suan Ay, hence, anything said on the said matter would at best be no more than obiter dictum, Justice Reyes limited himself to holding that "Under Section 15 of the Naturalization Act, the wife is deemed a citizen of the Philippines only if she 'might herself be lawfully naturalized,' so that the fact of marriage to a citizen, by itself alone, does not suffice to confer citizenship, as this Court has previously ruled in Ly Giok Ha v. Galang, 54 O.G. 356, and in Cua v. Board of Immigration Commissioners, 53 O.G. 8567; and there is here no evidence of record as to the qualifications or absence of disqualifications of appellee Kua Suy", without explaining the apparent departure already pointed out from Ly Giok Ha and Ricardo Cua. Even Justice Makalintal, who wrote a separate concurring and dissenting opinion merely lumped together Ly Giok Ha, Ricardo Cua and Lee Suan Ay and opined that both qualifications and non-

disqualifications have to be shown without elucidating on what seemed to be departure from the said first two decisions. It was only on November 30, 1963 that to Mr. Justice Roberto Regala fell the task of rationalizing the Court's position. In La San Tuang v. Galang, G.R. No. L-18775, November 30, 1963, 9 SCRA 638, the facts were simply these: 10 San Tuang, a Chinese woman, arrived in the Philippines on July 1, 1960 as a temporary visitor with authority to stay up to June 30, 1961. She married a Filipino on January 7, 1961, almost six months before the expiry date at her permit, and when she was refused to leave after her authority to stay had expired, she refused to do so, claiming she had become a Filipina by marriage, and to bolster her position, she submitted an affidavit stating explicitly that she does not possess any of the disqualifications enumerated in the Naturalization Law, Commonwealth Act 473. When the case reached the court, the trial judge held for the government that in addition to not having any of the disqualifications referred to, there was need that Lo San Tuang should have also possessed all the qualifications of residence, moral character, knowledge of a native principal dialect, etc., provided by the law. Recognizing that the issue squarely to be passed upon was whether or not the possession of all the qualifications were indeed needed to be shown apart from nondisqualification, Justice Regala held affirmatively for the Court, reasoning out thus: "It is to be noted that the petitioner has anchored her claim for citizenship on the basis of the decision laid down in the case of Leonard v. Grant, 5 Swy. 603, 5 F 11, where the Circuit Court of Oregon held that it was only necessary that the woman 'should be a person of the class or race permitted to be naturalized by existing laws, and that in respect of the qualifications arising out of her conduct or opinions, being the wife of a citizen, she is to be regarded as qualified for citizenship, and therefore considered a citizen.' (In explanation of its conclusion, the Court said: 'If, whenever during the life of the woman or afterwards, the question of her citizenship arises in a legal proceeding, the party asserting her citizenship by reason of her marriage with a citizen must not only prove such marriage, but also that the woman then possessed all the further qualifications necessary to her becoming naturalized under existing laws, the statute will be practically nugatory, if not a delusion and a snare. The proof of the facts may have existed at the time of the marriage, but years after, when a controversy arises upon the subject, it may be lost or difficult to find.') "In other words, all that she was required to prove was that she was a free white woman or a woman of African descent or nativity, in order to be deemed an American citizen, because, with respect to the rest of the qualifications on residence, moral character, etc., she was presumed to be qualified. "Like the law in the United States, our former Naturalization Law (Act No. 2927, as amended by Act No. 3448) specified the classes of persons who alone might become citizens of the Philippines, even as it provided who were disqualified. Thus, the pertinent provisions of that law provided: 'Section 1. Who may become Philippine citizens. — Philippine citizenship may be acquired by (a) natives of the Philippines who are not citizens thereof under the Jones Law; (b) natives of the Insular possessions of the United States; (c) citizens of the United States, or foreigners who under the laws of the United States may become citizens of said country if residing therein. 'Section 2. Who are disqualified. — The following cannot be naturalized as Philippine citizens: (a) Persons opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized government; (b) persons defending or teaching the necessity or propriety of violence, personal assault or assassination for the

success and predominance of their ideas; (c) polygamists or believers in the practice of polygamy; (d) persons convicted of crimes involving moral turpitude; (e) persons suffering from mental alienation or incurable contagious diseases; (f) citizens or subjects of nations with whom the United States and the Philippines are at war, during the period of such war. 'Section 3. Qualifications. — The persons comprised in subsection (a) of section one of this Act, in order to be able to acquire Philippine citizenship, must be not less than twenty-one years of age on the day of the hearing of their petition. 'The persons comprised in subsections (b) and (c) of said section one shall, in addition to being not less than twenty-one years of age on the day of the hearing of the petition, have all and each of the following qualifications: 'First. Residence in the Philippine Islands for a continuous period of not less than five years, except as provided in the next following section; 'Second. To have conducted themselves in a proper and irreproachable manner during the entire Period of their residence in the Philippine Islands, in their relation with the constituted government as well as with the community in which they are living; 'Third. To hold in the Philippine Islands real estate worth not less than one thousand pesos, Philippine currency, or have some known trade or profession; and 'Fourth. To speak and write English, Spanish, or some native tongue. 'In case the petitioner is a foreign subject, he shall, besides, declare in writing and under oath his intention of renouncing absolutely and perpetually all faith and allegiance to the foreign authority, state or sovereignty of which he was a native, citizen or subject.' "Applying the interpretation given by Leonard v. Grant, supra, to our law as it then stood, alien women married to citizens of the Philippines must, in order to be deemed citizens of the Philippines, be either (1) natives of the Philippines who were not citizens thereof under the Jones Law, or (2) natives of other Insular possessions of the United States, or (3) citizens of the United States or foreigners who under the laws of the United States might become citizens of that country if residing therein. With respect to the qualifications set forth in Section 3 of the former law, they were deemed to have the same for all intents and purposes. "But, with the approval of the Revised Naturalization Law (Commonwealth Act No. 473) on June 17, 1939, Congress has since discarded class or racial consideration from the qualifications of applicants for naturalization (according to its proponent, the purpose in eliminating this consideration was, first, to remove the features of the existing naturalization act which discriminated in favor of the Caucasian} and against Asiatics who are our neighbors, and are related to us by racial affinity and, second, to foster amity with all nations [Sinco, Phil. Political Law 502 — 11 ed.]), even as it retained in Section 15 the phrase in question. The result is that the phrase 'who might herself be lawfully naturalized' must be understood in the context in which it is now found, in a setting so different from that in which it was found by the Court in Leonard v. Grant. "The only logical deduction from the elimination of class or racial consideration is that, as the Solicitor General points out, the phrase 'who might herself be lawfully

naturalized' must now be understood as referring to those who under Section 2 of the law are qualified to become citizens of the Philippines. "There is simply no support for the view that the phrase 'who might herself be lawfully naturalized' must now be understood as requiring merely that the alien woman must not belong to the class of disqualified persons under Section 4 of the Revised Naturalization Law. Such a proposition misreads the ruling laid down in Leonard v. Grant. A person who is not disqualified is not necessarily qualified to become a citizen of the Philippines, because the law treats 'qualifications' and 'disqualifications' in separate sections. And then it must not be lost sight of that even under the interpretation given to the former law, it was to be understood that the alien woman was not disqualified under Section 2 of that law. Leonard v. Grant did not rule that it was enough if the alien woman does not belong to the class of disqualified persons in order that she may be deemed to follow the citizenship of her husband: What that case held was that the phrase 'who might herself be lawfully naturalized, merely means that she belongs to the class or race of persons qualified to become citizens by naturalization — the assumption being always that she is not otherwise disqualified.

"We therefore hold that under the first paragraph of Section 15 of the Naturalization Law, an alien woman, who is married to a citizen of the Philippines, acquires the citizenship of her husband only if she has all the qualifications and none of the disqualifications provided by law. Since there is no proof in this case that petitioner has all the qualifications and is not in any way disqualified, her marriage to a Filipino citizen does not automatically make her a Filipino citizen. Her affidavit to the effect that she is not in any way disqualified to become a citizen of this country was correctly disregarded by the trial court, the same being self-serving." Naturally, almost a month later in Sun Peck Yong V. Commissioner of Immigration, G.R. No L-20784, December 27, 1963, 9 SCRA 875, wherein the Secretary of Foreign Affairs reversed a previous resolution of the preceding administration to allow Sun Peck Yong and her minor son to await the taking of the oath of Filipino citizenship of her husband two years after the decision granting him nationalization and required her to leave and this order was contested in court, Justice Barrera held: "In the case of Lo San Tuang v. Commissioner of Immigration (G.R. No. L-18775, promulgated November 30, 1963; Kua Suy vs. Commissioner of Immigration, L-13790, promulgated October 31, 1963), we held that the fact that the husband became a naturalized citizen does not automatically make the wife a citizen of the Philippines. It must also be shown that she herself possesses all the qualifications, and none of the disqualifications, to become a citizen. In this case, there is no allegation, much less showing, that petitioner-wife is qualified to become a Filipino citizen herself. Furthermore, the fact that a decision was favorably made on the naturalization petition of her husband is no assurance that he (the husband) would become a citizen, as to make a basis for the extension of her temporary stay." On the same day, in Tong Siok Sy v. Vivo, G.R. No. L-21136, December 27, 1963, 9 SCRA 876, Justice Barrera reiterated the same ruling and citing particularly Lo San Tuang and Kua Suy, held that the marriage of Tong Siok Sy to a Filipino on November 12, 1960 at Taichung, Taiwan and her taking oath of Filipino citizenship before the Philippine Vice Consul at Taipeh, Taiwan on January 6, 1961 did not make her a Filipino citizen, since she came here only in 1961 and obviously, she had not had the necessary ten-year residence in the Philippines required by the law.

Such then was the status of the jurisprudential law on the matter under discussion when Justice Makalintal sought a reexamination thereof in Choy King Tee v. Galang, G.R. No. L-18351, March 26, 1965, 13 SCRA 402. Choy King Tee's husband was granted Philippine citizenship on January 13, 1959 and took the oath on January 31 of the same year, Choy King Tee first came to the Philippines in 1955 and kept commuting between Manila and Hongkong since then, her last visa before the case being due to expire on February 14, 1961. On January 27, 1961, her husband asked the Commissioner of Immigration to cancel her alien certificate of registration, as well as their child's, for the reason that they were Filipinos, and when the request was denied as to the wife, a mandamus was sought, which the trial court granted. Discussing anew the issue of the need for qualifications, Justice Makalintal not on]y reiterated the arguments of Justice Regala in Lo San Tuang but added further that the ruling is believed to be in line with the national policy of selective admission to Philippine citizenship. 7 No wonder, upon this authority, in Austria v. Conchu, G.R. No. L-20716, June 22, 1965, 14 SCRA 336, Justice J.P. Bengzon readily reversed the decision of the lower court granting the writs of mandamus and prohibition against the Commissioner of Immigration, considering that Austria's wife, while admitting she did not possess all the qualifications for naturalization, had submitted only an affidavit that she had none of the disqualifications therefor. So also did Justice Dizon similarly hold eight days later in Brito v. Commissioner, G.R. No. L-16829, June 30, 1965, 14 SCRA 539. Then came the second Ly Giok Ha case 8 wherein Justice J. B. L. Reyes took occasion to expand on the reasoning of Choy King Tee by illustrating with examples "the danger of relying exclusively on the absence of disqualifications, without taking into account the other affirmative requirements of the law." 9 Lastly, in Go Im Ty v. Republic, G.R. No. L-17919, decided on July 30, 1966, 10 Justice Zaldivar held for the Court that an alien woman who is widowed during the pendency of the naturalization proceedings of her husband, in order that she may be allowed to take the oath as Filipino, must, aside from proving compliance with the requirements of Republic Act 530, show that she possesses all the qualifications and does not suffer from any of the disqualifications under the Naturalization Law, citing in the process the decision to such effect discussed above, 1 1 even as he impliedly reversed pro tanto the ruling in Tan Lin v. Republic, G.R. No. L-13786, May 31, 1961, 2 SCRA 383. Accordingly, in Burca, Justice Sanchez premised his opinion on the assumption that the point now under discussion is settled law. In the case now at bar, the Court is again called upon to rule on the same issue. Under Section 15 of the Naturalization Law, Commonwealth Act 473, providing that: "SEC. 15. Effect of the naturalization on wife and children. — Any woman, who is now or may hereafter be married to a citizen of the Philippines, and who might herself be lawfully naturalized shall be deemed a citizen of the Philippines. "Minor children of persons naturalized under this law who have been born in the Philippines shall be considered citizens thereof. "A foreign-born minor child, if dwelling in the Philippines at the time of the naturalization of the parent, shall automatically become a Philippine citizen, and a foreign-born child, who is not in the Philippines at the time the parent is naturalized, shall be deemed a Philippine citizen only during his minority, unless he begins to reside permanently in the Philippines when still a minor, in which case, he will continue to be a Philippine citizen even after becoming of age. "A child born outside of the Philippines after the naturalization of his parent, shall be considered a Philippine citizen, unless within one year after reaching the age of

majority he fails to register himself as a Philippine citizen at the American Consulate of the country where he resides, and to take the necessary oath of allegiance. is it necessary, in order that an alien woman who marries a Filipino or who is married to a man who subsequently becomes a Filipino, may become a Filipino citizen herself, that, aside from not suffering from any of the disqualifications enumerated in the law, she must also possess all the qualifications required by said law? If nothing but the unbroken line from Lee Suan Ay to Go Im Ty, as recounted above, were to be considered, it is obvious that an affirmative answer to the question would be inevitable, specially, if it is noted that the present case was actually submitted for decision on January 21, 1964 yet, shortly after Lo San Tuang, Tong Siok Sy and Sun Peck Yong, all supra, and even before Choy King Tee, supra, were decided. There are other circumstances, however, which make it desirable, if not necessary, that the Court take up the matter anew. There has been a substantial change in the membership of the Court since Go Im Ty, and of those who were in the Court already when Burca was decided, two members, Justice Makalintal and Castro concurred only in the result, precisely, according to them, because they wanted to leave the point now under discussion open in so far as they are concerned. 12 Truth to tell, the views and arguments discussed at length with copious relevant authorities, in the motion for reconsideration as well as in the memorandum of the amici curiae 13 in the Burca case cannot just be taken lightly and summarily ignored, since they project in the most forceful manner, not only the legal and logical angles of the issue, but also the imperative practical aspects thereof in the light of the actual situation of the thousands of alien wives of Filipinos who have so long, even decades, considered themselves as Filipinas and have always lived and acted as such, officially or otherwise, relying on the long standing continuous recognition of their status as such by the administrative authorities in charge of the matter, as well as by the courts. Under these circumstances, and if only to afford the Court an opportunity to consider the views of the five justices who took no part in Ga Im Ty (including the writer of this opinion), the Court decided to further reexamine the matter. After all, the ruling first laid in Lee Suan Ay, and later in Lo San Tuang, Choy King Tee and the second (1966) Ly Giok Ha, did not categorically repudiate the opinions of the Secretary of Justice relied upon by the first (1959) Ly Giok Ha. Besides, some points brought to light during the deliberations in this case would seem to indicate that the premises of the later cases can still bear further consideration. Whether We like it or not, it is undeniably factual that the legal provision We are construing, Section 15, aforequoted, of the Naturalization Law has been taken directly, copied and adopted from its American counterpart. To be more accurate, said provision is nothing less than a reenactment of the American provision. A brief review of its history proves this beyond per adventure of doubt. The first Naturalization Law of the Philippines approved by the Philippine Legislature under American sovereignty was that of March 26, 1920, Act No. 2927. Before then, as a consequence of the Treaty of Paris, our citizenship laws were found only in the Organic Laws, the Philippine Bill of 1902, the Act of the United States Congress of March 23, 1912 and later the Jones Law of 1916. In fact, Act No. 2927 was enacted pursuant to express authority granted by the Jones Law. For obvious reasons, the Philippines gained autonomy on the subjects of citizenship and immigration only after the effectivity of the Philippine Independence Act. This made it practically impossible for our laws on said subject to have any perspective or orientation of our own; everything was American.

The Philippine Bill of 1902 provided pertinently: "SECTION 4. That all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the eleventh day of April, eighteen-hundred and ninetynine, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve

their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain signed at Paris December tenth, eighteen hundred and ninety-eight." This Section 4 of the Philippine Bill of 1902 was amended by Act of Congress of March 23, 1912, by adding a provision as follows: "Provided, That the Philippine Legislature is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of other insular possessions of the United States, and such other persons residing in the Philippine Islands who would become citizens of the United States, under the laws of the United States, if residing therein." The Jones Law reenacted these provisions substantially: "SECTION 2. That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris December tenth, eighteen hundred and ninety-eight and except such others as have since become citizens of some other country: Provided, That the Philippine Legislature, herein provided for, is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine Islands who are citizens of the United States under the laws of the United States if residing therein." For aught that appears, there was nothing in any of the said organic laws regarding the effect of marriage to a Filipino upon the nationality of an alien woman, albeit under the Spanish Civil Code provisions on citizenship, Articles 17 to 27, which were, however, abrogated upon the change of sovereignty, it was unquestionable that the citizenship of the wife always followed that of the husband. Not even Act 2927 contained any provision regarding the effect of naturalization of an alien upon the citizenship of his alien wife, nor of the marriage of such alien woman with a native born Filipino or one who had become a Filipino before the marriage, although Section 13 thereof provided thus: "SEC. 13. Right of widow and children of petitioners who have died. — In case a petitioner should die before the final decision has been rendered, his widow and minor children may continue the proceedings. The decision rendered in the case shall, so far as the widow and minor children are concerned, produce the same legal effect as if it had been rendered during the life of the petitioner." It was not until November 30, 1928, upon the approval of Act 3448, amending Act 2977, that the following provisions were added to the above Section 13: "SECTION 1. The following new sections are hereby inserted between sections thirteen and fourteen of Act Numbered Twenty-nine hundred and Twenty-seven: 'SEC. 13 (a). Any woman who is now or may hereafter be married to a citizen of the Philippine Islands and who might herself be lawfully naturalized, shall be deemed a citizen of the Philippine Islands. 'SEC. 13 (b). Children of persons who have been duly naturalized under this law, being under the age of twenty-one years at the time of the naturalization of

their parents, shall, if dwelling in the Philippine Islands, be considered citizens thereof. 'SEC. 13 (c). Children of persons naturalized under this law who have been born in the Philippine Islands after the naturalization of their parents shall be considered citizens thereof.' " When Commonwealth Act 473, the current naturalization law, was enacted on June 17, 1939, the above Section 13 became its Section 15 which has already been quoted earlier in this decision. As can be seen, Section 13(a) abovequoted was re-enacted practically word for word in the first paragraph of this Section 15 except for the change of Philippine Islands to Philippines. And it could not have been on any other basis than this legislative history of our naturalization law that each and everyone of the decisions of this Court from the first Ly Giok Ha to Go Im Ty, discussed above, were rendered. As stated earlier, in the opinion of Chief Justice Concepcion in the first Ly Giok Ha, it was quite clear that for an alien woman who marries a Filipino to become herself a Filipino citizen, there is no need for any naturalization proceeding because she becomes a Filipina ipso facto from the time of such marriage, provided she does not suffer any of the disqualifications enumerated in Section 4 of Commonwealth Act 473, with no mention being made of whether or not the qualifications enumerated in Section 2 thereof need be shown. It was only in Lee Suan Ay in 1959 that the possession of qualifications were specifically required, but it was not until 1963, in Lo San Tuang, that Justice Regala reasoned out why the possession of the qualifications provided by the law should also be shown to be possessed by the alien wife of a Filipino, for her to become a Filipina by marriage. As may be recalled, the basic argument advanced by Justice Regala was briefly as follows: That "like the law in the United States, our Naturalization Law specified the classes of persons who alone might become citizens, even as it provided who were disqualified," and inasmuch as Commonwealth Act 473, our Naturalization Law since 1939 did not reenact the section providing who might become citizens, allegedly in order to remove racial discrimination in favor of Caucasians and against Asiatics, "the only logical deduction . . . is that the phrase 'who might herself be lawfully naturalized' must now be understood as referring to those who under Section 2 of the law are qualified to become citizens of the Philippines" and "there is simply no support for the view that the phrase 'who might herself be lawfully naturalized' must now be understood as requiring merely that the alien woman must not belong to the class of disqualified persons under Section 4 of the Revised Naturalization Law." 14 A similar line of reasoning was followed in Choy King Tee, which for ready reference may be quoted: "The question has been settled by the uniform ruling of this Court in a number of cases. The alien wife of a Filipino citizen must first prove that she has all the qualifications required by Section 2 and none of the disqualifications enumerated in Section 4 of the Naturalization Law before she may he deemed a Philippine citizen (Lao Chay v. Galang, L-19977, Oct. 30, 1964, citing Lo San Tuang v. Galang, L-18775, Nov. 30, 1963; Sun Peck Yong v. Commissioner of Immigration, L-20784, December 27, 1963; Tong Siok Sy v. Vivo, L-21136, December 27, 1963). The writer of this opinion has submitted the question anew to the court for a possible reexamination of the said ruling in the light of the interpretation of a similar law in the United States after which Section 15 of our Naturalization Law was patterned. That law was section 2 of the Act of February 10, 1855 (Section 1994 of the Revised Statutes of the U.S.). The local law, Act No. 3448, was passed on November 30, 1928 as an amendment to the former Philippine Naturalization Law, Act No. 2927, which was approved on March 26, 1920. Under this Naturalization Law, acquisition of Philippine citizenship was limited to three classes of persons, (a) Natives of the Philippines who were not citizens thereof; (b) natives of the other insular possessions of the United States; and (c) citizens of the

United States, or foreigners who, under the laws of the United States, may become citizens of the latter country if residing therein. The reference in subdivision (c) to foreigners who may become American Citizens is restrictive in character, for only persons of certain specified races were qualified thereunder. In other words, in so far as racial restrictions were concerned there was at the time a similarity between the naturalization laws of the two countries, and hence there was reason to accord here persuasive force to the interpretation given in the United States to the statutory provision concerning the citizenship of alien women marrying American citizens. "This Court, however, believes that such reason has ceased to exist since the enactment of the Revised Naturalization Law (Commonwealth Act No. 473) on June 17, 1939. The racial restrictions have been eliminated in this Act, but the provision found in Act No. 3448 has been maintained. It is logical to presume that when Congress chose to retain the said provision — that to be deemed a Philippine citizen upon marriage the alien wife must be one 'who might herself be lawfully naturalized,' the reference is no longer to the class or race to which the woman belongs, for class or race has become immaterial, but to the qualifications and disqualifications for naturalization as enumerated in Sections 2 and 4 of the statute. Otherwise the requirement that the woman 'might herself be lawfully naturalized' would be meaningless surplusage, contrary to settled norms of statutory construction. "The rule laid down by this Court in this and in other cases heretofore decided is believed to be in line with the national policy of selective admission to Philippine citizenship, which after all is a privilege granted only to those who are found worthy thereof, and not indiscriminately to anybody at all on the basis alone of marriage to a man who is a citizen of the Philippines, irrespective of moral character, ideological beliefs, and identification with Filipino ideals, customs and traditions.

"Appellee here having failed to prove that she has all the qualifications for naturalization, even, indeed, that she has none of the disqualifications, she is not entitled to recognition as a Philippine citizen." In the second Ly Giok Ha, the Court further fortified the arguments in favor of the same conclusion thus: "On cross-examination, she (Ly Giok Ha) failed to establish that: (1) she has been residing in the Philippines for a continuous period of at least (10) years (p. 27, t.s.n., id.); (2) she has a lucrative trade, profession, or lawful occupation (p. 13. t.s.n., id.); and (3) she can speak and write English, or any of the principal Philippine languages (pp. 12, 13, t.s.n., id.) "While the appellant Immigration Commissioner contends that the words emphasized indicate that the present Naturalization Law requires that an alien woman who marries a Filipino husband must possess the qualifications prescribed by section 2 in addition to not being disqualified under any of the eight ('a' to 'h') subheadings of section 4 of Commonwealth Act No. 473, in order to claim our citizenship by marriage, both the appellee and the court below (in its second decision) sustain the view that all that the law demands is that the woman be not disqualified under section 4. "At the time the present case was remanded to the court of origin (1960) the question at issue could be regarded as not conclusively settled, there being only the concise pronouncement in Lee Suan Ay, et al. v. Galang, G. R. No. L-11855, Dec. 23, 1959, to the effect that:

'The marriage of a Filipino citizen to an alien does not automatically confer Philippine citizenship upon the latter. She must possess the qualifications required by law to become a Filipino citizen by naturalization.' "Since that time, however, a long line of decisions of this Court has firmly established the rule that the requirement of section 15 of Commonwealth Act 473 (the Naturalization Act), that an alien woman married to a citizen should be one who 'might herself be lawfully naturalized," means not only woman free from the disqualifications enumerated in section 4 of the Act but also one who possesses the qualifications prescribed by section 2 of Commonwealth Act 473 (San Tuan v. Galang, L-18775, Nov. 30, 1963; Sun Peck Yong v. Com. of Immigration, L-20784, Dec. 27, 1963; Tong Siok Sy v. Vivo, L-21136, Dec. 27, 1963; Austria v. Conchu, L-20716, June 22, 1965; Choy King Tee v. Galang, L-18351, March 26, 1965; Brito v. Com. of Immigration, L16829, June 30, 1965). "Reflection will reveal why this must be so. The qualifications prescribed under section 2 of the Naturalization Act, and the disqualifications enumerated in its section 4 are not mutually exclusive; and if all that were to be required is that the wife of a Filipino be not disqualified under section 4, the result might well be that citizenship would be conferred upon persons in violation of the policy of the statute. For example, section 4 disqualifies only — '(c) Polygamists or believers in the practice of polygamy; and '(d) Persons convicted of crimes involving moral turpitude,' so that a blackmailer, or a maintainer of gambling or bawdy houses, not previously convicted by a competent court would not be thereby disqualified; still, it is certain that the law did not intend such person to be admitted as a citizen in view of the requirement of section 2 that an applicant for citizenship 'must be of good moral character.' "Similarly, the citizen's wife might be a convinced believer in racial supremacy, in government by certain selected classes, in the right to vote exclusively by certain 'herrenvolk', and thus disbelieve in the principles underlying the Philippine Constitution; yet she would not be disqualified under section 4, as long as she is not 'opposed to organized government,' nor affiliated to groups 'upholding or teaching doctrines opposing all organized governments', nor 'defending or teaching the necessity or propriety of violence, personal assault or assassination for the success or predominance of their ideas.' Et sic de caeteris. "The foregoing instances should suffice to illustrate the danger of relying exclusively on the absence of disqualifications, without taking into account the other affirmative requirements of the law, which, in the case at bar, the appellee Ly Giok Ha admittedly does not possess. "As to the argument that the phrase 'might herself be lawfully naturalized' was derived from the U.S. Revised Statutes (section 1994) and should be given the same territorial and racial significance given to it by American courts, this Court has rejected the same in Lon San Tuang v. Galang, L-18775, November 30, 1963; and in Choy King Tee v. Galang, L-18351, March 26, 1965." It is difficult to minimize the persuasive force of the foregoing rationalizations, but a closer study thereof cannot but reveal certain relevant considerations which adversely affect the premises on which they are predicated, thus rendering the conclusions arrived thereby not entirely unassailable.

1. The main proposition, for instance, that in eliminating Section 1 of Act 2927 providing who are eligible for Philippine citizenship, the purpose ofCommonwealth Act 473, the Revised Naturalization Law, was to remove the racial requirements for naturalization, thereby opening the door of Filipino nationality to Asiatics instead of allowing the admission thereto of Caucasians only, suffers from lack of exact accuracy. It is important to note, to start with, that Commonwealth Act 473 did away with the whole Section 1 of Act 2927 which reads thus: "SECTION 1. Who may become Philippines citizens. — Philippine citizenship may be acquired by: (a) natives of the Philippines who are not citizens thereof under the Jones Law; (b) natives of the other Insular possessions of the United States; (c) citizens of the United States, or foreigners who under the laws of the United States may become citizens of said country if residing therein." and not only subdivision (c) thereof. Nowhere in this whole provision was there any mention of race or color of the persons who were then eligible for Philippine citizenship. What is more evident from said provision is that it reflected the inevitable subordination of our legislation during the preCommonwealth American regime to the understandable limitations flowing from our status as a territory of the United States by virtue of the Treaty of Paris. In fact, Section 1 of Act 2927 was precisely approved pursuant to express authority, without which it could not have been done, granted by an amendment to Section 4 of the Philippine Bill of 1902 introduced by the Act of the United States Congress of March 23, 1912 and which was reenacted as part of the Jones Law of 1916, the pertinent provisions of which have already been quoted earlier. In truth, therefore, it was because of the establishment of the Philippine Commonwealth and in the exercise of our legislative autonomy on citizenship matters under the Philippine Independence Act that Section 1 of Act 2927 was eliminated, 15 and not purposely to eliminate any racial discrimination contained in our Naturalization Law. The Philippine Legislature naturally wished to free our Naturalization Law from the impositions of American legislation. In other words, the fact that such discrimination was removed was one of the effects rather than the intended purpose of the amendment. 2. Again, the statement in Choy King Tee to the effect that "the reference in subdivision (c) (of Section 1 of Act 2927) to foreigners who may become American citizens is restrictive in character, for only persons of certain specified races were qualified thereunder" fails to consider the exact import of the said subdivision. Explicitly, the thrust of the said subdivision was to confine the grant under it of Philippine citizenship only to the three classes of persons therein mentioned, the third of which were citizens of the United States and, corollarily, persons who could be American citizens under her laws. The words used in the provision do not convey any idea of favoring aliens of any particular race or color and of excluding others, but more accurately, they refer to all the disqualifications of foreigners for American citizenship under the laws of the United States. The fact is that even as of 1906, or long before 1920, when our Act 2927 became a law, the naturalization laws of the United States already provided for the following disqualifications in the Act of the Congress of June 29, 1906: "SEC. 7. That no person who disbelieves in or who is opposed to organized government, or who is a member of or affiliated with any organization entertaining and teaching such disbelief in or opposition to organized government, or who advocates or teaches the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers, either of specific individuals or of officers generally, of the Government of the United States, or of any other organized government, because of his or their official character, or who is a polygamist, shall be naturalized or be made a citizen of the United States." and all these disqualified persons were, therefore, ineligible for Philippine citizenship under Section 1 of Act 2927 even if they happened to be Caucasians. More importantly, as a matter of fact, said American law, which was the first "Act to Establish a Bureau of Immigration and Naturalization and to Provide for a Uniform Rule for Naturalization of Aliens throughout the United

States" contained no racial disqualification requirement, except as to Chinese, the Act of May 6, 1882 not being among those expressly repealed by this law, hence it is clear that when Act 2927 was enacted, subdivision (c) of its Section 1 could not have had any connotation of racial exclusion necessarily, even if it were traced back to its origin in the Act of the United States Congress of 1912 already mentioned above. 16 Thus, it would seem that the nationalization in the quoted decisions predicated on the theory that the elimination of Section 1 of Act 2927 by Commonwealth Act 473 was purposely for no other end than the abolition of racial discrimination in our naturalization law has no clear factual basis. 17 3. In view of these considerations, there appears to be no cogent reason, why the construction adopted in the opinions of the Secretary of Justice referred to in the first Ly Giok Ha decision of the Chief Justice should not prevail. It is beyond dispute that the first paragraph of Section 15 ofCommonwealth Act 473 is a reenactment of Section 13(a) of Act 2927, as amended by Act 3448, and that the latter is nothing but an exact copy, deliberately made, of Section 1994 of the Revised Statutes of the United States as it stood before it repeal in 1922. 18 Before such repeal, the phrase "who might herself be lawfully naturalized" found in said Section 15 had a definite unmistakable construction uniformly followed in all courts of the United States that had occasion to apply the same and which, therefore, must be considered as if it were written in the statute itself. It is almost trite to say that when our legislators enacted said section, they knew of its unvarying construction in the United States and that, therefore, in adopting verbatim the American statute, they have in effect incorporated into the provision, as thus enacted, the construction given to it by the American courts as well as the Attorney General of the United States and all administrative authorities charged with the implementation of the naturalization and immigration laws of that country. (Lo Cham v. Ocampo, 77 Phil., 635 [1946]; Laxamana v. Baltazar, 92 Phil., 32 [1952]; Hartley v. Commissioner, 295 U.S. 216, 79 L. ed. 1399, 55 S Ct. 756 [1935]; Helvering v. Windmill, 305 U.S. 79, 83 L ed. 52, 59 S Ct. 45 [1938]; Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110, 83 L ed. 536, 59 S Ct. 423 [1939]. [p. 32, Memo of Amicus Curiae]). A fairly comprehensive summary of the said construction by the American courts and administrative authorities is contained in United Stats of America ex rel. Dora Sejnensky v. Robert E. Tod, Commissioner of Immigration, Appt., 285 Fed. 523, decided November 14, 1922, 26 A. L. R. 1316 as follows: "Section 1994 of the Revised Statutes (Comp. Stat. § 3948, 2 Fed. Sta. Anno. 2d ed. p. 117) provides as follows: 'Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen.' "Section 1944 of the Revised Stat. is said to originate in the Act of Congress of February 10, 1855 (10 Stat. at L. 604, chap. 71), which in its second section provided 'that any woman, who might lawfully be naturalized under the existing laws, married, or who shall be married to a citizen of the United States, shall be deemed and taken to be a citizen.' "And the American Statute of 1855 is substantially a copy of the earlier British Statute 7 & 8 Vict. chap. 66, . . . 16, 1844, which provided that 'any woman married, or who shall be married, to a natural-born subject or person naturalized, shall be deemed and taken to be herself naturalized, and have all the rights and privileges of a natural born subject.' "The Act of Congress of September 22, 1922 (42 Stat. at L. 1021, chap. 411, Comp. Stat. § 4358b, Fed. Stat. Anno. Supp. 1922, p. 255), being 'An Act Relative to the Naturalization and Citizenship of Married Women,' in § 2, provides 'that any woman

who marries a citizen of the United States after the passage of this Act, . . . shall not become a citizen of the United States by reason of such marriage . . .' "Section 6 of the act also provides 'that . . . 1994 of the Revised Statutes . . . are repealed.' "Section 6 also provides that 'such repeal shall not terminate citizenship acquired or retained under either of such sections, . . .' meaning § § 2 and 6. So that this Act of September 22, 1922, has no application to the facts of the present case, as the marriage of the relator took place prior to its passage. This case, therefore, depends upon the meaning to be attached to § 1994 of the Revised Statutes. "In 1868 the Supreme Court, in Kelly v. Owen, 7 Wall. 496, 498, 19 L. ed. 283, 284, construed this provision as found in the Act of 1855 as follows: 'The term, "who might lawfully be naturalized under the existing laws," only limits the application of the law to free white women. The previous Naturalization Act, existing at the time, only required that the person applying for its benefits should be "a free white person," and not an alien enemy.' "This construction limited the effect of the statute to those aliens who belonged to the class or race which might be lawfully naturalized, and did not refer to any of the other provisions of the naturalization laws as to residence or moral character, or to any of the provisions of the immigration laws relating to the exclusion or deportation of aliens. "In 1880, in Leonard v. Grant (C. C.) 5 Fed. 11, District Judge Deady also construed the Act of 1855, declaring that 'any woman who is now or may hereafter be married to a citizen of the United States, and might herself be lawfully naturalized, shall be deemed a citizen.' He held that 'upon the authorities, and the reason, if not the necessity, of the case,' the statute must be construed as in effect declaring that an alien woman, who is of the class or race that may be lawfully naturalized under the existing laws, and who marries a citizen of the United States, is such a citizen also, and it was not necessary that it should appear affirmatively that she possessed the other qualifications at the time of her marriage to entitle her to naturalization. "In 1882, the Act of 1855 came before Mr. Justice Harlan, sitting in the circuit court, in United States v. Kellar, 13 Fed. 82. An alien woman, a subject of Prussia came to the United States and married here a naturalized citizen. Mr. Justice Harlan, with the concurrence of Judge Treat, held that upon her marriage she became ipso facto a citizen of the United States as fully as if she had complied with all of the provisions of the statutes upon the subject of naturalization. He added: 'There can be no doubt of this, in view of the decision of the Supreme Court of the United States in Kelly v. Owen, 7 Wall. 496, 19 L. ed. 283.' The alien 'belonged to the class of persons' who might be lawfully naturalized. "In 1904, in Hopkins v. Fachant, 65 C. C. A. 1, 130 Fed. 839, an alien woman came to the United States from France and entered the country contrary to the immigration laws. The immigration authorities took her into custody at the port of New York, with the view of deporting her. She applied for her release under a writ of habeas corpus, and pending the disposition of the matter she married a naturalized American citizen. The circuit court of appeals for the ninth circuit held, affirming the court below, that she was entitled to be discharged from custody. The court declared: 'The rule is well settled that her marriage to a naturalized citizen of the United States entitled her to be discharged. The status of the wife follows that of her husband, . . . and by virtue of her marriage her husband's domicil became her domicil.'

"In 1908, the circuit court for the district of Rhode Island in Re Rustigian, 165 Fed. 980, had before it the application of a husband for his final decree of naturalization. It appeared that at that time his wife was held by the immigration authorities at New York on the ground that she was afflicted with a dangerous and contagious disease. Counsel on both sides agreed that the effect of the husband's naturalization would be to confer citizenship upon the wife. In view of that contingency District Judge Brown declined to pass upon the husband's application for naturalization, and thought it best to wait until it was determined whether the wife's disease was curable. He placed his failure to act on the express ground that the effect of naturalizing the husband might naturalize her. At the same time he expressed his opinion that the husband's naturalization would not effect her naturalization, as she was not one who could become lawfully naturalized. 'Her own capacity (to become naturalized),' the court stated, 'is a prerequisite to her attaining citizenship. If herself lacking in that capacity, the married status cannot confer it upon her.' Nothing, however, was actually decided in that case, and the views expressed therein are really nothing more than mere dicta. But, if they can be regarded as something more than that, we find ourselves, with all due respect for the learned judge, unable to accept them. "In 1909, in United States ex rel. Nicola v. Williams, 173 Fed, 626, District Judge Learned Hand held that an alien woman, a subject of the Turkish Empire, who married an American citizen while visiting Turkey, and then came to the United States, could not be excluded, although she had, at the time of her entry, a disease which under the immigration laws would have been sufficient ground for her exclusion, if she had not had the status of a citizen. The case was brought into this court on appeal, and in 1911 was affirmed, in 106 C. C. A. 464, 184 Fed. 322. In that case, however at the time the relators married, they might have been lawfully naturalized, and we said: 'Even if we assume the contention of the district attorney to be correct that marriage will not make a citizen of a woman who would be excluded under our immigration laws, it does not affect these relators.' "We held that, being citizens, they could not be excluded as aliens; and it was also said to be inconsistent with the policy of our law that the husband should be a citizen and the wife an alien. The distinction between that case and the one now before the court is that, in the former case, the marriage took place before any order of exclusion had been made, while in this the marriage was celebrated after such an order was made. But such an order is a mere administrative provision, and has not the force of a judgment of a court, and works no estoppel. The administrative order is based on the circumstances that existed at the time the order of exclusion was made. If the circumstances change prior to the order being carried into effect, it cannot be executed. For example, if an order of exclusion should be based on the ground that the alien was at the time afflicted with a contagious disease, and it should be made satisfactorily to appear, prior to actual deportation, that the alien had entirely recovered from the disease, we think it plain that the order could not be carried into effect. So, in this case, if, after the making of the order of exclusion and while she is permitted temporarily to remain, she in good faith marries an American citizen, we cannot doubt the validity of her marriage, and that she thereby acquired, under international law and under § 1994 of the Revised Statutes, American citizenship, and ceased to be an alien. There upon, the immigration authorities lost their jurisdiction over her, as that jurisdiction applies only to aliens, and not to citizens.

"In 1910, District Judge Dodge, in Ex parte Kaprielian, 188 Fed. 694, sustained the right of the officials to deport a woman under the following circumstances: She entered

this country in July, 1910, being an alien and having been born in Turkey. She was taken into custody by the immigration authorities in the following September, and in October a warrant for her deportation was issued. Pending hearings as to the validity of that order, she was paroled in the custody of her counsel. The ground alleged for her deportation was that she was afflicted with a dangerous and contagious disease at the time of her entry. One of the reasons assigned to defeat deportation was that the woman had married a citizen of the United States pending the proceedings for her deportation. Judge Dodge declared himself unable to believe that a marriage under such circumstances 'is capable of having the effect claimed, in view of the facts shown.' He held that it was no part of the intended policy of § 1994 to annul or override the immigration laws, so as to authorize the admission into the country of the wife of a naturalized alien not otherwise entitled to enter, and that an alien woman, who is of a class of persons excluded by law from admission to the United States does not come within the provisions of that section. The court relied wholly upon the dicta contained in the Rustigian Case. No other authorities were cited. "In 1914, District Judge Neterer, in Ex parte Grayson, 215 Fed. 449, construed § 1994 and held that where, pending proceedings to deport an alien native of France as an alien prostitute, she was married to a citizen of the United States, she thereby became a citizen, and was not subject to deportation until her citizenship was revoked by due process of law. It was his opinion that if, as was contended, her marriage was conceived in fraud, and was entered into for the purpose of evading the immigration laws and preventing her deportation, such fact should be established in a court of competent jurisdiction in an action commenced for the purpose. The case was appealed and the appeal was dismissed. 134 C. C. A. 666, 219 Fed. 1022. "It is interesting also to observe the construction placed upon the language of the statute by the Department of Justice. In 1874, Attorney General Williams, 14 Ops. Atty. Gen. 402, passing upon the Act of February 10, 1855, held that residence within the United States for the period required by the naturalization laws was not necessary in order to constitute an alien woman a citizen, she having married a citizen of the United States abroad, although she never resided in the United States, she and her husband having continued to reside abroad after the marriage. "In 1909, a similar construction was given to the Immigration Act of May 5, 1907, in an opinion rendered by Attorney General Wickersham. It appeared an unmarried woman, twenty-eight years of age and a native of Belgium, arrived in New York and went at once to a town in Nebraska, where she continued to reside. About fifteen months after her arrival she was taken before a United States commissioner by way of instituting proceedings under the Immigration Act (34 Stat. at L. 898, chap. 1134, Comp. Stat. § 4242, 3 Fed. Stat. Anno. 2d ed. p. 637) for her deportation, on the ground that she had entered this country for the purpose of prostitution, and had been found an inmate of a house of prostitution and practicing the same within three years after landing. It appeared, however, that after she was taken before the United States commissioner, but prior to her arrest under a warrant by the Department of Justice, she was lawfully married to a native-born citizen of the United States. The woman professed at the time of her marriage an intention to abandon her previous mode of life and to remove with her husband to his home in Pennsylvania. He knew what her mode of life had been, but professed to believe in her good intentions. The question was raised as to the right to deport her, the claim being advance that by her marriage she had become an American citizen and therefore could not be deported. The Attorney General ruled against the right to deport her as she had become an American citizen. He held that the words, 'who might herself be lawfully naturalized,' refer to a class or race who

might be lawfully naturalized, and that compliance with the other conditions of the naturalization laws was not required. 27 Ops. Atty. Gen. 507. "Before concluding this opinion, we may add that it has not escaped our observation that Congress, in enacting the Immigration Act of 1917, co as to provide, in § 19, 'that the marriage to an American citizen of a female of the sexually immoral classes . . . shall not invest such female with United States citizenship if the marriage of such alien female shall be solemnized after her arrest or after the commission of acts which make her liable to deportation under this act.' "Two conclusions seem irresistibly to follow from the above change in the law: "(1) Congress deemed legislation essential to prevent women of the immoral class avoiding deportation through the device of marrying an American citizen. "(2) If Congress intended that the marriage of an American citizen with an alien woman of any other of the excluded classes, either before or after her detention should not confer upon her American citizenship, thereby entitling her to enter the country, its intention would have been expressed, and § 19 would not have been confined solely to women of the immoral class." Indeed, We have examined all the leading American decisions on the, subject and We have found no warrant for the proposition that the phrase "who might herself be lawfully naturalized" in Section 1994 of the Revised Status was meant solely as a racial bar, even if loose statements in some decisions and other treaties and other writings on the subject would seem to give such impression. The case of Kelly v. Owen, supra, which appears to be the most cited among the first of these decisions 19 simply held: "As we construe this Act, it confers the privileges of citizenship upon women married to citizens of the United States, if they are of the class of persons for whose naturalization the previous Acts of Congress provide. The terms 'married' or 'who shall be married,' do not refer, in our judgment, to the time when the ceremony of marriage is celebrated, but to a state of marriage. They mean that, whenever a woman, who under previous Acts might be naturalized, is in a state of marriage to a citizen, whether his citizenship existed at the passage of the Act or subsequently, or before or after the marriage, she becomes, by that fact, a citizen also. His citizenship, whenever it exists, confers, under the Act, citizenship upon her. The construction which would restrict the Act to women whose husbands, at the time of marriage, are citizens, would exclude far the greater number, for whose benefit, as we think, the Act was intended. Its object, in our opinion, was to allow her citizenship to follow that of her husband, without the necessity of any application for naturalization on her part; and, if this was the object, there is no reason for the restriction suggested. "The terms, 'who might lawfully be naturalized under the existing laws,' only limit the application of the law to free white women. The previous Naturalization Act, existing at the time only required that the person applying for its benefits should be 'a free white person,' and not an alien enemy. Act of April 14th, 1802, 2 Stat. at L. 153. "A similar construction was given to the Act by the Court of Appeals of New York, in Burton v. Burton, 40 N. Y. 373; and is the one which gives the widest extension to its provisions" Note that while the court did say that "the terms, 'who might lawfully be naturalized under existing laws' only limit the application to free white women" 20 it hastened to add that "the previous Naturalization Act, existing at the time, . . . required that the person applying for its benefits should be (not only) a 'free white person' (but also) . . . not an alien enemy." This is simply because under the

Naturalization Law of the United States at the time the case was decided, the disqualification of enemy aliens had already been removed by the Act of July 30, 1813, as may be seen in the corresponding footnote hereof anon. In other words, if in the case of Kelly v. Owen only the race requirement was mentioned, the reason was that there was no other non-racial requirement or no more alien-enemy disqualification at the time; and this is demonstrated by the fact that the court took care to make it clear that under the previous naturalization law, there was also such requirement in addition to race. This is important, since as stated in re Rustigian, 165 Fed. Rep. 980, "The expression used by Mr. Justice Field, (in Kelly v. Owen) the terms 'who might lawfully be naturalized under existing laws' only limit the application of the law to free white women, must be interpreted in the application to the special facts and to the incapacities under the then existing laws," (at p. 982) meaning that whether or not an alien wife marrying a citizen would be a citizen was dependent, not only on her race and nothing more necessarily, but on whether or not there were other disqualifications under the law in force at the time of her marriage or the naturalization of her husband. 4. As already stated, in Lo San Tuang, Choy King Tee and the second Ly Giok Ha, the Court drew the inference that because Section 1 of Act 2927 was eliminated by Commonwealth Act 473, it. follows that in place of the said eliminated section, particularly its subdivision (c), being the criterion of whether or not an alien wife "may be lawfully naturalized," what should be required is not only that she must not be disqualified under Section 4 but that she must also possess the qualifications enumerated in Section 2, such as those of age, residence, good moral character, adherence to the underlying principles of the Philippine Constitution, irreproachable conduct, lucrative employment or ownership of real estate, capacity to speak and write English or Spanish and one of the principal local languages, education of children in certain schools, etc., thereby implying that, in effect, said Section 2 has been purposely intended to take the place of Section 1 of Act 2927. Upon further consideration of the proper premises, We have come to the conclusion that such inference is not sufficiently justified.

To begin with, nothing extant in the legislative history, which We have already examined above of the mentioned provisions has been shown or can be shown to indicate that such was the clear intent of the legislature. Rather, what is definite is that Section 15 an exact copy of Section 1994 of the Revised Statutes of the United States, which, at the time of the approval of Commonwealth Act 473 had already a settled construction by American courts and administrative authorities. Secondly, as may be gleaned from the summary of pertinent American decisions quoted above, there can be no doubt that in the construction of the identically worded provision in the Revised Statutes of the United States, (Section 1994, which was taken from the Act of February 10, 1855) all authorities in the United States are unanimously agreed that the qualifications of residence, good moral character, adherence to the Constitution, etc. are not supposed to be considered, and that the only eligibility to be taken into account is that of the race or class to which the subject belongs, the conceptual scope of which, We have just discussed. 21 In the very case of Leonard v. Grant, supra, discussed by Justice Regala in Lo San Tuang, the explanation for such posture of the American authorities was made thus: "The phrase, 'shall be deemed a citizen,' in section 1994 Rev. St., or as it was in the Act of 1855, supra, 'shall be deemed and taken to be a citizen,' while it may imply that the person to whom it relates has not actually become a citizen by ordinary means or in the usual way, as by the judgment of a competent court, upon a proper application and proof, yet it does not follow that such person is on that account practically any the less a citizen. The word 'deemed' is the equivalent of 'considered' or 'judged'; and, therefore, whatever an act of Congress requires to be 'deemed' or 'taken' as true of any person or thing, must, in law, he considered as having been duly adjudged or established concerning such person or thing, and have force and effect accordingly.

When, therefore, Congress declares that an alien woman shall, under certain circumstances, be 'deemed' an American citizen, the effect when the contingency occurs, is equivalent to her being naturalized directly by an act of Congress, or in the usual mode thereby prescribed." Unless We disregard now the long settled familiar rule of statutory construction that in a situation like this wherein our legislature has copied an American statute word for word, it is understood that the construction already given to such statute before its being copied constitute part of our own law, there seems to be no reason how We can give a different connotation or meaning to the provision in question. At least, We have already seen that the views sustaining the contrary conclusion appear to be based on inaccurate factual premises related to the real legislative background of the framing of our naturalization law in its present form. Thirdly, the idea of equating the qualifications enumerated in Section 2 of Commonwealth Act 473 with the eligibility requirements of Section 1 of Act 2927 cannot bear close scrutiny from any point of view. There is no question that Section 2 of Commonwealth Act 473 is more or less substantially the same as Section 3 of Act 2927. In other words, Section 1 of Act 2927 co-existed already with practically the same provision as Section 2 of Commonwealth Act 473. If it were true that the phrase "who may be lawfully naturalized" in Section 13(a) of Act 2927, as amended by Act 3448, referred to the so called racial requirement in Section 1 of the same Act, without regard to the provisions of Section 3 thereof, how could the elimination of Section 1 have the effect of shifting the reference to Section 3, when precisely, according to the American jurisprudence, which was prevailing at the time Commonwealth Act 473 was approved, such qualifications as were embodied in said Section 3, which had their counterpart in the corresponding American statutes, are not supposed to be taken into account and that what should be considered only are the requirements similar to those provided for in said Section 1 together with the disqualifications enumerated in Section 4? Fourthly, it is difficult to conceive that the phrase "who might be lawfully naturalized" in Section 15 could have been intended to convey a meaning different than that given to it by the American courts and administrative authorities. As already stated, Act 3448 which contained said phrase and from which it was taken by Commonwealth Act 473, was enacted in 1928. By that time, Section 1994 of the Revised Statutes of the United States was no longer in force because it had been repealed expressly the Act of September 22, 1922 which did away with the automatic naturalization of alien wives of American citizens and required, instead, that they submit to regular naturalization proceedings, albeit under more liberal terms than those of other applicants. In other words, when our legislature adopted the phrase in question, which, as already demonstrated, had a definite construction in American law, the Americans had already abandoned said phraseology in favor of a categorical compulsion for alien wives to be naturalized judicially. Simple logic would seem to dictate that, since our lawmakers, at the time of the approval of Act 3448, had two choices, one to adopt the phraseology of Section 1994 with its settled construction and the other to follow the new posture of the Americans of requiring judicial naturalization, and it appears that they have opted for the first, We have no alternative but to conclude that our law still follows the old or previous American law on the subject. Indeed, when Commonwealth Act 473 was approved in 1939, the Philippine Legislature, already autonomous then from the American Congress, had a clearer chance to disregard the old American law and make one of our own, or, at least, follow the trend of the Act of the U.S. Congress of 1922, but still, our legislators chose to maintain the language of the old law. What then is significantly important is not that the legislature maintained said phraseology after Section 1 of Act 2927 was eliminated, but that it continued insisting on using it even after the Americans had amended their law in order to provide for what is now contended to be the construction that should be given to the phrase in question. Stated differently, had our legislature adopted a phrase from an American statute before the American courts had given it a construction which was acquiesced to by those given upon to apply the same, it would be possible for Us to adopt a construction here different from that of the Americans, but as things stand, the fact is that our legislature borrowed the phrase when

there was already a settled construction thereof, and what is more, it appears that our legislators even ignored the modification of the American law and persisted in maintaining the old phraseology. Under these circumstances, it would be in defiance of reason and the principles of Statutory construction to say that Section 15 has a nationalistic and selective orientation and that it should be construed independently of the previous American posture because of the difference of circumstances here and in the United States. It is always safe to say that in the construction of a statute, We cannot fall on possible judicial fiat or perspective when the demonstrated legislative point of view seems to indicate otherwise. 5. Viewing the matter from another angle, there is need to emphasize that in reality and in effect, the so-called racial requirements, whether under the American laws or the Philippine laws, have hardly been considered as qualifications in the same sense as those enumerated in Section 3 of Act 2927 and later in Section 2 of Commonwealth Act 473. More accurately, they have always been considered as disqualifications, in the sense that those who did not possess them were the ones who could not "be lawfully naturalized," just as if they were suffering from any of the disqualifications under Section 2 of Act 2927 and later those under Section 4 of Commonwealth Act 473, which, incidentally, are practically identical to those in the former law, except those in paragraphs (f) and (h) of the latter. 22 Indeed, such is the clear impression anyone will surely get after going over all the American decisions and opinions quoted and/or cited in the latest USCA (1970), Title 8, section 1430, pp. 598602, and the first decisions of this Court on the matter, Ly Giok Ha (1959) and Ricardo Cua, citing with approval the opinions of the Secretary of Justice. 23 Such being the case, that is, that the socalled racial requirements were always treated as disqualifications in the same light as the other disqualifications under the law, why should their elimination not be viewed or understood as a subtraction from or a lessening of the disqualifications? Why should such elimination have instead the meaning that what were previously considered as irrelevant qualifications have become disqualifications, as seems to be the import of the holding in Choy King Tee to the effect that the retention in Section 15 of Commonwealth Act 473 of the same language of what used to be Section 13 (a) of Act 2927 (as amended by Act 3448), notwithstanding the elimination of Section 1 of the latter, necessarily indicates that the legislature had in mind making the phrase in question "who may be lawfully naturalized" refer no longer to any racial disqualification but to the qualification under Section 2 of Commonwealth Act 473? Otherwise stated, under Act 2927, there were two groups of persons that could not be naturalized, namely, those falling under Section 1 and those falling under Section 2, and surely, the elimination of one group, i.e. those belonging to Section 1, could not have had, by any process of reasoning, the effect of increasing, rather than decreasing the disqualifications that used to be before such elimination. We cannot see by what alchemy of logic such elimination could have converted qualifications into disqualifications, specially in the light of the fact that, after all, these are disqualifications clearly set out as such in the law distinctly and separately from qualifications and, as already demonstrated, in American jurisprudence, qualifications had never been considered to be of any relevance in determining "who might be lawfully naturalized," as such phrase is used in the statute governing the status of alien wives of American citizens, and our law on the matter was merely copied verbatim from the American statutes.

6. In addition to these arguments based on the applicable legal provisions and judicial opinions, whether here or in the United States, there are practical considerations that militate towards the same conclusions. As aptly stated in the motion for reconsideration of counsel for petitioner-appellee dated February 23, 1967, filed in the case of Zita Ngo Burca v. Republic, supra: "Unreasonableness of requiring alien wife to prove 'qualifications — "There is one practical consideration that strongly militates against a construction that Section 15 of the law requires that an alien wife of a Filipino must affirmatively prove that she possesses the qualifications prescribed under Section 2, before she may be

deemed a citizen. Such condition, if imposed upon an alien wife, becomes unreasonably onerous and compliance therewith manifestly difficult. The unreasonableness of such requirement is shown by the following: "1. One of the qualifications required of an applicant for naturalization under Section 2 of the law is that the applicant 'must have resided in the Philippines for a continuous period of not less than ten years.' If this requirement is applied to an alien wife married to a Filipino citizen, this means that for a period of ten years at least, she cannot hope to acquire the citizenship of her husband. If the wife happens to be a citizen of a country whose law declares that upon her marriage to a foreigner she automatically loses her citizenship and acquires the citizenship of her husband, this could mean that for a period of ten years at least, she would be stateless. And even after having acquired continuous residence in the Philippines for ten years, there is no guarantee that her petition for naturalization will be granted, in which case she would remain stateless for an indefinite period of time. "2. Section 2 of the law likewise requires of the applicant for naturalization that he 'must own real estate in the Philippines worth not less than five thousand pesos, Philippine currency, or must have some known lucrative trade, profession, or lawful occupation.' Considering the constitutional prohibition against acquisition by an alien of real estate except in cases of hereditary succession (Art. XIII, Sec. 5, Constitution), an alien wife desiring to acquire the citizenship of her husband must have to prove that she has a lucrative income derived from a lawful trade, profession or occupation. The income requirement has been interpreted to mean that the petitioner herself must be the one to possess the said income. (Uy v. Republic, L-19578, Oct. 27, 1964; Tanpa Ong vs. Republic, L-20605, June 30, 1965; Li Tong Pek v. Republic, L-20912, November 29, 1965). In other words, the wife must prove that she has a lucrative income derived from sources other than her husband's trade, profession or calling. It is of common knowledge, and judicial notice may be taken of the fact that most wives in the Philippines do not have gainful occupations of their own. Indeed, Philippine law, recognizing the dependence of the wife upon the husband, imposes upon the latter the duty of supporting the former. (Art. 291, Civil Code). It should be borne in mind that universally, it is an accepted concept that when a woman marries, her primary duty is to be a wife, mother and housekeeper. If an alien wife is not to be remiss in this duty, how can she hope to acquire a lucrative income of her own to qualify her for citizenship? "3. Under Section 2 of the law, the applicant for naturalization 'must have enrolled his minor children of school age, in any of the public schools or private schools recognized by the Office of the Private Education of the Philippines, where Philippine history, government and civics are taught or prescribed as part of the school curriculum during the entire period of residence in the Philippines required of him prior to the hearing of his petition for naturalization as Philippine citizen.' If an alien woman has minor children by a previous marriage to another alien before she marries a Filipino, and such minor children had not been enrolled in Philippine schools during her period of residence in the country, she cannot qualify for naturalization under the interpretation of this Court. The reason behind the requirement that children should be enrolled in recognized educational institutions is that they follow the citizenship of their father. (Chan Ho Lay v. Republic, L-5666, March 30, 1954; Tan Hi v. Republic,

88 Phil. 117 [1951]; Hao Lian Chu v. Republic, 87 Phil. 668 [950]; Yap Chin v. Republic, L-4177, May 29, 1953; Lim Lian Hong v. Republic, L-3575, Dec. 26, 1950). Considering that said minor children by her first husband generally follow the citizenship of their alien father, the basis for such requirement as applied to her does not exist. Cessante ratione legis cessat ipsa lex. "4. Under Section 3 of the law, the 10-year continuous residence prescribed by Section 2 'shall be understood as reduced to five years for any petitioner (who is) married to a Filipino woman.' It is absurd that an alien male married to a Filipino wife should be required to reside only for five years in the Philippines to qualify for citizenship, whereas an alien woman married to a Filipino husband must reside for ten years. "Thus under the interpretation given by this Court, it is more difficult for an alien wife related by marriage to a Filipino citizen to become such citizen, than for a foreigner who is not so related. And yet, it seems more than clear that the general purpose of the first paragraph of Section 15 was obviously to accord to an alien woman, by reason of her marriage to a Filipino, a privilege not similarly granted to other aliens. It will be recalled that prior to the enactment of Act No. 3448 in 1928, amending Act No. 2927 (the old Naturalization Law), there was no law granting any special privilege to alien wives of Filipinos. They were treated as any other foreigner. It was precisely to remedy this situation that the Philippine legislature enacted Act No. 3448. On this point, the observation made by the Secretary of Justice in 1941 is enlightening: 'It is true that under Article 22 of the (Spanish) Civil Code, the wife follows the nationality of the husband; but the Department of State of the United States on October 31, 1921, ruled that the alien wife of a Filipino citizen is not a Filipino citizen, pointing out that our Supreme Court in the leading case of Roa v. Collector of Customs (23 Phil. 315) held that Articles 17 to 27 of the Civil Code being political have been abrogated upon the cession of the Philippine Islands to the United States. Accordingly, the stand taken by the Attorney-General prior to the enactment of Act No. 3448, was that marriage of alien women to Philippine citizens did not make the former citizens of this country.' (Op. Atty. Gen., March 16, 1928). 'To remedy this anomalous condition, Act No. 5448 was enacted in 1928 adding section 13(a) to Act No. 2997 which provides that "any woman who is now or may hereafter be married to a citizen of the Philippine Islands, and who might herself be lawfully naturalized, shall be deemed a citizen of the Philippine Islands.' (Op. No. 22, s. 1941; emphasis ours) "If Section 15 of the Revised Naturalization Law were to be interpreted, as this Court did, in such a way as to require that the alien wife must prove the qualifications prescribed in Section 2, the privilege granted to alien wives would become illusory. It is submitted that such a construction, being contrary to the manifested object of the statute, must be rejected. 'A statute is to be construed with reference to its manifest object, and if the language is susceptible of two constructions, one which will carry out and the other defeat such manifest object, it should receive the former construction.' (In re National Guard, 71 Vt. 493, 45 A. 1051; Singer v. United States, 323 U.S. 333, 89 L. ed. 285. See also, U.S. v. Navarro, 19 Phil. 134 [1911]; U. S. v. Toribio, 15 Phil. 85 [1910]).

'. . . A construction which will cause objectionable results should be avoided and the court will, if possible, place on the statute a construction which will not result in injustice, and in accordance with the decisions construing statutes, a construction which will result in oppression, hardship, or inconveniences will also be avoided, as will a construction which will prejudice public interest, or construction resulting in unreasonableness, as well as a construction which will result in absurd consequences.' 'So a construction should, if possible, be avoided if the result would be an apparent inconsistency in legislative intent, as has been determined by the judicial decisions, or which would result in futility, redundancy, or a conclusion not contemplated by the legislature; and the court should adopt that construction which will be the least likely to produce mischief. Unless plainly shown to have been the intention of the legislature, an interpretation which would render the requirements of the statute uncertain and vague is to be avoided, and the court will not ascribe to the legislature an intent to confer an illusory right . . .' (82 C.J.S., Statutes, sec. 326, pp. 623-632)." 7. In Choy King Tee and the second Ly Giok Ha, emphasis was laid on the need for aligning the construction of Section 15 with "the national policy of selective admission to Philippine citizenship." But the question may be asked, is it reasonable to suppose that in the pursuit of such policy, the legislature contemplated to make it more difficult, if not practically impossible in some instances, for an alien woman marrying a Filipino to become a Filipina than any ordinary applicant for naturalization, as has just been demonstrated above? It seems but natural and logical to assume that Section 15 was intended to extend special treatment to alien women who by marrying a Filipino irrevocably deliver themselves, their possessions, their fate and fortunes and all that marriage implies to a citizen of this country, "for better or for worse." Perhaps there can and will be cases wherein the personal conveniences and benefits arising from Philippine citizenship may motivate such marriage, but must the minority, as such cases are bound to be, serve as the criterion for the construction of law? Moreover, it is not farfetched to believe that in joining a Filipino family, the alien woman is somehow disposed to assimilate the customs, beliefs and ideals of Filipinos among whom, after all, she has to live and associate, but surely, no one should expect her to do so even before marriage. Besides, it may be considered that in reality the extension of citizenship to her is made by the law not so much for her sake as for the husband. Indeed, We find the following observations anent the national policy rationalization in Choy King Tee and Ly Giok Ha (the second) to be quite persuasive:

"We respectfully suggest that this articulation of the national policy begs the question. The avowed policy of 'selective admission' more particularly refers to a case where citizenship is sought to be acquired in a judicial proceeding for naturalization. In such a case, the courts should no doubt apply the national policy of selecting only those who are worthy to become citizens. There is here a choice between accepting or rejecting the application for citizenship. But this policy finds no application in cases where citizenship is conferred by operation of law. In such cases, the courts have no choice to accept or reject. If the individual claiming citizenship by operation of law proves in legal proceedings that he satisfies the statutory requirements, the courts cannot do otherwise than to declare that he is a citizen of the Philippines. Thus, an individual who is able to prove that his father is a Philippine citizen, is a citizen of the Philippines, 'irrespective of his moral character, ideological beliefs, and identification with Filipino ideals, customs, and traditions.' A minor child of a person naturalized under the law, who is able to prove the fact of his birth in the Philippines, is likewise a citizen, regardless of whether he has lucrative income, or he adheres to the principles of the Constitution. So it is with an alien wife of a Philippine citizen. She is required to

prove only that she may herself be lawfully naturalized, i.e., that she is not one of the disqualified persons enumerated in Section 4 of the law, in order to establish her citizenship status as a fact. "A paramount policy consideration of graver import should not be overlooked in this regard, for it explains and justifies the obviously deliberate choice of words. It is universally accepted that a State, in extending the privilege of citizenship to an alien wife of one of its citizens could have had no other objective than to maintain a unity of allegiance among the members of the family. (Nelson v. Nelson, 113 Neb. 453, 203 N. W. 640 [1925]; see also 'Convention on the Nationality of Married Women: Historical Background and Commentary.' UNITED NATIONS, Department of Economic and Social Affairs E/CN, 6/399, pp. 8 et seq.). Such objective can only be satisfactorily achieved by allowing the wife to acquire citizenship derivatively through the husband. This is particularly true in the Philippines where tradition and law has placed the husband as head of the family, whose personal status and decisions govern the life of the family group. Corollary to this, our laws look with favor on the unity and solidarity of the family (Art. 220, Civil Code), in whose preservation of State as a vital and enduring interest. (See Art. 216, Civil Code). Thus, it has been said that by tradition in our country, there is a theoretic identity of person and interest between husband and wife, and from the nature of the relation, the home of one is that of the other. (See De la Viña v. Villareal, 41 Phil. 13). It should likewise be said that because of the theoretic identity of husband and wife, and the primacy of the husband, the nationality of husband should be the nationality of the wife, and the laws upon one should be the law upon the other. For as the court, in Hopkins v. Fachant (9th Cir., 1904) 65 C.C.A., 1, 130 Fed. 839, held: 'The status of the wife follows that of the husband, . . . and by virtue of her marriage her husband's domicile became her domicile.' And the presumption under Philippine law being that the property relations of husband and wife are under the regime of conjugal partnership (Art. 119, Civil Code), the income of one is also that of the other. "It is, therefore, not congruent with our cherished traditions of family unity and identity that a husband should be a citizen and the wife an alien, and that the national treatment of one should be different from that of the other. Thus, it cannot be that the husband's interests in property and business activities reserved by law to citizens should not form part of the conjugal partnership and be denied to the wife, nor that she herself cannot, through her own efforts but for the benefit of the partnership, acquire such interests. Only in rare instances should the identity of husband and wife be refused recognition, and we submit that in respect of our citizenship laws, it should only be in the instances where the wife suffers from the disqualifications stated in Section 4 of the Revised Naturalization Law." (Motion for Reconsideration, Burca vs. Republic, supra.) With all these considerations in mind, We are persuaded that it is in the best interest of all concerned that Section 15 of the Naturalization Law be given effect in the same way as it was understood and construed when the phrase "who may be lawfully naturalized," found in the American statute from which it was borrowed and copied verbatim, was applied by the American courts and administrative authorities. There is merit, of course, in the view that Philippine statutes should be construed in the light of Philippine circumstances, and with particular reference to our naturalization laws. We should realize the disparity in the circumstances between the United States, as the so-called "melting pot" of peoples from all over the world, and the Philippines as a developing country whose Constitution is nationalistic almost in the extreme. Certainly, the writer of this opinion cannot be the last in rather passionately insisting that our jurisprudence should speak our own concepts and resort to American authorities, to be sure, entitled to admiration and respect, should not be regarded as source of pride

and indisputable authority. Still, We cannot close our eyes to the undeniable fact that the provision of law now under scrutiny has no local origin and orientation; it is purely American, factually taken bodily from American law when the Philippines was under the dominating influence of statutes of the United States Congress. It is indeed a sad commentary on the work of our own legislature of the late 1920's and 1930's that given the opportunity to break away from the old American pattern, it took no step in that direction. Indeed, even after America made it patently clear in the Act of Congress of September 22, 1922 that alien women marrying Americans cannot be citizens of the United States without undergoing naturalization proceedings, our legislators still chose to adopt the previous American law of August 10, 1855 as embodied later in Section 1994 of the Revised Statutes of 1874, which, it is worth reiterating, was consistently and uniformly understood as conferring American citizenship to alien women marrying Americans ipso facto, without having to submit to any naturalization proceeding and without having to prove that they possess the special qualifications of residence, moral character, adherence to American ideals and American constitution, provided they show they did not suffer from any of the disqualifications enumerated in the American Naturalization Law. Accordingly, We now hold, all previous decisions of this Court indicating otherwise notwithstanding, that under Section 15 of Commonwealth Act 473, an alien woman marrying a Filipino, native born or naturalized, becomes ipso facto a Filipina provided she is not disqualified to be a citizen of the Philippines under Section 4 of the same law. Likewise, an alien woman married to an alien who is subsequently naturalized here follows the Philippine citizenship of her husband the moment he takes his oath as Filipino citizen, provided that she does not suffer from any of the disqualifications under said Section 4. As under any other law rich in benefits for those coming under it, doubtless there will be instances where unscrupulous persons will attempt to take advantage of this provision of law by entering into fake and fictitious marriages or mala fide matrimonies. We cannot as a matter of law hold that just because of these possibilities, the construction of the provision should be otherwise than as dictated inexorably by more ponderous relevant considerations, legal, juridical and practical. There can always be means of discovering such undesirable practices and every case can be dealt with accordingly as it arises. III. The third aspect of this case requires necessarily a re-examination of the ruling of this Court in Burca, supra, regarding the need of judicial naturalization proceedings before the alien wife of a Filipino may herself be considered or deemed a Filipino. If this case which, as already noted, was submitted for decision in 1964 yet, had only been decided earlier, before Go Im Ty, the foregoing discussions would have been sufficient to dispose of it. The Court could have held that despite her apparent lack of qualifications, her marriage to her co-petitioner made her a Filipina, without her undergoing any naturalization proceedings, provided she could sustain her claim that she is not disqualified under Section 4 of the law. But as things stand now, with the Burca ruling, the question We have still to decide is, may she be deemed a Filipina without submitting to a naturalization proceeding? Naturally, if Burca is to be followed, it is clear that the answer to this question must necessarily be in the affirmative. As already stated, however, the decision in Burca has not yet become final because there is still pending with Us a motion for its reconsideration which vigorously submits grounds worthy of serious consideration by this Court. On this account, and for the reasons expounded earlier in this opinion, this case is as good an occasion as any other to re-examine the issue. In the said decision, Justice Sanchez held for the Court: "We accordingly rule that: (1) An alien woman married to a Filipino who desires to be a citizen of this country must apply therefore by filing a petition for citizenship reciting that she possesses all the qualifications set forth in Section 2 and none of the disqualifications under Section 4, both of the Revised Naturalization Law; (2) Said

petition must be filed in the Court of First Instance where petitioner has resided at least one year immediately preceding the filing of the petition; and (3) Any action by any other office, agency, board or official, administrative or otherwise — other than the judgment of a competent court of justice — certifying or declaring that an alien wife of the Filipino citizen is also a Filipino citizen, is hereby declared null and void.

"3. We treat the present petition as one for naturalization. Or, in the words of law, a 'petition for citizenship'. This is as it should be. Because a reading of the petition will reveal at once that efforts were made to act forth therein. and to prove afterwards, compliance with Sections 2 and 4 of the Revised Naturalization law. The trial court itself apparently considered the petition as one for naturalization, and, in fact, declared petitioner 'a citizen of the Philippines.'" In other words, under this holding, in order for an alien woman marrying a Filipino to be vested with Filipino citizenship, it is not enough that she possesses the qualifications prescribed by Section 2 of the law and none of the disqualifications enumerated in its Section 4. Over and above all these, she has to pass thru the whole process of judicial naturalization, apparently from declaration of intention to oath-taking, before she can become a Filipina. In plain words, her marriage to a Filipino is absolutely of no consequence to her nationality vis-a-vis that of her Filipino husband; she remains to be the national of the country to which she owed allegiance before her marriage, and if she desires to be of one nationality with her husband, she has to wait for the same time that any other applicant for naturalization needs to complete, the required period of ten year residence, gain the knowledge of English or Spanish and one of the principal local languages, make her children study in Filipino schools, acquire real property or engage in some lawful occupation of her own independently of her husband, file her declaration of intention and after one year her application for naturalization, with the affidavits of two credible witnesses of her good moral character and other qualifications, etc., etc., until a decision is rendered in her favor, after which, she has to undergo the two years of probation, and only then, but not before she takes her oath as citizen, will she begin to be considered and deemed to be a citizen of the Philippines. Briefly; she can become a Filipino citizen only by judicial declaration. Such being the import of, the Court's ruling, and it being quite obvious, on the other hand, upon a cursory reading of the provision, in question, that the law intends by it to spell out what is the "effect of naturalization on (the) wife and children" of an alien, as plainly indicated by its title, and inasmuch as the language of the provision itself clearly conveys the thought that some effect beneficial to the wife is intended by it, rather than that she is not in any manner to be benefited thereby, it behooves Us to take a second hard look at the ruling, if only to see whether or not the Court might have overlooked any relevant consideration warranting a conclusion different from that contained therein. It is undeniable that the issue before Us is of grave importance, considering its consequences upon tens of thousands of persons affected by the ruling therein made by the Court, and surely, it is for Us to avoid, whenever possible, that Our decision in any case should produce any adverse effect upon them not contemplated either by the law or by the national policy it seeks to enforce. AMICI CURIAE in the Burca case, respectable and impressive by their number and standing in the Bar and well known for their reputation for intellectual integrity, legal acumen and incisive and comprehensive resourcefulness in research, truly evident in the quality of the memorandum they have submitted in said case, invite Our attention to the impact of the decision therein thus: "The doctrine announced by this Honorable Court for the first time in the present case — that an alien woman who marries a Philippine citizen not only does not ipso facto herself become a citizen but can acquire such citizenship only through ordinary naturalization proceedings under the Revised Naturalization Law, and that all

administrative actions 'certifying or declaring' such woman to be a Philippine citizen are 'null and void' — has consequences that reach far beyond the confines of the present case. Considerably more people are affected, and affected deeply, than simply Mrs. Zita N. Burca. The newspapers report that as many as 15 thousand women married to Philippine citizens are affected by this decision of the Court. These are women of many and diverse nationalities, including Chinese, Spanish, British, American, Columbian, Finnish, Japanese, Chilean, and so on. These members of the community, some of whom have been married to citizens for two or three decades, have all exercised rights and privileges reserved by law to Philippine citizens. They will have acquired, separately or in conjugal partnership with their citizen husbands, real property, and they will have sold and transferred such property. Many of these women may be in professions membership in which is limited to citizens. Others are doubtless stockholders or officers or employees in companies engaged in business activities for which a certain percentage of Filipino equity content is prescribed by law. All these married women are now faced with possible divestment of personal status and of rights acquired and privileges exercised in reliance, in complete good faith, upon a reading of the law that has been accepted as correct for more than two decades by the very agencies of government charged with the administration of that law. We must respectfully suggest that judicial doctrines which would visit such comprehensive and far-reaching injury upon the wives and mothers of Philippine citizens deserve intensive scrutiny and re-examination." To be sure, this appeal can be no less than what this Court attended to in Gan Tsitung vs. Republic, G.R. No L-20819, Feb. 21, 1967, 19 SCRA 401—when Chief Justice Concepcion observed: "The Court realizes, however, that the rulings in the Barretto and Delgado cases — although referring to situations the equities of which are not identical to those obtaining in the case at bar — may have contributed materially to the irregularities committed therein and in other analogous cases, and induced the parties concerned to believe, although erroneously, that the procedure followed was valid under the law. "Accordingly, and in view of the implications of the issue under consideration, the Solicitor General was required, not only, to comment thereon, but, also, to state 'how many cases there are, like the one at bar, in which certificates of naturalization have been issued after notice of the filing of the petition for naturalization had been published in the Official Gazette only once, within the periods (a) from January 28, 1950' (when the decision in Delgado v. Republic was promulgated) 'to May 29, 1957' (when the Ong Son Cui was decided) 'and (b) from May 29, 1957 to November 29, 1965' (when the decision in the present case was rendered). "After mature deliberation, and in the light of the reasons adduced in appellant's motion for reconsideration and in the reply thereto of the Government, as well as of the data contained in the latter, the Court holds that the doctrine laid down in the Ong Son Cui case shall apply and affect the validity of certificates of naturalization issued after, not on or before May 29, 1957." Here We are met again by the same problem. In Gan Tsitung, the Court had to expressly enjoin the prospective application of its construction of the law made in a previous decision 24 which had already become final, to serve the ends of justice and equity. In the case at bar, We do not have to go that far. As already observed, the decision in Burca is still under reconsideration, while the ruling in Lee Suan Ay, Lo San Tuang, Choy King Tee and other that followed them have at the most become the law of the case only for the parties thereto. If there are good grounds therefor, all We have to do now is to re-examine the said rulings and clarify them.

For ready reference, We requote Section 15: "Sec. 15. Effect of the naturalization on wife and children .— Any woman who is now or may hereafter be married to a citizen of the Philippines, and who might herself be lawfully naturalized shall be deemed a citizen of the Philippines. "Minor children of persons naturalized under this law who have been born in the Philippines shall be consider citizens thereof. "A foreign-born minor child, if dwelling in the Philippines at the time of naturalization of the parents, shall automatically become a Philippine citizen, and a foreign-born minor child, who is not in the Philippines at the time the parent is naturalized, shall be deemed a Philippines citizen only during his minority, unless he begins to reside permanently in the Philippines when still a minor, in which case, he will continue to be a Philippine citizen even after becoming of age. "A child born outside of the Philippines after the naturalization of his parent, shall be considered a Philippine citizen, unless within one year after reaching the age of minority, he fails to register himself as a Philippine citizen at the American Consulate of the country where he resides, and to take the necessary oath of allegiance." It is obvious that the main subject-matter and purpose of the statute, the Revised Naturalization Law or Commonwealth Act 473, as a whole is to establish a complete procedure for the judicial conferment of the of the status of citizenship upon qualified aliens. After having out such a procedure, remarkable for its elaborate and careful inclusion of all safeguards against the possibility of any undesirable persons becoming a part of our citizenry, it carefully but categorically states the consequence of the naturalization of an alien undergoing such procedure it prescribes upon members of his immediate family, his wife and children, 25 and, to that end, in no uncertain terms it ordains that: (a) all his minor children who have been born in the Philippines shall be "considered citizens" also; (b) all such minor children, if born outside the Philippines but dwelling here at the time of such naturalization "shall automatically become" Filipinos also, but those not born in the Philippines and not in the Philippines at the time of such naturalization, are also "deemed citizens" of this country provided that they shall lose said status if they transfer their permanent residence to a foreign country before becoming of age; (c) all such minor children, if born outside of the Philippines after such naturalization, shall also be "considered" Filipino citizens, unless they expatriate themselves by failing to register as Filipinos at the Philippine (American) Consulate of the country where they reside and take the necessary oath of allegiance; and (d) as to the wife, she "shall be deemed a citizen of the Philippines" if she is one "who might herself be lawfully naturalized". 26

No doubt whatever is entertained, so Burca holds very correctly, as to the point that the minor children, failing within the conditions of place and time of birth and residence prescribed in the provision, are vested with Philippines citizenship directly by legislative fiat or by force of the law itself and without the need for any judicial proceeding or declaration. (At p. 192 SCRA). Indeed, the language of the provision is not susceptible of any other interpretation. But it is claimed that the same expression "shall be deemed a citizen of the Philippines" in reference to the wife, does not necessarily connote the vesting of citizenship status upon her by legislative fiat because the antecedent phrase requiring that she must be one "who might herself be lawfully naturalized" implies that such status is intended to attach only after she has undergone the whole process of judicial naturalization required of any person desiring to become a Filipino. Stated otherwise, the ruling in Burca is that while Section 15 envisages and intends legislative naturalization as to the minor children, the same section deliberately treats the wife differently and leaves her out for ordinary judicial naturalization.

Of course, it goes without saying that it is perfectly within the constitutional authority of the Congress of the Philippines to confer or vest citizenship status by legislative fiat. (U.S. v. Wong Kim Ark, 169 U.S. 649, 42 L ed. 890 [1898]; See, 1 Tañada & Carreon, Political Law of the Philippines 152 [1961 ed.] ) In fact, it has done so for particular individuals, like two foreign religious prelates, 27 hence there is no reason it cannot do it for classes or groups of persons under general conditions applicable to all of the members of such class or group, like women who marry Filipinos, whether native-born or naturalized. The issue before Us in this case is whether or not the legislature has done so in the disputed provisions of Section 15 of the Naturalization Law. And Dr. Vicente G. Sinco, one of the most respected authorities on political law in the Philippines 28 observes in this connection thus: " A special form of naturalization is often observed by some states with respect to women. Thus in the Philippines a foreign woman married to a Filipino citizen becomes ipso facto naturalized, if she belongs to any of the classes who may apply for naturalization under the Philippine Laws" (Sinco, Phil. Political Law 498-499 [10th ed. 1954]; emphasis ours; this comment is substantially reiterated in the 1962 edition, citing Ly Giok Ha and Ricardo Cua , supra.) More importantly, it may be stated at this juncture, that in construing the provision of the United States statutes from which our law has been copies, 28a the American citizenship by choice but by operation of law. "In the Revised Statutes the words 'and taken' are omitted. The effect of this statute is that every alien woman who marries a citizen of the United States becomes perforce a citizen herself, without the formality of naturalization, and regardless of her wish in that respect." (USCA 8, p. 601 [1970 ed.], citing Mackenzie v. Hare, 1913, 134 P. 713, 165 Cal. 766, affirmed 36 S. Ct. 106, 239 U.S. 299, 60 L ed. 297.) We need not recount here again how this provision in question was first enacted as paragraph (a) of Section 13, by way of an insertion into Act 2927 by Act 3448 of November 30, 1928, and that , in turn, and paragraph was copied verbatim from Section 1994 of the Revised Statutes of the United States, which by that time already had a long accepted construction among the courts and administrative authorities in that country holding that under such provision an alien woman who married a citizen became, upon such marriage, likewise a citizen by force of law and as a consequence of the marriage itself without having to undergo any naturalization proceedings, provided that it could be shown that at the time of such marriage, she was not disqualified to be naturalized under the laws then in force. To repeat the discussion We already made of these undeniable facts would unnecessarily make this decision doubly extensive. The only point which might be reiterated for emphasis at this juncture is that whereas in the United States, the American Congress, recognizing the uniform construction of Section 1994 of the Revised Statutes to be as stated above, and finding it desirable to avoid the effects of such construction, approved the Act of September 22, 1922 explicitly requiring all such alien wives to submit to judicial naturalization, albeit under more liberal terms than those for other applicants for citizenship, on the other hand, the Philippines Legislature, instead of following suit and adopting a requirement, enacted Act 3448 on November 30, 1928 which copied verbatim the aforementioned Section 1994 of the Revised Statutes, thereby indicating its preferences to adopts the latter law and its settled constitution rather than the reform introduced by the Act of 1992. Obviously, these considerations leave Us no choice. Much as this Court may feel that as the United States herself has evidently found it to be an improvement of her national policy vis-a-vis the alien wives of her citizens to discontinue their automatic incorporation into the body of her citizenry without passing through the judicial scrutiny of a naturalization proceeding, as it used to be before 1922, it seems but proper, without evidencing any bit of colonial mentality, that as a developing country, the Philippines adopt a similar policy, unfortunately, the manner in which our own legislature has enacted our laws on the subject, as recounted above, provides no basis for Us to construe said law along the line of the 1922 modification of the American Law. For Us to do so would be to indulge in judicial legislation which it is not constitutionally permissible for this Court to do. Worse, this Court would be going precisely against the grain of the implicit Legislative intent.

There is at least one decision of this Court before Burca wherein it seems it is quite clearly implied that this Court is of the view that under Section 16 of the Naturalization Law, the widow and children of an applicant for naturalization who dies during the proceeding do not have to submit themselves to another naturalization proceeding in order to avail of the benefits of the proceedings involving the husband. Section 16 provides: "SEC. 16. Right of widow and children of petitioners who have died. — In case a petitioner should die before the final decision has been rendered, his widow and minor children may continue the proceedings. The decision rendered in the case shall, so far same legal effect as if it had been rendered during the life of the petitioner." In Tan Lin v. Republic, G.R. No. L-13706, May 31, 1961, 2 SCRA 383 this Court held: "Invoking the above provisions in their favor, petitioners-appellants argue (1) that under said Sec. 16, the widow and minor children are allowed to continue the same proceedings and are not substituted for the original petitioner; (2) that the qualifications of the original petitioner remain to be in issue and not those of the widow and minor children, and (3) that said Section 16 applies whether the petitioner dies before or after final decision is rendered, but before the judgment becomes executory. "There is force in the first and second arguments. Even the second sentence of said Section 16 contemplates the fact that the qualifications of the original petitioner remains the subject of inquiry, for the simple reason that it states that "The decision rendered in the case shall, so far as the widow and minor children are concerned, produce the same legal effect as if it had been rendered during the life of the petitioner.' This phraseology emphasizes the intent of the law to continue the proceedings with the deceased as the theoretical petitioner, for if it were otherwise, it would have been unnecessary to consider the decision rendered, as far as it effected the widow and the minor children. xxx xxx xxx "The Chua Chian case (supra), cited by the appellee, declared that a dead person can not be bound to do things stipulated in the oath of allegiance, because an oath is a personal matter. Therein, the widow prayed that she be allowed to take the oath of allegiance for the deceased. IN the case at bar, petitioner Tan Lin merely asked that she be allowed to take the oath of allegiance and the proper certificate of naturalization, once the naturalization proceedings of her deceased husband, shall have been completed, not on behalf of the deceased, but on her own behalf and of her children, as recipients of the benefits of his naturalization. In other words, the herein petitioner proposed to take the oath of allegiance, as a citizen of the Philippines, by virtue of the legal provision that 'any woman who is now or may hereafter be married to a citizen of the Philippines and who might be lawfully naturalized shall be deemed a citizen of the Philippines. Minor children of persons naturalized under this law who have been born in the Philippines shall be considered citizens thereof.' (Section 15, Commonwealth Act No. 473). The decision granting citizenship to Lee Pa and the record of the case at bar, do not show that the petitioning widow could not have been lawfully naturalized, at the time Lee Pa filed his petition, apart from the fact that his 9 minor children were all born in the Philippines. (Decision, In the Matter of the P)etition of Lee Pa to be admitted a citizen of the Philippines, Civil Case No. 16287, CFI, Manila, Annex A; Record on Appeal, pp. 8-11). The reference for Chua case is, therefore, premature." Section 16, as may be seen, is a parallel provision to Section 15. If the widow of an applicant for naturalization as Filipino, who dies during the proceedings, is not required to go through a

naturalization proceedings, in order to be considered as a Filipino citizen hereof, it should follow that the wife of a living Filipino cannot be denied the same privilege. This is plain common sense and there is absolutely no evidence that the Legislature intended to treat them differently.

Additionally, We have carefully considered the arguments advanced in the motion for reconsideration in Burca, and We see no reason to disagree with the following views of counsel: "It is obvious that the provision itself is a legislative declaration of who may be considered citizens of the Philippines. It is a proposition too plain to be disputed that Congress has the power not only to prescribe the mode or manner under which foreigners may acquire citizenship, but also the very power of conferring citizenship by legislative fiat. (U.S. v. Wong Kim Ark, 169 U.S. 649, 42 L. Ed. 890 [1898]; see 1 Tañada and Carreon, Political Law of the Philippine citizens ed.]). The constitutional itself recognizes as Philippines citizens 'Those who are naturalized in accordance with law' (Section 1[5], Article IV, Philippine Constitution). Citizens by naturalization, under this provision, include not only those who are naturalized in accordance with legal proceedings for the acquisition of citizenship, but also those who acquire citizenship by 'derivative naturalization' or by operation of law, as. for example, the 'naturalization' of an alien wife through the naturalization of her husband, or by marriage of an alien woman to a citizen. (See Tañada & Carreon, op.cit supra, at 152 172; Velayo, Philippine Citizenship and Naturalization 2 [1965 ed.]: 1 Paras, Civil code 186 [1967 ed.]; see also 3 Hackworth, Digest of International Law 3). "The phrase 'shall be deemed a citizen of the Philippines found in Section 14 of the Revised Naturalization Law clearly manifests an intent to confer citizenship. Construing a similar phrase found in the old U.S. naturalization law (Revised Statutes, 1994) , American courts have uniformly taken it to mean that upon her marriage, the alien woman becomes by operation of law a citizen of the United States as fully as if she had complied with all the provisions of the statutes upon the subject of naturalization. (U.S. v. Keller, 13 F. 82; U.S. Opinions of the US Attorney General dated June 4, 1874 [14 Op. 402], July 20, 1909 [27 Op. 507], December 1, 1910 [28 Op. 508], Jan. 15, 1920 [32 Op. 209] and Jan. 12, 1923 [23 398] ). 'The phrase "shall be deemed a citizen, " in Section 1994 Revised Statute (U.S. Comp. Stat. 1091 1268) or as it was in the Act of 1855 910 Stat. at L. 604, Chapt. 71, Sec. 2), "shall be deemed and taken to be a citizen", while it may imply that the person to whom it relates has not actually become a citizen by the ordinary means or in the usual way, as by the judgment of a competent court, upon a proper application and proof, yet it does not follow that such person is on that account practically any the less a citizen. The word "deemed" is the equivalent of "considered" or "judged," and therefore, whatever an Act of Congress requires to be "deemed" or "taken" as true of any person or thing must, in law, be considered as having been duly adjudged or established concerning such person or thing, and have force and effect accordingly. When, therefore, Congress declares that an alien woman shall, under certain circumstances, be "deemed" an American to her being naturalized directly by an Act of Congress or in the usual mode thereby prescribed.' (Van Dyne, Citizenship of the United States 239, cited in Velayo, Philippine Citizenship and Naturalization 146-147 [1965 ed.] ; italics ours).

"That this was likewise the intent of the Philippine legislature when it enacted the first paragraph of Section 15 of the Revised Naturalization provision. In its entirely, Section 15 reads: (See supra) The phrases 'shall be deemed,' shall be considered,' and 'shall automatically become,' as used in the above provision , are undoubtedly synonymous. The leading idea or purpose of the provision was to confer Philippine citizenship by operation of law upon certain classes of aliens as a legal consequence of their relationship, by blood affinity, to persons who are already citizens of the Philippines. Whenever the fact of relationship of the persons enumerated in the provision concurs related, the effect is for said persons to become ipso facto citizens of the Philippines. 'Ipso facto' as here used does not mean that all alien wives and all minor children of Philippine citizens, from the mere fact of relationship, necessarily become such citizens also. Those who do not meet the statutory requirements do not ipso facto become citizens; they must apply for naturalization in order to acquire such status. What it does mean, however, is that in respect of those persons numerated in Section 15, the relationship to a citizen of the Philippines is the operative fact which establishes the acquisition of Philippine citizenship by them. Necessarily, it also determines the points of time at which such citizenship commences. Thus, under the second paragraph of Section 15, a minor child of a Filipino naturalized under the law, who was born in the Philippines, becomes ipso facto a citizen of the Philippines from the time the fact of relationship concurs with the fact of a citizenship of his parent, and the time when child became a citizen does not depend upon the time that he is able to prove that he was born in the Philippines. The child may prove some 25 years after the naturalization of his father that he was born in the Philippines and should, therefore, be 'considered' a citizen thereof. It does not mean that he became a Philippine citizen only at that later time. Similarly, an alien woman who married a Philippine citizen may be able to prove only some 25 years after her marriage (perhaps, because it was only 25 years after the marriage that her citizenship status became in question), that she is one who 'might herself be lawfully naturalized.' It is not reasonable to conclude that she acquired Philippine citizenship only after she had proven that she 'might herself be lawfully naturalized.' "The point that bears emphasis in this regard is that in adopting the very phraseology of the law , the legislature could not have intended that an alien wife should not be deemed a Philippine citizen unless and until she proves that she might herself be lawfully naturalized' is not a condition precedent to the vesting or acquisition of citizenship; it is only a condition or a state of fact necessary to establish her citizenship as a factum probandum i.e., as a fact established and proved in evidence. The word 'might,' as used in that phrase, precisely implies that at the time of her marriage to a Philippine citizen, the alien woman 'had (the) power' to become such a citizen herself under the laws then in force. (Owen v. Kelly, 6 DC 191 [1867], aff'd Kelly v. Owen, power long after her marriage does not alter the fact that at her marriage, she became a citizen. "(This Court has held) that 'an alien wife of a Filipino citizen may not acquire the status of a citizen of the Philippines unless there is proof that she herself may be lawfully naturalized' (Decision, pp. 3-4). Under this view, the acquisition' of citizenship by the alien wife depends on her having proven her qualifications for citizenship, that is, she is not a lawfully naturalized. It is clear from the words of the law that the proviso does not mean that she must first prove that deemed (by Congress, not by the courts) a citizen. Even the 'uniform' decisions cited by this Court (at fn. 2) to support its holding did not rule that the alien wife becomes a citizen only after she has proven her

qualifications for citizenship. What those decisions ruled was that the alien wives in those cases failed to prove their qualifications and therefore they failed to establish their claim to citizenship. Thus in Ly Giok Ha v. Galang, 101 Phil. 459 [1957], the case was remanded to the lower court for determination of whether petitioner, whose claim to citizenship by marriage to a Filipino was disputed by the Government, 'might herself be lawfully naturalized,' for the purpose of 'proving her alleged change of political status from alien to citizen' (at 464). In Cua v. Board, 101 Phil. 521 [1957], the alien wife who was being deported, claimed she was a Philippine citizen by marriage to a Filipino. This Court finding that there was no proof that she was not disqualified under Section 4 of the Revised Naturalization Law, ruled that: 'No such evidence appearing on record, the claim of assumption of Philippine citizenship by Tijoe Wu Suan, upon her marriage to petitioner, is untenable.' (at 523) It will be observed that in these decisions cited by this Court, the lack of proof that the alien wives 'might (themselves) be lawfully naturalized' did not necessarily imply that they did not become, in truth and in fact, citizens upon their marriage to Filipinos. What the decisions merely held was that these wives failed to establish their claim to that status as a proven fact. "In all instances where citizenship is conferred by operation of law, the time when citizenship is conferred should not be confused with the time when citizenship status is established as a proven fact. Thus, even a natural-born citizen of the Philippines, whose citizenship status is put in issue in any proceeding would be required to prove, for instance, that his father is a citizen of the Philippines in order to factually establish his claim to citizenship. ***His citizenship status commences from the time of birth, although his claim thereto is established as a fact only at a subsequent time. Likewise, an alien woman who might herself be a lawfully naturalized becomes a Philippine citizen at the time of her marriage to a Filipino husband, not at the time she is able to establish that status as a proven fact by showing that she might herself be lawfully naturalized. Indeed, there is no difference between a statutory declaration that a person is deemed a citizen of the Philippines provided his father is such citizen from a declaration that an alien woman married to a Filipino citizen of the Philippines provided his father is such citizen from a declaration that an alien woman married to a Filipino citizen of the Philippines provided she might herself be lawfully naturalized. Both become citizens by operation of law; the former becomes a citizen ipso facto upon birth; the later ipso facto upon marriage.

"It is true that unless and until the alien wife proves that she might herself be lawfully naturalized, it cannot be said that she has established her status as a proven fact. But neither can it be said that on account, she did not become a citizen of the Philippines. If her citizenship status is not questioned in any legal proceeding, she obviously has no obligation to establish her status as a fact. In such a case, the presumption of law should be what she claims to be. (U.S. v. Roxas, 5 Phil. 375 [1905] : Hilado v. Assad, 51 O.G. 4527 [1955] ). There is a presumption that a representation shown to have been made is true. (Aetna Indemnity Co. v. George A. Fuller, Co., 73 A. 738 A. 369, 111 ME. 321)." The question that keeps bouncing back as a consequence of the foregoing views is, what substitute is there for naturalization proceeding to enable the alien wife of a Philippine citizen to have the matter of her own citizenship settled and established so that she may not have to be called upon to prove it everytime she has to perform an act or enter into a transaction or business or exercise a right reserved only to Filipinos? The ready answer to such question is that as the laws of our country, both substantive and procedural, stand today, there is no such procedure, but such is no proof that the citizenship under discussion is not vested as of the date of marriage or the husband's acquisition of

citizenship, as the case may be, for the truth is that the situation obtains even as to native-born Filipinos. Everytime the citizenship of a person is material or indispensible in a judicial or administrative case, Whatever the corresponding court or administrative authority decides therein as to such citizenship is generally not considered as res adjudicata, hence it has to be threshed out again and again as the occasion may demand. This, as We view it, is the sense in which Justice Dizon referred to "appropriate proceeding" in Brito v. Commissioner, supra. Indeed, only the good sense and judgment of those subsequently inquiring into the matter may make the effort easier or simpler for the persons concerned by relying somehow on the antecedent official findings, even if these are not really binding. It may not be amiss to suggest, however, that in order to have a good starting point and so that the most immediate relevant public records may be kept in order the following observations in Opinion No. 38, series of 1958, of then Acting Secretary of Justice Jesus G. Barrera, may be considered as the most appropriate initial step by the interested parties. "Regarding the steps that should be taken by an alien woman married to a Filipino citizen in order to acquire Philippine citizenship, the procedure followed in the Bureau of Immigration is as follows: The alien woman must file a petition for the cancellation of her alien certificate of registration alleging, among other things, that she is married to a Filipino citizen and that she is not disqualified from acquiring her husband's citizenship pursuant to section 4 of Commonwealth Act No. 473, as amended. Upon the filing of said petition, which should be accompanied or supported by the joint affidavit of the petitioner and her Filipino husband to the effect that the petitioner does not belong to any of the groups disqualified by the cited section from becoming naturalized Filipino citizen (please see attached CEB Form 1), the Bureau of Immigration conducts an investigation and thereafter promulgates its order or decision granting or denying the petition." Once the Commissioner of Immigration cancels the subject's registration as an alien, there will probably be less difficulty in establishing her Filipino citizenship in any other proceeding, depending naturally on the substance and vigor of the opposition. Before closing, it is perhaps best to clarify that this third issue We have passed upon was not touched by the trial court, but as the point is decisive in this case, the Court prefers that the matter be settled once and for all now. IN VIEW OF ALL THE FOREGOING, the judgment of the Court a quo dismissing appellants' petition for injunction is hereby reversed and the Commissioner of Immigration and/or his authorized representative is permanently enjoined from causing the arrest and deportation and the confiscation of the bond of appellant Lau Yuen Yeung, who is hereby declared to have become a Filipino citizen from and by virtue of her marriage to her co-appellant Moy Ya Lim Yao al as Edilberto Aguinaldo Lim, a Filipino citizen of January 25, 1962. No costs. Dizon, Castro, Teehankee and Villamor, JJ ., concur. Makalintal J ., reserves his separate concurring opinion. Fernando, J ., concurs except as the interpretation accorded some American decisions as to which he is not fully persuaded. APPENDIX The following review of all naturalization statutes of the United States from 1790 to 1970 ravel: (1) that aside from race, various other disqualifications have also been provided for in the said statutes from time to time, although it was only in 1906 that the familiar and usual grounds of disqualification, like not being anarchists, polygamists, etc. were incorporated therein, and (2) that qualifications of applicants for naturalization also varied from time to time.

A — DISQUALIFICATIONS 1. In the first naturalization statute of March 26, 1790, only a "free white person" could be naturalized, provided he was not "proscribed" by any state, unless it be with the consent of such state. (Chap. V. 1 Stat. 103) 2. In the Act of January 29, 1795, to the same provisions was added the disqualification of those "legally convicted of having joined the army of Great Britain, during the late war." (Chap. XX, 1 Stat. 414). 3. In the Act of June 18, 1798, Section 1 thereto provided: "SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no alien shall be admitted to become a citizen of the United States, or of any state, unless in the manner prescribed by the act, entitled 'An Act to establish an uniform rule of naturalization; and to repeal the act heretofore passed on that subject, 'he shall have declared his intention to become a citizen of the United States, five years, at least, before his admission, and shall, at the time of his application to be admitted, declare and prove, to the satisfaction of the court having jurisdiction in the case, that he has resided within the United States fourteen years, at least, and within the state or territory where, or for which such court is at the time held five years, at least, besides conforming to the other declarations, renunciations and proofs, by the said act required, any thing therein to the contrary hereof notwithstanding: Provided, that any alien, who was residing within the limelights, and under the jurisdiction of the United States, before the twenty-ninth day of January, one thousand seven hundred and ninety-five, may, within one year after the passing of this act—and any alien who shall have made the declaration of his intention to become a citizen of the United States, in conformity to the provisions of the act, entitled 'An act to establish an uniform rule of naturalization, and to repeal the act heretofore passed on that subject,' may, within four years after having made the declaration aforesaid, be admitted to become a citizen, in the manner prescribed by the said act, upon his making proof that he has resided five years, at least, within the limits, and under the jurisdiction of the United States: And provided also, that no alien, who shall be a native, citizen, denizen or subject of any nation or state with whom the United States shall be at war, at the time of his application, shall be then admitted to become a citizen of the United States." There is here no mention of "white persons." (Chap. LIV, 1 Stat. 566). 4. In the Act of April 14, 1802, mentioned in Kelly v. Owen, supra, reference was made again to "free white persons," and the same enemy alien and "state-proscribed" disqualifications in the former statutes were carried over. (Chap. XXVIII, 2 Stat. 153.) 5. The Act of March 26, 1804 provided in its Section 1 thus: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any alien, being a free white person, who was residing within the limits and under the jurisdiction of the United States, at any time between the eighteenth day of June, one thousand seven hundred and ninety-eight, and the fourteenth day of April one thousand eight hundred and two, and who has continued to reside within the same, may be admitted to become a citizen of the United States, without a compliance with the first condition specified in the first section of the act, entitled 'An act to establish an uniform rule of naturalization, and to repeal the acts heretofore passed on that subject.' " In its Section 2, this Act already provided that:

"SEC. 2. And be it further enacted, That when any alien who shall have complied with the first condition specified in ,the first section of the said original act, and who shall have pursued the directions prescribed in the second section of the said act, may die, before he is actually naturalized, the widow and the children of such alien shall be considered as citizens of the United States, and shall be entitled to rights and privileges as such, upon taking the oaths prescribed by law." (CHAP. XLVII, 2 Stat. 292) 6. In the Act of July 30, 1813, the disqualification of enemy aliens was removed as follows: "CHAP. XXXVI. — An Act supplementary to the acts heretofore passed on the subject of an uniform rule of naturalization. (a) "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That persons resident within the United States, or the territories thereof, on the eighteenth day of June, in the year one thousand eight hundred and twelve, who had before that day made declaration according to law, of their intention to become citizens of the United States, or who by the existing laws of the United States, were on that day entitled to become citizens, without making such declaration, may be admitted to become citizens thereof, notwithstanding they shall be alien enemies at the times and in the manner prescribed by the laws heretofore passed on that subject: Provided, That nothing herein contained shall be taken or construed to interfere with or prevent the apprehension and removal, agreeably to law, of any alien enemy at any time previous to the actual naturalization of such alien." (Chap. XXXVI, 3 Stat. 53)

7. Neither the Act of March 22, 1816 nor those of May 26, 1824 and May 24, 1828 made any change in the above requirements. (Chap. XXXII, 3 Stat. 258; Chap. CLXX-XVI, 4 Stat. 69; and Chap. CXVI, 4 Stat. 310). 8. Then the Act of February 10, 1855, important because it gave alien wives of citizens ,the status of citizens, was enacted providing: "CHAP. LXXI. — An Act to secure the Right of Citizenship to Children of Citizens of the United States born out of the Limits thereof. "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: Provided, however, That the rights of citizenship shall not descend to persons whose fathers never resided in the United States. "SEC. 2. And be it further enacted, That any woman who might lawfully be naturalized under the existing laws, married, or who shall be married to a citizen of the United States, shall loyal be deemed and taken to be a citizen." (Chap. LXXI, 10 Stat. 604.) 9. The Act of July 14, 1870 mainly provided only for penalties for certain acts related to naturalization, as punished thereby, but added in its Section 7 "that the naturalization laws are hereby extended to aliens of African nativity and to African descent." (Chap. CCLIV, 16 Stat. 254.) 10. The Act of February 1, 1876 contained no relevant amendment. (Chap. 5, 19 Stat. 2.)

11. When the statutes of the United States were revised on June 22, 1874, the naturalization law of the country was embodied in Sections 2165-2174 of saddle Revised Statutes. This contained no racial disqualification. In fact, it reenacted ;Section 2 of the Act of February 10, 1855 as its Section 1994 thereof, thus: "SEC. 1994. Any person who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen." (18 Stat. 351.) 12. The Act of May 6, 1882 provided expressly that no State court or court of the United State shall admit Chinese to citizenship. (Chap. 126, Sec. 14, 22 Stat. , 61.) 13. The Act of August 9, 1888 extended the benefits of American citizenship to Indian woman married to Americans thus: "CHAP. 818. — An Act in relation to marriage between white men and Indian women. "Be it enacted, That no white man, not otherwise a member of any tribe of Indians, who may hereafter marry, an Indian woman, member of any Indian tribe in the United States, or any of its Territories except the five civilized tribes in the Indian Territory, shall by such marriage hereafter acquire any right to any tribal property, privilege, or interest whatever to which any member of such tribe is entitled. "SEC. 2. That every Indian woman, member of any such tribe of Indians, who may hereafter be married to any citizen of the United States, is hereby declared to become by such marriage a citizen of the United States, with all the right, privileges, and immunities of any such citizen, being a married woman: "Provided, That nothing in this act contained shall impair or in any way affect the right or title of such married woman to any tribal property or any interest therein. "SEC. 2. That whenever the marriage of any white man with any Indian woman, a member of any such tribe of Indians, is required or offered to be proved in any judicial ,proceeding, evidence of the admission of such fact by the party against whom the proceeding is had, or evidence of general repute, or of cohabitation as married persons, or any other circumstantial or presumptive evidence from which the fact may be inferred, shall be competent. (Aug. 9, 1888) " [25 Stat. 392, Suppl. 1.] 14. The Act of April 19, 1900 extended American citizenship to all citizens of the Republic of Hawaii on August 12, 1898 as well as the laws of the United States to said Republic, including, of course, those on naturalization. (Chap. 339, Sec. 4, 31 Stat. 141.) 15. On June 29, 1906. "An Act to establish a Bureau of Immigration and Naturalization, and to provide a uniform rule for the naturalization of aliens throughout the United States" was approved. No reference was made therein to "free white persons''; it merely provided in its Section 7 that: "SEC. 7. That no person who disbelieve in or who is opposed to organized government, or who is a member of or affiliated with any organization entertaining and teaching such disbelief in or opposition to organized government, or who advocates or teaches the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers, either of specific individuals or of officers generally of the Government of the United States, or of any other organized government, because of his or their official character, or who is a polygamist, shall be naturalized or be made a citizen of the United States." (36 Stat. 598) Incidentally, the 6th paragraph of its Section 4 provided:

"Sixth. When any alien who has declared his intention to become a citizen of the United States dies before he is actually naturalized the widow and minor children of such alien may, by complying with the other provisions of this Act, be naturalized without making any declaration of intention." (36 Stat. 598) 16. By the Act of March 2, 1907, alien women who acquired American citizenship by marriage retained said citizenship, if she continued to reside in the United States and did not renounce it, or, if she resided outside of the United States by registering with the U.S. Consul of her place of residence. (CHAP. 2534, Sec. 4, 34 Stat. 1229.) 17. Since United States legislation treats naturalization and citizenship per se separately, Section 1994 of the Revised Statutes remained untouched. In the Act of February 24, 1911 it was provided: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That when any alien, who has declared his intention to become a citizen of the United States, becomes insane before he is actually naturalized, and his wife shall thereafter make a homestead entry under the land laws of the United States, she and their minor children may, by complying with the other provisions of the naturalization laws be naturalized without making any declaration of intention." (36 Stat. 929.) 18. The Act of August 11, 1916 merely validated entries filed in certain countries. (CHAP. 316, 39 Stat. 926.) 19. In the Act of May 9, 1918, the U.S. Congress amended the naturalization laws to make possible the admission of Filipino navy servicemen, and understandably, because of the war then, it provided: "Seventh. Any native-born Filipino of the age of twenty-one years and upward who has declared his intention to become a citizen of the United States and who has enlisted or may hereafter enlist in the United States Navy or Marine Corps or the Naval Auxiliary Service, and who, after service of not less than three years, may be honorably discharged therefrom, or who may receive an ordinary discharge with recommendation for reenlistment; or any alien, or any Porto Rican not a citizen of the United States, . . . ." (40 Stat. 542.) 20. On September 22, 1922, "An Act Relative to the Naturalization and citizenship of married women" was appareled repeating Section 1994 of the Revised Statutes and otherwise adopting a different attitude as regards the citizenship and naturalization of married women thus: "Be it enacted by the Senate cleaned House of Representatives of the United States of America in Congress assembled, That the right of any woman to become a naturalized citizen of the United States shall not be denied or abridged because of her sex or because she is a married woman. "Sec. 2. That any woman who marries a citizen of the United States after the passage of this Act, or any woman whose husband is naturalized after the passage of this Act, shall not become a citizen of the United States by reason of such marriage or naturalization; but, if eligible to citizenship, she may be naturalized upon full and complete compliance with all the requirements of the naturalization laws, with the following exceptions: (a) No declaration of intention shall be required; (b) In lieu of the five-year period of residence within the United States and the oneyear period of residence within the State or Territory where the naturalization court is held, she shall have resided continuously in the United States Hawaii, Alaska, or Porto Rico for at least one year immediately preceding the filing of the petition.

"Sec. 3. That a woman citizen of the United States shall not cease to be a citizen of the United States by reason of her marriage after the passage of this Act, unless she makes a formal renunciation of her citizenship before a court having jurisdiction over naturalization of aliens; Provided, That any woman citizen who marries an alien ineligible to citizenship shall cease to be a citizen of the United States. If at the termination of the marital status she is a citizen of the United States she shall retain her citizenship regardless of her residence. If during the continuance of the marital status she resides continuously for two years in a foreign State of which her husband is a citizen or subject, or for five years continuously outside the United States, she shall thereafter be subject to the same presumption as is a naturalized citizen of the United States under the second paragraph of section 2 of the Act entitled "An Act in reference to the expatriation of citizens and their protection abroad," approved March 2 1907. Nothing herein shall be construed to repeal or amend the provisions of Revised Statutes 1999 or of section 2 of the Expatriation Act of 1907 with reference to expatriation. "Sec. 4. That a woman who, before the passage of this Act, has lost her United States citizenship by reason of her marriage to an alien eligible for citizenship, may be naturalized as provided by section 2 of this Act: Provided, That no certificate of arrival shall be required to be filed with her petition if during the continuance of the marital status she; shall have resided within the United States. After her naturalization she shall have the same citizenship status as if her marriage had taken place after the passage of this Act.

"Sec. 5. That no woman whose husband is not eligible to citizenship shall be naturalized during the continuance of the marital status. "Sec. 6. That section 1994 of the Revised Statutes and section 4 of the Expatriation Act of 1907 are repealed. Such repeal shall not terminate citizenship acquired or retained under either of such sections nor restore citizenship lost under section 4 of the Expatriation Act of 1907. "Sec. 7. That section 3 of the Expatriation Act of 1901 is repealed. Such repeal shall not restore citizenship lost under such section nor terminate citizenship resumed under such section. A woman who has resumed under such section citizenship lost by marriage shall, upon the passage of this Act, have for all purposes the same citizenship status as immediately preceding her marriage." (Chap. 411, 42 Stat. 10211022.) 21. When "The Code of the Laws of to United States of America of a General and Permanent Character in Force on December 7, 1925" was approved, the provisions, corresponding to the disqualifications for naturalization and the citizenship and naturalization of women embodied therein were: "367. Naturalization of woman; sex or marriage not a bar. — The right of any woman to become a naturalized citizen of the United States shall not be denied or abridged because of her sex or because she is a married woman. ( Sept. 22, 1922, c.411, 1, 42 Stat. 1021.) "368. Same; women marrying citizens or persons becoming naturalized; procedure. — Any woman who marries a citizen of the United States after September 22, 1922, or any woman whose husband is naturalized after that date, shall not become a citizen of the United States by reason of such marriage or naturalization; but, if eligible to

citizenship, she may be naturalized upon full and complete compliance with the following exceptions: (a) No declaration of intention shall be required; (b) In lieu of the five-year period of residence within the United States and the oneyear period of residence within the State or Territory where the naturalization court is held, she shall have resided continuously in the United States, Hawaii, Alaska, or Porto Rico for at least one year immediately preceding the filing of the petition. (Sept. 22, 1922, c. 411, § 2, 42 Stat. 1022.) "369. Same; women who have lost citizenship by Marrying aliens eligible to citizenship; procedure. — A woman, who, before September 22, 1922, has lost her United States citizenship by reason for her marriage to an alien eligible for citizenship, may be naturalized as provided in the preceding section. No certificate of arrival shall be required to be filed with her petition if during the continuance of the marital status she shall have resided within the United Stators. After her naturalization she shall have the same citizenship status as if her marriage had taken place after September 22, 1922. (Swept. 22, 1922, c. 411, § 4, 42 Stat. 1022.) "370. Same; Women married to persons ineligible to citizenship. — No woman whose husband is not eligible to citizenship shall be naturalized during the continuance of the marital status. (Swept. 22, 1922, c. 411, 5, 42 Stat. 1022.) "371. Same, wife of alien declaring becoming insane before naturalization; minor children. — When any alien, who has declared his intention to become a citizen of the United States, becomes insane before he is actually naturalized, and his wife shall thereafter make a homestead entry under the land laws of the United States, she and their minor children may, by complying with the other provisions of the naturalization laws be naturalized without making any declaration of intention. (Feb. 24, 1911, c. 151, 36 Stat. 929.)" (Chap. 9, 44 Stat. 156, 158.) which, of course, must be read together with the provisions on inadmissibility of Chinese, anarchists, polygamists, non-English speaking persons, etc. in Sections 363-365 of the same Code. 22. The Act of May 26, 1926 extended naturalization privileges to alien veterans of World War I, thus: "Be it enacted by the Senate anal House of Representatives of the United States of America in Congress assembled, That (a) as used in this Act, the term "alien veteran" means an individual, a member of the military or naval forces of the United States at any time after April 5, 1917, and before November 12, 1918, who is now an alien not ineligible to citizenship; but does not include (1) any individual at anytime during such period or thereafter separated from such forces under other than honorable conditions, (2) any conscientious objector who performed no military duty whatever or refused to wear the uniform, or (3) any alien at any time during such period or thereafter discharged from the military or naval forces on account of his alienage. (b) Terms defined in the Immigration Act of 1924 shall, when used in this Act, have the meaning assigned to such terms in that Act. "Sec. 2. An alien veteran shall for the purposes of the Immigration Act of 1924 be considered as a non-quota immigrant, but shall be subject to all the other provisions of that Act and of the immigration laws, except that — (a) He shall not be subject to the head tax imposed by section 2 of the Immigration Act of 1917;

(b) He shall not be required to pay any fee under section 2 or section 7 of the Immigration Act of 1924; (c) If otherwise admissible, he shall not be excluded under section 3 of the Immigration Act of 1917, unless excluded under the provisions of that section relating to — (1) Persons afflicted with a loathsome or dangerous contagious disease, except tuberculosis in any form; (2) Polygamy; (3) Prostitutes, procurers, or other like immoral persons; (4) Contract laborers; (5) Persons previously deported; (6) Persons convicted of crime. "Sec. 3. The unmarried child under eighteen years of age, the wife, or the husband, of an alien veteran shall, for the purposes of the Immigration Act of 1924, be considered as a non quota immigrant when accompanying or following within six months to join him, but shall be subject to all other provisions of that Act and of the immigration laws. 'Sec. 4. The foregoing provisions of this Act shall not apply to any alien unless the immigration visa is issued to him before the expiration of one year after the enactment of this Act." (Chap. 398, 44 Stat. 654-655.) 23. The Act of June 21, 1930 authorized repatriation of certain veterans of World War I. (Chap. 559, 46 Stat. 791.) 24. On March 3, 1931, the Act of September 22, 1922 as amended as follows: "Sec. 4.(a) Section 3 of the Act entitled "An Act relative to the naturalization and citizenship of married women," approved September 22, 1922, as amended, is amended to read as follows: 'Sec. 3.(a) A woman citizen of the United States shall not cease to be a citizen of the United States by reason of her marriage after this section, as amended, takes effect, unless she makes a formal renunciation of her citizenship before a court having jurisdiction over naturalization of aliens. '(b) Any woman who before this section, as amended takes effect, has lost her United States citizenship by residence abroad after marriage to an alien or by marriage to an alien ineligible to citizenship may, if she has not acquired any other nationality by affirmative act, be naturalized in the manner prescribed in section 4 of this Act, as amended. Any woman who was a citizen of the United States at birth shall not be denied naturalization under section 4 on account of her race. '(c) No woman shall be entitled to naturalization under section 4 of this Act, as amended, if her United States citizenship originated solely by a reason of her marriage to a citizen of the United States or by reason of the acquisition of United States citizenship by her husband.' "(b) Section 5 of such Act of September 22, 1922, is repealed." (Chap. 442, 46 Stat. 1511-1512.) 25. The Act of May 25, 1932 contained the following somewhat pertinent provisions:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) an alien veteran, as defined in section 1 of the Act of May 26, 1926 (ch. 398, 44 Stat. 654; title 8, sec. 241, U.S. C. Supp. 1), if residing in the United States, be entitled at any time within two years after the enactment of this Act to naturalization upon the same terms, conditions, and exemptions which would have been accorded to such alien if he had petitioned before the armistice of the World War, except that (1) such alien shall be required to prove that immediately preceding the date of this petition he has resided continuously within the United States for at least two years, in pursuance of a legal admission for permanent residence, and that during all such period he has behaved as a person of good moral character; (2) if such admission was subsequent to March 3, 1924, such alien shall file with his petition a certificate of arrival issued by the Commissioner of Naturalization; (3) final action shall not be had upon the petition until at least ninety days have elapsed after filing of such petition; and (4) such alien shall be required to appear and file his petition in person, and to take the prescribed oath of allegiance in open court. Such residence and good moral character shall be proved either by the affidavits of two credible witnesses who are citizens of the United States, or by depositions by two such witnesses made before a naturalization examiner, for each place of residence. "(b) All petitions for citizenship made outside the United States in accordance with the seventh subdivision of section 4 of the Naturalization Act of June 29, 1906, as amended, upon which naturalization has not been heretofore granted, are hereby declared to be invalid for all purposes. "Sec. 2. (a) The seventh subdivision of section 4 of the Naturalization Act of June 29, 1906, as amended, is amended by striking out 'the National Guard or Naval Militia of any State, Territory, or the District of Columbia, or the State Militia in Federal Service.'

"(b) This section shall not be applied in the case of any individual whose petition for naturalization has been filed before the enactment of this Act. "Sec. 3. The last proviso in the first paragraph of the seventh subdivision of section 4 of such Act of June 29, 1906, as amended, is amended by striking out the period at the end thereof and inserting in lieu thereof a semicolon and the following: 'except that this proviso shall not apply in the case of service on American-owned vessels by an alien who has been lawfully admitted to the United States for permanent residence.' "Sec. 4. Section 32 of such Act of June 29, 1906, as amended, is amended by adding at the end thereof the following new subdivisions: '(c) If the name of any naturalized citizen has, subsequent to naturalization, been changed by order of a court of competent jurisdiction, or by marriage, the citizen may, upon the payment to the commissioner of a fee of $10, make application (accompanied by two photographs of the applicant) for a new certificate of citizenship in the new name of such citizen. If the commissioner finds the name of the applicant to have been changed as claimed he shall issue to the applicant a new certificate with one of such photographs of the applicant affixed thereto. '(d) The Commissioner of Naturalization is authorized to make and issue, without fee, certifications of any part of the naturalization records of any court, or of any certificate of citizenship, for use in complying with any statute, State or Federal, or in any judicial proceeding. Any such certification shall be admitted in evidence equally with the

original from which such certification was made in any case in which the original thereof might be admissible as evidence. No such certification shall be made by any clerk of court except upon order of the court.' "Sec. 5. So much of subdivision (a) of section 33 of such Act of June 29, 1906, as amended, as read 'Upon obtaining a certificate from the Secretary of Labor showing the date, place, and manner of arrival in the United States,' is hereby repealed. "Sec. 6. Section 4 of the Act entitled 'An Act to supplement the naturalization laws, and for other purposes,' approved March 2, 1929, is amended by striking out the period at the end thereof and inserting in lieu thereof a semicolon and the following: 'except that no such certificate shall be required if the entry was on or before June 29, 1906.' "Sec. 7. Despite the provisions of subdivision (a) of section 1 of the Act entitled 'An Act making it a felony with penalty for certain aliens to enter the United States of America under certain conditions in violation of law,' approved March 4, 1929, as amended, an alien, if otherwise admissible, shall not be excluded from admission to the United States under the provisions of such subdivision after the expiration of one year after the date of deportation if, prior to his reembarkation at a place outside of the United States, or prior to his application in foreign contiguous territory for admission to the United States, the Secretary of Labor, in his discretion, shall have granted such alien permission to reapply for admission. "Sec. 8. The compilation of the statistics to show races nationalities, and other information, authorized and directed to be prepared by the Commissioner of Naturalization, shall be completed and published at the same time, as near as practicable, as the Publication of the statistics of the 1930 census except that reports covering the census of 1910 shall be completed and submitted not later than January 31, 1933, and reports covering the census of 1920 not later than December 31, 1938. Such statistics shall show the records of registry made under the provisions of the Act entitled 'An Act to supplement the naturalization laws, and for other purposes,' approved March 2, 1929. Payment for the equipment used in preparing such compilation shall be made from appropriations for miscellaneous expenses of the Bureau of Naturalization. "Sec. 9. The Secretary of the Treasury, upon the recommendation of the Secretary of Labor, is authorized to provide quarters without payment of rent, in the building occupied by the Naturalization Service in New York City, for a photographic studio operated by welfare organizations without profit and solely for the benefit of aliens seeking naturalization. Such studio shall be under the supervision of the Commissioner of Naturalization. "Sec. 10. The tenth subdivision of section 4 of the Act of June 29, 1906 (ch. 3592, 34 Stat. 598), as amended by the Act of May 9, 1918 (ch. 69, 40, 40 Stat. 545; U.S.C., title 8 sec. 377), is hereby amended to read as follows: 'Tenth. That any person not an alien enemy, who resided uninterruptedly within the United States during the period of five years next preceding July 1, 1920, and was on that date otherwise qualified to become a citizen of the United States, except that he had not made a declaration of intention required by law and who during or prior to that time, because of misinformation regarding his citizenship status erroneously exercised the rights and performed the duties of a citizen of the United States in good faith, may file the petition for naturalization prescribed by law without making the preliminary declaration of intention required of other aliens, and upon satisfactory proof to the

court that he has so acted may be admitted as a citizen of the United States upon complying in all respects with the other requirements of the naturalization law.' (Chap. 203, 47 Stat. 165-167.) 26. By June 27, 1952, the right of a person to be naturalized could no longer be denied by reason of race or sex or because such person was married, although various disqualifications were still maintained, such as lack understanding, capacity to read and write English, or of the principles of the constitution and form of government of the United States, being opposed to organized government of law, favoring totalitarian forms of government, deserters from the armed forces, etc. (Secs. 1422 to 1426, USCA 8-9, 1953; See also Secs. 1421 et seq., USCA 8, 1970.) B — QUALIFICATIONS Apart from the above disqualifications, the statutes referred tea contained express requirements as to qualifications as follows: (1) The Act of 1790 required residence, good moral character and adherence to the principles of the United States Constitution. (2) That of 1795 required a declaration of intention. residence, adherence to the U.S. Constitution, good moral character and no title of nobility. (3) That of 1798 referred only declaration of intention and residence. (4) That of 1802 required residence, renunciation of allegiance to former government, adherence to U.S. Constitution, good moral character and declaration of intention. (5) That of 1804 was practically I the same as that of 1802. (6) So also were those of 1813, 1816 and 1824. (7) That of 1828 mentioned only residence and declaration of intention. (8) Those of 1855, 1870 and 1888 amended the law in other respects. (9) That of 1906 contained the following provisions: "SEC. 4. That an alien may be admitted to become a citizen of the United States in the following manner and not otherwise: "First. He A hall declare on oath before the clerk of any court authorized by this Act to naturalize aliens, or his authorized deputy, in the district in which such alien resides, two years at least prior to his admission, and after he has reached the age of eighteen years, that it is bona fide his intention to become a citizen of the united States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly, by name, to the prince, potentate, state, or sovereignty of which the alien may be at the time a citizen or subject. And such declaration shall set forth, the name, age, occupation, personal description, place of birth, last foreign residence and allegiance, the date of arrival, the, name of the vessel, if any, in which he came to the United states, and the present place of residence in the United States of said alien: Provided, however, That no alien who, in conformity with the law in force at the date of his declaration, has declared his intention to become a citizen of the United States shall be required to renew such declaration. "Second. Not less than two years nor more than seven years after he has made such declaration of intention he shall make and file, in duplicate, a petition in writing, signed by the applicant in his own handwriting and duly verified, in which petition such applicant shall state his full name, his place of residence (by street and number, if possible), his occupation, and, if possible, the date and place of his birth; the place

from which he emigrated, and the date and place of his arrival in the United States, and, if he entered through a port, the name of the vessel on which he arrived; the time when and the place and name of the court where he declared his intention to become a citizen of the United States; if he is married he shall state the name of his wife and, if possible, the country of her nativity and her place of residence at the time of filing his petition; and if he has children, the name, date, and place of birth and place of residence of each child living at the time of his petition: Provided, That if he has filed his declaration before the passage of this Act he shall not be required to sign the petition in his own handwriting. "The petition shall set forth that he is not a disbeliever in or opposed to organized government, or a member of or affiliated with any organization or body of persons teaching disbelief in or opposed to organized government, a polygamist or believer in the practice of polygamy, and that it is his intention to become a citizen of the United States and to renounce absolutely and forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly by name to the prince, potentate, state, or sovereignty of which he at the time of filing of his petition may be a citizen or subject, and that it is his intention to reside permanently within the United States, and whether or not he has been denied admission a, a citizen of the United States, and, if denied, the ground or grounds of such denial, the court or courts in which such decision was rendered, and that the cause for such denial has since been cured or removed, and every fact material to his naturalization ailed required to be proved upon the final hearing of his application.

"The petition shall also be verified by the affidavits of at least two credible witnesses, who are citizens of the United States, and who shall state in their affidavits that they have personally known the applicant to be a resident of the United States for a period of at least five years continuously, and of the State, Territory, or district in which the application is made for a period of at least one year immediately preceding the date of the filing of his petition, and that they each have personal knowledge that the petitioner is a person of good moral character, and that he is in every way qualified, in their opinion, to be admitted as a citizen of the United States. "At the time of filing of his petition there shall be filed with the clerk of the court a certificate from the Department of Commerce and Labor, if the petitioner arrives in the United States after the passage of this Act, stating the date, place and manner of his arrival in the United States, and the declaration of intention of such petitioner, which certificate and declaration shall be attached to and made a part of said petition. "Third. He shall, before he is admitted to citizenship, declare on oath in open court that he will support the Constitution of the United States, and he absolutely and entirely renounces and abjures all allegiance and fidelity to any foreign prince potentate, state, or sovereignty, and particularly by name to the prince, potentate, state, or sovereignty of which he was before a citizen or subject; that he will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same. "Fourth. It shall be made to appear to the satisfaction of the court admitting any alien to citizenship that immediately preceding the date of his application he has resided continuously within the United States five years at least, and within the State or Territory where such court is at the time held one year at least, and that during that time he has behaved as a man of good moral character, attached to the principles of

the Constitution of the United States, and well disposed to the good order and happiness of the same. In addition to the oath of the applicant, the testimony of at least two witnesses, citizens of the United States, as to the facts of residence, moral character, and attachment to the principles of the Constitution shall be required, and the name, ,place of residence, and occupation of each witness shall be set forth in the record. "Fifth. In case the alien applying to be admitted to citizenship has borne any hereditary title, or has been of any of the orders of nobility in the kingdom or state from which he came, he shall, in addition to the above requisites make an express renunciation of his title or order of nobility in the court to which his application is made, and his renunciation shall be recorded in the court. "Sixth. When any alien who has declared his intention to become a citizen of the United States dies before he is actually naturalized the widow and minor children of such alien may, by complying with the other provisions of this Act, be naturalized without making any declaration of intention." (34 stat. 596-98.) 10. Those of 1911 and 1916 contained amendments as to other matters. 11. That of 1918 provided for different qualifications for Filipinos, Porto Ricans, etc. for naturalization in addition to service in the U.S. Navy or Philippine Constabulary. 12. Those of years after 1922 when Section 1994 was repealed would have no material bearing in this case. Amen. ||| (Moy Ya Lim Yao v. Commissioner of Immigration, G.R. No. L-21289, [October 4, 1971], 148-B PHIL 773-877) [A.C. No. 533 . April 29, 1968.] IN RE: FLORENCIO MALLARE Rosendo J. Tansisin for the respondent. Hon. Commissioner of Immigration Martiniano P. Vivo for the complainant. SYLLABUS 1. CIVIL LAW; MARRIAGE; PRESUMPTION OF MARRIAGE. — Persons living together as husband and wife are presumed to be married to each other (Rule 131, par. bb). Every intendment of law and fact leans towards the validity of marriage and the legitimacy of children (Art. 220, Civil Code), 2. CITIZENSHIP; EVIDENCE; PROBATIVE VALUE OF LANDING CERTIFICATE, INADEQUATE. — A landing certificate issued under section 7 of Act 702 by the Collector of Customs is based on an administrative ex parte determination of the evidence presented and the facts as stated by the applicant. As such, it carries little evidentiary weight as to the citizenship of the applicant's spouse. 3. ID.; AFFIDAVIT EXECUTED BY ONE CLAIMING ELECTION OF PHILIPPINE CITIZENSHIP, SELF-SERVING. — The affidavit executed by respondent's father stating that he elected to be a Filipino when he reached the age of majority is not a substitute for a duly recorded election of Philippine citizenship, assuming that the affiant was qualified to so elect. It is self-serving as it was

executed for the purpose of making a change in a miscellaneous lease application where he had previously stated that he is a citizen of China; neither can it be regarded as a re-affirmation of an alleged election of citizenship since no such previous election was proved to have existed. 4. ID.; EXERCISE OF SUFFRAGE DOES NOT ALTER CITIZENSHIP. — Registration as a voter may indicate the person's desire to exercise a right appertaining exclusively to Filipino citizens but this does not alter his real citizenship which in this jurisdiction is determinable by blood (jus sanguinis). 5. ID.; WHERE FATHER IS NOT A CITIZEN, ALL HIS CHILDREN REMAIN ALIENS, INCLUDING THE LATTER'S MOTHER. — Where the evidence is clearly preponderant, if not overwhelming, that the respondent's father was and remained a Chinese, the respondent's mother, admittedly a Chinese retained her original citizenship and their offsprings, respondent included, are likewise Chinese nationals through and through. 6. ID.; CIVIL CASE FOR RESCISSION OF SALE AND RECOVERY OF LAND ON GROUND THAT VENDEE IS A CHINESE, NOT RES JUDICATA ON ISSUE OF CITIZENSHIP. — In Civil Case No. 329-G against respondent and the latter's brothers and sisters to recover a piece of land from them on the ground that they were Chinese the Court declared them to be natural born Filipinos and that the sale to them was valid. Such declaration did not constitute res judicata. The pronouncement was not within the court's competence because the declaration of citizenship was not the relief sought. Besides, at the time, the pronouncement was beyond judicial power, there being no law authorizing the institution of a judicial proceeding to declare the citizenship of an individual. 7. ID.; ACTIONS TO BE DECLARED FILIPINO CITIZEN OTHER THAN BY NATURALIZATION; EFFECT. — Civil Case No. 329-G, an action to declare invalid a deed of sale of land to vendees who were supposed to be Chinese citizens, and Special Proceeding No. 3925, an action for the correction of records of birth, are not modes of acquiring Philippine citizenship; neither is the citizenship of the respondent converted to Filipino because certain government agencies recognized him as such. He remains, by jus sanguinis, a Chinese until he is naturalized. 8. ID.; APPEARANCE OF FISCAL IN A SPECIAL PROCEEDING TO CORRECT CITIZENSHIP IN A RECORD OF BIRTH; EFFECT. — The appearance of the fiscal in a special proceeding for the correction of respondents' records of birth does not bind the State to the order of the correction thereof because the proceeding was not instituted as in rem and, under no law had the State given its consent to be a party thereto.

DECISION

REYES, J.B.L., J p: The respondent, Florencio Mallare, was admitted to the practice of law on 5 March 1962. In his verified petition to take the bar examinations in 1961, he alleged that he is a citizen of the Philippines and that "his father is Esteban Mallare and his mother is Te Na, both Filipino citizens". (Personal Record, No. 17450, Bar Division) On 16 July 1962, the then Acting Commissioner of Immigration Martiniano P. Vivo denounced the respondent to this Court as a Chinaman masquerading as a Filipino citizen and requested that the matter be investigated thoroughly and if the respondent fails to show that he has legally become a Filipino, steps be taken for striking his name from the roll of persons authorized to practice law. Acting upon the request, this Court, on 9 August 1962, referred the matter to its Legal Officer-Investigator for investigation and report. An investigation was thus held wherein the relator or complainant and the respondent appeared and adduced their respective evidence.

The position of the respondent-lawyer is that he is a Filipino citizen based on the supposed citizenship of his father, Esteban Mallare, alleged to be a Filipino citizen by choice, because he was the illegitimate son of a Chinese father and a Filipina mother, Ana Mallare; and that the respondent's mother, Te Na, a Chinese, followed the citizenship of her husband upon their marriage. The respondent's second theory is that, having been declared a Filipino citizen in a final judgment in 1960 by the Court of First Instance of Quezon province,in its Civil Case No. 329-G (entitled, Vitaliano Itable vs. Artemio, Florencio, Paciencia, Esperanza and Raymundo Mallare) and his birth record, wherein he was originally registered as a Chinese, has likewise been ordered corrected to Filipino, by final judgment in Special Proceeding No. 3925 of the same court, 1 his Filipino citizenship is conclusive, res judicata and binding to the government and to the world. Complainant Vivo disputed, on the facts, the respondent's first theory, and, on the second theory, claimed that the aforestated Civil Case No. 329-G (Itablevs. Mallare) was a simulated action calculated to obtain a judicial declaration of Philippine citizenship and, after having obtained the said declaration, the respondent, together with his brothers and sisters, utilized the declaration to change their birth and alien registration the better to hide their true nationality, which is Chinese. The respondent denies the charge of simulating an action, and by way of defense, points out that Civil Case No. 329-G and Special Proceeding No. 3925 are not subject to collateral attack and, since his birth record and alien registration (and that of his brothers and sisters) have been corrected and cancelled, respectively, the question of their citizenship is now moot and academic. On respondent's first claim to citizenship by blood, the earliest datum that can be stated about the respondent's supposed ancestry is that in 1902, 2 ex-municipal president Rafael Catarroja, then eight years old, met for the first time Ana Mallare, the supposed paternal grandmother of the respondent, inMacalelon, Quezon. He had not seen her deliver or give birth to the baby boy, Esteban Mallare, father of the respondent, but met the supposed Filipina mother and Esteban Mallare years later when the boy was already (8) years old. (Annex "8", pp. 10-12, t.s.n., Sept. 24, 1959, Civil Case No. 329-G, CFI of Quezon Province). There is no evidence that Ana Mallare was an "inhabitant of the Philippine Islands continuing to reside therein who was a Spanish subject on the eleventh day of April, eighteen hundred and ninety-nine", as required by the Philippine Bill of July 1, 1902 and she cannot, therefore, be considered a Filipina. That witness Catarroja, the respondent, and the latter's brothers and sisters, stated that Ana Mallare was a Filipina, as well as their testimonies inthe civil case that she had not married her Chinese husband and that she is the true mother of Esteban Mallare, are more of opinion or conjecture than fact, utterly insufficient to overcome the presumption that persons living together as husband and wife are married to each other (Rule 131, par bb). "Every intendment of law and fact", says Article 220 of our Civil Code "leans toward the validity of marriage and the legitimacy of children." The respondent relies on three documents as indicative of the alleged Philippine citizenship of his father, Esteban Mallare. On 7 July 1926, Te Na, respondent's Chinese mother, was described in a landing certificate of residence issued to her, as "wife of P.I. citizen" and as "wife of Dy Esteban, P.I, citizen". (Annex "16", being Exh. "3" in Civil Case No, 329-G). On 20 February 1939, Esteban Dy Mallare executed an affidavit stating therein that when he reached the age of majority he had "definitely elected to be a Filipino citizen following the citizenship of my mother." (Annex "4", being Exh. "1" in Civil Case No. 329-G) And, in 1928, Esteban Mallare was a registered voter in Macalelon, Quezon. (Annex "7", being Exh. "2" in Civil Case No, 329-G). A landing certificate of residence issued under Section 7, Act 702 by the Collector of Customs is based upon an administrative ex parte determination of the evidence presented and the facts as stated by the applicant and, therefore, carries little evidentiary weight as to the citizenship of the applicant's husband.In the instant case, the truth of Te Na's declarations when she applied for the

landing certificate could have been inquired into had she been presented as a witness in these proceedings, but this was not done. The affidavit of Esteban Mallare, besides being self-serving, is not a substitute for a duly recorded election of Philippine citizenship, assuming that the affiant was qualified to so elect. When Esteban executed it, he was already thirty-six (36) years old and he executed it for the purpose, stated in the last paragraph, of making a change in a miscellaneous lease application wherein he had previously stated that he is a citizen of China. Nor can it be regarded as a re- affirmation of an alleged election of citizenship, since no such previous election was proven to have existed.

Esteban Mallare's registration as a voter indicates his desire to exercise a right appertaining exclusively to Filipino citizens but this does not alter his real citizenship, which, in this jurisdiction, is determinable by his blood (jus sanguinis). Against these pretensions of Philippine citizenship, all the five (5) known children of the spouses Esteban Mallare and Te Na, Artemio, Esperanza, Florencio, Paciencia and Raymundo, were registered at birth as children of a Chinese father and a Chinese mother and with the added detail that their parents were born in China. The birth certificate of Esperanza Mallare (Exh. "F") who was born on 25 October 1939, is particularly significant in this regard, because it bears the father's own signature. If Esteban Mallare was indeed a Filipino by choice, as stated by him in his aforementioned affidavit (Annex 4), then he should have so statedin this birth certificate of his daughter; instead, he admits, against his own interest, that he is a Chinese. Esteban Mallare's own death certificate (Exh. "C"), over the signature of his son, Artemio Mallare, shows against Artemio's own interest, that Esteban was a Chinese, born in Fookiang, China; that he died on 5 June 1945, at the age of 42 and was buried at the Chinese cemetery, having resided in the Philippines for 28 years (Exh. "C"), i.e., only since 1917. The affidavit of Artemio denying that the signature in the aforesaid death certificate is his, is inadmissible and, therefore, should be rejected, as it was offered in evidence for the first time after trial was closed, as an annex to the respondent's memorandum with the investigator. The affiant was not examined thereon, and the affidavit is self-serving besides. The entire family, consisting of the father, mother and their four (4) children (Raymundo was not yet born) were registered as aliens in 1942 in the then Division of Alien Statistics, pursuant to the proclamation of the Commander-in-Chief of the Imperial Japanese Forces in the Philippines and Executive Order No. 25 of the then Executive Commission (See letter of Jan. 18, 1963 from the Bureau of Immigration to the Legal Officer Investigator; see also pp. 171 and 180-181, Vol. 1, No. 4, Official Gazette, published during Japanese occupation.)In addition, the respondent himself was again registered as an alien in 1950, his application thereto bearing his thumbprints and stating therein that he is a Chinese; that he belongs to the yellow race and that he had used these other names: "Tan Jua Gae", "Enciong" and "Jua Gao" (Exh. "N"). He had been a teacher in the Candon Chinese School (t.s.n., p. 17, Oct. 3, 1962). His explanation that it was his mother who registered him as an alien is flimsy; and, as stated hereinbefore, he did not present his mother as a witness. The evidence is thus clearly preponderant, if not overwhelming that the respondent's father, Esteban Mallare or "Mallari", also known as "Esteban Dy", "Esteban Dy Mallare" and "Esteban Tan", was and remained a Chinese until he died; consequently, the respondent's mother, admittedly a Chinese, retained her original citizenship and their offspring, respondent, Florencio Mallare, together with his brothers and sisters, are likewise Chinese nationals, through and through. We now turn to respondent's second defense of res judicata. There are certain marks of simulation that attended Civil Case No. 329-G, and indicating that it was brought to circumvent a previous unfavorable opinion of the Secretary of Justice denying cancellation of Mallare's alien registration (Op.

No. (90, Ser. of 1955, dated March 31, 1955). The said civil case was instituted by the vendor (Vitaliano Itable) of a certain parcel of land to rescind the sale and recover the land sold from the vendees, who are the herein respondent and his brothers and sisters, on the ground that the said vendees are Chinese. The vendor-plaintiff practically abandoned the case; the vendees- defendants submitted evidence purporting to show their Filipino citizenship, and plaintiff neither cross-examined nor presented rebuttal proof. After trial, the court, declaring the vendees as natural-born Filipino citizens, decided for the validity of the sale of the parcel of land. On the basis of the foregoing declaration by the Court of First Instance of Quezon Province, the respondent and his brothers and sisters filed Special Proceeding No. 3925, in the same court, but in a different branch, for the "correction" of their birth records. The local fiscal, representing the Solicitor General, appeared but did not oppose the petition; wherefore, after hearing, the court granted the petition. Based on the same judicial declaration, the then Commissioner of Immigration De la Rosa (not the complainant) cancelled on June 8, 1960, the alien registration of the herein respondent and that of his brothers and sisters, and issued to them identification certificates recognizing them as Filipino citizens. Then Solicitor General Alafriz took the same position. Civil Case No. 329-G and Special Proceeding No. 3925 are not modes of acquiring Philippine citizenship; neither is the Chinese citizenship of the respondent converted to Filipino because certain government agencies recognized him as such. He remains, by jus sanguinis, a Chinese until he is naturalized. It is noted that the declaration that the respondent and his brothers and sisters are Filipino citizens is stated in the dispositive portion of the decision in Civil Case No. 329-G, which was an action in personam. The pronouncement was not within the court's competence, because the declaration of the citizenship of these defendants was not the relief that was sought. At the time, the pronouncement was beyond judicial power, there being no law authorizing the institution of a judicial proceeding to declare the citizenship of an individual (Danilo Channie Tan v. Republic, L-14159, April 18, 1960; Palaran v. Republic, L-15047, Jan. 30, 1962; Tan Yu Chin v. Republic, L-15775, April 29, 1961; Tan v. Republic, L-16108, October 31, 1961; Santiago vs. Commissioner, L-14653, Jan. 31, 1963; Commissioner vs. Domingo, L-21274, July 31, 1963; Lao Yap Diok, et al., v. Republic, L19107-09, Sept. 30, 1964). In the basic case Channie Tan vs. Republic, ante, this Court ruled as follows: "Under our laws, there can be no action or proceeding for the judicial declaration of the citizenship of an individual. Courts of justice exist for the settlement of justiciable controversies, which imply a given right, legally demandable and enforceable, an act or omission violative of said right, and a remedy granted or sanctioned by law, for said breach of right. As an incident only of the adjudication of the rights of the parties to a controversy, the court may pass upon, and make a pronouncement relative to, their status. Otherwise, such a pronouncement is beyond judicial power. Thus, for instance, no action or proceeding may be instituted for a declaration to the effect that plaintiff or petitioner is married, or single, or a legitimate child, although a finding thereon may be made as a necessary premise to justify a given relief available only to one enjoying said status. At times, the law permits the acquisition of a given status, such as naturalization, by judicial decree. But, there is no similar legislation authorizing the institution of a judicial proceeding to declare that a given person is part of our citizenry." (Tan vs. Republic, G. R. No. L-14159, April 18, 1960, reiterated in G.R. No. L-15775, April 29, 1961). The said judicial declaration 3 was merely an incident to the adjudication of the rights of the parties to the controversy over land ownership. Their citizenship was not the thing adjudicated in the judgment and the declaration that they are Filipinos was but a necessary premise for the court to arrive at a

conclusion that the sale of the realty was valid as between the parties. Not being the thing directly adjudicated, their declared citizenship is not res judicata, and cannot become conclusive. The appearance of the fiscal, representing the Solicitor General, in Special Proceeding No. 3925 does not bind the state to the order of "correction" of the birth records because the proceeding was not instituted as in rem and, under no law had the state given its consent to be party thereto. For this reason, the fiscal's appearance was an unauthorized one. It is noteworthy that in neither case relied upon by the respondent does it appear that his claim for citizenship was given adequate publication so as to apprise all concerned and give them opportunity to contest it or supply the corresponding public office any derogatory data that might exist against the alleged citizenship. Hence, neither decision constitutes res judicata on the issue of respondent's alleged Filipino nationality. And certainly, the Supreme Court, acting pursuant to its inherent and constitutional authority, may not be precluded from inquiring into the citizenship of persons admitted to the practice of law, independent of any court's findings in the cases or proceedings brought or instituted therein. IN VIEW OF ALL THE FOREGOING, the respondent Florencio Mallare is hereby declared excluded from the practice of law; his admission to the Philippine bar is revoked and he is hereby ordered to return immediately to this Court the lawyer's diploma previously issued to him. Let a copy of this decision be furnished, when it becomes final, to me Secretary of Justice, for such action as may be deemed warranted, and let another copy be sent to the Local Civil Registrar of Macalelon, Quezon, for purposes of record in the corresponding civil registry of births. SO ORDERED. ||| (In re Mallare, A.C. No. 533, [April 29, 1968], 131 PHIL 817-827) [G.R. No. 87193. June 23, 1989.] JUAN GALLANOSA FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE, respondents. J .L. Misa & Associates for petitioner. Lladoc, Huab & Associates for private respondent.

DECISION

CRUZ, J p: Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January 22, 1988, and assumed office in due time. On October 27, 1988, the league of Municipalities, Sorsogon Chapter (hereafter, League), represented by its President, Salvador Estuye, who was also suing in his personal capacity, filed with the Commission on Elections a petition for the annulment of Frivaldo's election and proclamation on the ground that he was not a Filipino citizen, having been naturalized in the United States on January 20,1983. In his answer dated May 22, 1988, Frivaldo admitted that he was naturalized in the United States as alleged but pleaded the special and affirmative defenses that he had sought American citizenship only to protect himself against President Marcos. His naturalization, he said, was "merely forced upon himself as a means of survival against the

unrelenting persecution by the Martial Law Dictator's agents abroad." He added that he had returned to the Philippines after the EDSA revolution to help in the restoration of democracy. He also argued that the challenge to his title should be dismissed, being in reality a quo warranto petition that should have been filed within ten days from his proclamation, in accordance with Section 253 of the Omhibus Election Code. The League, moreover, was not a proper party because it was not a voter and so could not sue under the said section. prLL Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent Commission on Elections decided instead by its Order of January 20, 1988, to set the case for hearing on the merits. His motion for reconsideration was denied in another Order dated February 21, 1988. He then came to this Court in a petition for certiorari and prohibition to ask that the said orders be set aside on the ground that they had been rendered with grave abuse of discretion. Pending resolution of the petition, we issued a temporary order against the hearing on the merits scheduled by the COMELEC and at the same time required comments from the respondents. In their Comment, the private respondents reiterated their assertion that Frivaldo was a naturalized American citizen and had not reacquired Philippine citizenship on the day of the election on January 18, 1988. He was therefore not qualified to run for and be elected governor. They also argued that their petition in the Commission on Elections was not really for quo warranto under Section 253 of the Omnibus Election Code. The ultimate purpose was to prevent Frivaldo from continuing as governor, his candidacy and election being null and void ab initio because of his alienage. Even if their petition were to be considered as one for quo warranto, it could not have been filed within ten days from Frivaldo's proclamation because it was only in September 1988 that they received proof of his naturalization. And assuming that the League itself was not a proper party, Estuye himself, who was suing not only for the League but also in his personal capacity, could nevertheless institute the suit by himself alone. Speaking for the public respondent, the Solicitor General supported the contention that Frivaldo was not a citizen of the Philippines and had not repatriated himself after his naturalization as an American citizen. As an alien, he was disqualified from public office in the Philippines. His election did not cure this defect because the electorate of Sorsogon could not amend the Constitution, the Local Government Code, and the Omnibus Election Code. He also joined in the private respondent's argument that Section 253 of the Omnibus Election Code was not applicable because what the League and Estuye were seeking was not only the annulment of the proclamation and election of Frivaldo. He agreed that they were also asking for the termination of Frivaldo's incumbency as governor of Sorsogon on the ground that he was not a Filipino. In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his naturalization as an American citizen was not "impressed with voluntariness." In support he cited the Nottebohm Case, [1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a German national's naturalization in Liechtenstein was not recognized because it had been obtained for reasons of convenience only. He said he could not have repatriated himself before the 1988 electionsbecause the Special Committee on Naturalization created for the purpose by LOI No. 270 had not yet been organized then. His oath in his certificate of candidacy that he was a natural-born citizen should be a sufficient act of repatriation. Additionally, his active participation in the 1987 congressionalelections had divested him of American citizenship under the laws of the United States, thus restoring his Philippine citizenship. He ended by reiterating his prayer for the rejection of the move to disqualify him for being time-barred under Section 253 of the Omnibus Election Code. LLpr Considering the importance and urgency of the question herein raised, the Court has decided to resolve it directly instead of allowing the normal circuitous route that will after all eventually end with this Court, albeit only after a long delay. We cannot permit this delay. Such delay will be inimical to the public interest and the vital principles of public office to be here applied.

It is true that the Commission on Elections has the primary jurisdiction over this question as the sole judge of all contests relating to the election, returns and qualifications of the members of the Congress and elective provincial and city officials. However, the decision on Frivaldo's citizenship has already been made by the COMELEC through its counsel, the Solicitor General, who categorically claims that Frivaldo is a foreigner. We assume this stance was taken by him after consultation with the public respondent and with its approval. It therefore represents the decision of the COMELEC itself that we may now review. Exercising our discretion to interpret the Rules of Court and the Constitution, we shall consider the present petition as having been filed in accordance with Article IX-A, Section 7, of the Constitution, to challenge the aforementioned Orders of the COMELEC. The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen of the Philippines at the time of his election on January 18,1988, as provincial governor of Sorsogon. All the other issues raised in this petition are merely secondary to this basic question. The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all public officials and employees owe the State and the Constitution "allegiance at all times" and the specific requirement in Section 42 of the Local Government Code that a candidate for local elective office must be inter alia a citizen of the Philippines and a qualified voter of the constituency where he is running. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under Article V, Section 1, of the Constitution. In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a "natural-born" citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however, that he was naturalized as a citizen of the United States in 1983 per the following certification from the United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A. OFFICE OF THE CLERK UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA September 23, 1988 TO WHOM IT MAY CONCERN: Our records show that JUAN GALLANOSA FRIVALDO, born on October 20, 1915, was naturalized in this Court on January 20, 1983, and issued Certificate of Naturalization No. 11690178. Petition No. 280225. Alien Registration No. A23 079 270. Very truly yours, WILLIAM L. WHITTAKER Clerk by: (Sgd.) ARACELI V. BARENG Deputy Clerk This evidence is not denied by the petitioner. In fact, he expressly admitted it in his answer. Nevertheless, as earlier noted, he claims it was "forced" on him as a measure of protection from the persecution of the Marcos government through his agents in the United States. cdll

The Court sees no reason not to believe that the petitioner was one of the enemies of the Marcos dictatorship. Even so, it cannot agree that as a consequence thereof he was coerced into embracing American citizenship. His feeble suggestion that his naturalization was not the result of his own free and voluntary choice is totally unacceptable and must be rejected outright. There were many other Filipinos in the United States similarly situated as Frivaldo, and some of them subject to greater risk than he, who did not find it necessary — nor do they claim to have been coerced — to abandon their cherished status as Filipinos. They did not take the oath of allegiance to the United States, unlike the petitioner who solemnly declared "on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty of whom or which I have heretofore been a subject or citizen," meaning in his case the Republic of the Philippines. The martyred Ninoy Aquino heads the impressive list of those Filipinos in exile who, unlike the petitioner, held fast to their Philippine citizenship despite the perils of their resistance to the Marcos regime.

The Nottebohm case cited by the petitioner invoked the international law principle of effective nationality which is clearly not applicable to the case at bar. This principle is expressed in Article 5 of the Hague Convention of 1930 on the Conflict of Nationality Laws as follows: prcd Art. 5. Within a third State a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any convention in force, a third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected. Nottebohm was a German by birth but a resident of Guatemala for 34 years when he applied for and acquired naturalization in Liechtenstein one month before the outbreak of World War II. Many members of his family and his business interests were in Germany. In 1943, Guatemala, which had declared waron Germany, arrested Nottebohm and confiscated all his properties on the ground that he was a German national. Liechtenstein thereupon filed suit on his behalf, as its citizen, against Guatemala. The International Court of Justice held Nottebohm to be still a national of Germany, with which he was more closely connected than with Liechtenstein. cdphil That case is not relevant to the petition before us because it dealt with a conflict between the nationality laws of two states as decided by a third state. No third state is involved in the case at bar; in fact, even the United States is not actively claiming Frivaldo as its national. The sole question presented to us is whether or not Frivaldo is a citizen of the Philippines under our own laws, regardless of other nationality laws. We can decide this question alone as sovereign of our own territory, conformably to Section 1 of the said Convention providing that "it is for each State to determine under its law who are its nationals." It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein whereas in the present case Frivaldo is rejecting his naturalization in the United States. If he really wanted to disavow his American citizenship and reacquire Philippine citizenship, the petitioner should have done so in accordance with the laws of our country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. While Frivaldo does not invoke either of the first two methods, he nevertheless claims he has reacquired Philippine citizenship by virtue of a valid repatriation. He claims that by actively participating in the elections in this country, he automatically forfeited American citizenship under the

laws of the United States. Such laws do not concern us here. The alleged forfeiture is between him and the United States as his adopted country. It should be obvious that even if he did lose his naturalized American citizenship, such forfeiture did not and could not have the effect of automatically restoring his citizenship in the Philippines that he had earlier renounced. At best, what might have happened as a result of the loss of his naturalized citizenship was that he became a stateless individual. Frivaldo's contention that he could not have repatriated himself under LOI 270 because the Special Committee provided for therein had not yet been constituted seems to suggest that the lack of that body rendered his repatriation unnecessary. That is far-fetched if not specious. Such a conclusion would open the floodgates, as it were. It would allow all Filipinos who have renounced this country to claim back their abandoned citizenship without formally rejecting their adopted state and reaffirming their allegiance to the Philippines. It does not appear that Frivaldo has taken these categorical acts. He contends that by simply filing his certificate of candidacy he had, without more, already effectively recovered Philippine citizenship. But that is hardly the formal declaration the law envisions — surely, Philippine citizenship previously disowned is not that cheaply recovered. If the Special Committee had not yet been convened, what that meant simply was that the petitioner had to wait until this was done, or seek naturalization by legislative or judicial proceedings. The argument that the petition filed with the Commission on Elections should be dismissed for tardiness is not well-taken. The herein private respondents are seeking to prevent Frivaldo from continuing to discharge his office of governor because he is disqualified from doing so as a foreigner. Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. If, say, a female legislator were to marry a foreigner during her term and by her act or omission acquires his nationality, would she have a right to remain in office simply because the challenge to her title may no longer be made within ten days from her proclamation? It has been established, and not even denied, that the evidence of Frivaldo's naturalization was discovered only eight months after his proclamation and his title was challenged shortly thereafter. This Court will not permit the anomaly of a person sitting as provincial governor in this country while owing exclusive allegiance to another country. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state. LexLib It is true as the petitioner points out that the status of the natural-born citizen is favored by the Constitution and our laws, which is all the more reason why it should be treasured like a pearl of great price. But once it is surrendered and renounced, the gift is gone and cannot be lightly restored. This country of ours, for all its difficulties and limitations, is like a jealous and possessive mother. Once rejected, it is not quick to welcome back with eager arms its prodigal if repentant children. The returning renegade must show, by an express and unequivocal act, the renewal of his loyalty and love. WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is hereby declared not a citizen of the Philippines and therefore DISQUALIFIED from serving as Governor of the Province of Sorsogon. Accordingly, he is ordered to vacate his office and surrender the same to the duly elected

Vice-Governor of the said province once this decision becomes final and executory. The temporary restraining order dated March 9, 1989, is LIFTED. SO ORDERED. ||| (Frivaldo v. Commission on Elections, G.R. No. 87193, [June 23, 1989], 255 PHIL 934-947) [G.R. No. 142840. May 7, 2001.] ANTONIO BENGSON III, petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C. CRUZ, respondents.

DECISION

KAPUNAN, J p: The citizenship of respondent Teodoro C. Cruz is at issue in this case, in view of the constitutional requirement that "no person shall be a Member of the House of Representatives unless he is a natural-born citizen." 1 Respondent Cruz was a natural-born citizen of the Philippines. He was born in San Clemente, Tarlac, on April 27, 1960, of Filipino parents. The fundamental law then applicable was the 1935 Constitution. 2 On November 5, 1985, however, respondent Cruz enlisted in the United States Marine Corps and, without the consent of the Republic of the Philippines, took an oath of allegiance to the United States. As a consequence, he lost his Filipino citizenship for under Commonwealth Act No. 63, Section 1(4), a Filipino citizen may lose his citizenship by, among others, "rendering service to or accepting commission in the armed forces of a foreign country." Said provision of law reads: SECTION 1. How citizenship may be lost. — A Filipino citizen may lose his citizenship in any of the following ways and/or events: xxx xxx xxx (4) By rendering services to, or accepting commission in, the armed forces of a foreign country: Provided, That the rendering of service to, or the acceptance of such commission in, the armed forces of a foreign country, and the taking of an oath of allegiance incident thereto, with the consent of the Republic of the Philippines, shall not divest a Filipino of his Philippine citizenship if either of the following circumstances is present: (a) The Republic of the Philippines has a defensive and/or offensive pact of alliance with said foreign country; or (b) The said foreign country maintains armed forces on Philippine territory with the consent of the Republic of the Philippines: Provided, That the Filipino citizen concerned, at the time of rendering said service, or acceptance of said commission, and taking the oath of allegiance incident thereto, states that he does so only in connection with his service to said foreign country; And provided, finally, That any Filipino citizen who is rendering service to, or is commissioned in, the armed forces of a foreign country under any of the circumstances mentioned in paragraph (a) or (b), shall not be permitted to participate nor vote in any election of the Republic of the Philippines during the period of his service to, or commission in, the armed forces of said country. Upon his discharge from the service of the said foreign country, he shall

be automatically entitled to the full enjoyment of his civil and political rights as a Filipino citizen . . . . Whatever doubt that remained regarding his loss of Philippine citizenship was erased by his naturalization as a U.S. citizen on June 5, 1990, in connection with his service in the U.S. Marine Corps. On March 17, 1994, respondent Cruz reacquired his Philippine citizenship through repatriation under Republic Act No. 2630. 3 He ran for and was elected as the Representative of the Second District of Pangasinan in the May 11, 1998 elections. He won by a convincing margin of 26,671 votes over petitioner Antonio Bengson III, who was then running for reelection. Subsequently, petitioner filed a case for Quo Warranto Ad Cautelam with respondent House of Representatives Electoral Tribunal (HRET) claiming that respondent Cruz was not qualified to become a member of the House of Representatives since he is not a natural-born citizen as required under Article VI, Section 6 of the Constitution. 4 On March 2, 2000, the HRET rendered its decision 5 dismissing the petition, for quo warranto and declaring respondent Cruz the duly elected Representative of the Second District of Pangasinan in the May 1998 elections. The HRET likewise denied petitioner's motion for reconsideration of the decision in its resolution dated April 27, 2000. 6 Petitioner thus filed the present petition for certiorari assailing the HRET's decision on the following grounds: 1. The HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it ruled that private respondent is a natural-born citizen of the Philippines despite the fact that he had ceased being such in view of the loss and renunciation of such citizenship on his part.SDEHCc 2. The HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it considered private respondent as a citizen of the Philippines despite the fact that he did not validly acquire his Philippine citizenship. 3. Assuming that private respondent's acquisition of Philippine citizenship was invalid, the HRET committed serious errors and grave abuse of discretion, amounting to excess of jurisdiction, when it dismissed the petition despite the fact that such reacquisition could not legally and constitutionallyrestore his natural-born status. 7 The issue now before us is whether respondent Cruz, a natural-born Filipino who became an American citizen, can still be considered a natural-born Filipino upon his reacquisition of Philippine citizenship. Petitioner asserts that respondent Cruz may no longer be considered a natural-born Filipino since he lost his Philippine citizenship when he swore allegiance to the United States in 1995, and had to reacquire the same by repatriation. He insists that Article IV, Section 2 of the Constitution expressly states that natural-born citizens are those who are citizens from birth without having to perform any act to acquire or perfect such citizenship. Respondent on the other hand contends that he reacquired his status as a natural-born citizen when he was repatriated since the phrase "from birth" in Article IV, Section 2 refers to the innate, inherent and inborn characteristic of being a natural-born citizen. The petition is without merit. The 1987 Constitution enumerates who are Filipino citizens as follows:

(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution; (2) Those whose fathers or mothers are citizens of the Philippines; (3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority, and (4) Those who are naturalized in accordance with law. 8 There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways of acquiring citizenship correspond to the two kinds of citizens: the natural-born citizen, and the naturalized citizen. A person who at the time of his birth is a citizen of a particular country, is a natural-born citizen thereof. 9 As defined in the same Constitution,natural-born citizens "are those citizens of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship." 10 On the other hand, naturalized citizens are those who have become Filipino citizens through naturalization, generally under Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law, which repealed the former Naturalization Law (Act No. 2927), and by Republic Act No. 530. 11 To be naturalized, an applicant has to prove that he possesses all the qualifications 12 and none of the disqualifications 13 provided by law to become a Filipino citizen. The decision granting Philippine citizenship becomes executory only after two (2) years from its promulgation when the court is satisfied that during the intervening period, the applicant has (1) not left the Philippines; (2) has dedicated himself to a lawful calling or profession; (3) has not been convicted of any offense or violation of Government promulgated rules; or (4) committed any act prejudicial to the interest of the nation or contrary to any Government announced policies. 14 Filipino citizens who have lost their citizenship may however reacquire the same in the manner provided by law. Commonwealth Act No. 63 (CA No. 63), enumerates the three modes by which Philippine citizenship may be reacquired by a former citizen: (1) by naturalization, (2) by repatriation, and (3) by direct act of Congress. 15 Naturalization is a mode for both acquisition and reacquisition of Philippine citizenship. As a mode of initially acquiring Philippine citizenship, naturalization is governed by Commonwealth Act No. 473, as amended. On the other hand, naturalization as a mode for reacquiring Philippine citizenship is governed byCommonwealth Act No. 63. 16 Under this law, a former Filipino citizen who wishes to reacquire Philippine citizenship must possess certain qualifications 17and none of the disqualifications mentioned in Section 4 of C.A. 473. 18 Repatriation, on the other hand, may be had under various statutes by those who lost their citizenship due to: (1) desertion of the armed forces; 19 (2)service in the armed forces of the allied forces in World War II; 20 (3) service in the Armed Forces of the United States at any other time; 21 (4) marriage of a Filipino woman to an alien; 22 and (5) political and economic necessity. 23 As distinguished from the lengthy process of naturalization, repatriation simply consists of the taking of an oath of allegiance to the Republic of the Philippines and registering said oath in the Local Civil Registry of the place where the person concerned resides or last resided. In Angara v. Republic, 24 we held: . . . . Parenthetically, under these statutes [referring to RA Nos. 965 and 2630], the person desiring to reacquire Philippine citizenship would not even be required to file a petition in court, and all that he had to do was to take an oath of allegiance to the Republic of the Philippines and to register that fact with the civil registry in the place of

his residence or where he had last resided in the Philippines. [Emphasis in the original.] 25

Moreover, repatriation results in the recovery of the original nationality. 26 This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural-born Filipino. In respondent Cruz's case, he lost his Filipino citizenship when he rendered service in the Armed Forces of the United States. However, he subsequently reacquired Philippine citizenship under R.A. No. 2630, which provides: SECTION 1. Any person who had lost his Philippine citizenship by rendering service to, or accepting commission in, the Armed Forces of the United States, or after separation from the Armed Forces of the United States, acquired United States citizenship, may reacquire Philippine citizenship by taking an oath of allegiance to the Republic of the Philippines and registering the same with Local Civil Registry in the place where he resides or last resided in the Philippines. The said oath of allegiance shall contain a renunciation of any other citizenship. Having thus taken the required oath of allegiance to the Republic and having registered the same in the Civil Registry of Magantarem, Pangasinan in accordance with the aforecited provision, respondent Cruz is deemed to have recovered his original status as a natural-born citizen, a status which he acquired at birth as the son of a Filipino father. 27 It bears stressing that the act of repatriation allows him to recover, or return to, his original status before he lost his Philippine citizenship. Petitioner's contention that respondent Cruz is no longer a natural-born citizen since he had to perform an act to regain his citizenship is untenable. As correctly explained by the HRET in its decision, the term "natural-born citizen" was first defined in Article III, Section 4 of the 1973 Constitution as follows: SECTION 4. A natural-born citizen is one who is a citizen of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship. Two requisites must concur for a person to be considered as such: (1) a person must be a Filipino citizen from birth and (2) he does not have to perform any act to obtain or perfect his Philippine citizenship. Under the 1973 Constitution definition, there were two categories of Filipino citizens which were not considered natural-born: (1) those who were naturalized and (2) those born before January 17, 1973, 28 of Filipino mothers who, upon reaching the age of majority, elected Philippine citizenship. Those "naturalized citizens" were not considered natural-born obviously because they were not Filipinos at birth and had to perform an act to acquire Philippine citizenship. Those born of Filipino mothers before the effectivity of the 1973 Constitution were likewise not considered natural-born because they also had to perform an act to perfect their Philippine citizenship. The present Constitution, however, now considers those born of Filipino mothers before the effectivity of the 1973 Constitution and who elected Philippine citizenship upon reaching the majority age as natural-born. After defining who are natural-born citizens, Section 2 of Article IV adds a sentence: "Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens." Consequently, only naturalized Filipinos are considered not naturalborn citizens. It is apparent from the enumeration of who are citizens under the present Constitution that there are only two classes of citizens: (1) those who are natural-born and (2) those

who are naturalized in accordance with law. A citizen who is not a naturalized Filipino, i.e., did not have to undergo the process of naturalization to obtain Philippine citizenship, necessarily is a naturalborn Filipino. Noteworthy is the absence in said enumeration of a separate category for persons who, after losing Philippine citizenship, subsequently reacquire it. The reason therefor is clear: as to such persons, they would either be natural-born or naturalized depending on the reasons for the loss of their citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As respondent Cruz was not required by law to go through naturalization proceedings in order to reacquire his citizenship, he is perforce a natural-born Filipino. As such, he possessed all the necessary qualifications to be elected as member of the House of Representatives. A final point. The HRET has been empowered by the Constitution to be the "sole judge" of all contests relating to the election, returns, and qualifications of the members of the House. 29 The Court's jurisdiction over the HRET is merely to check "whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction" on the part of the latter. 30 In the absence thereof, there is no occasion for the Court to exercise its corrective power and annul the decision of the HRET nor to substitute the Court's judgment for that of the latter for the simple reason that it is not the office of a petition for certiorari to inquire into the correctness of the assailed decision. 31 There is no such showing of grave abuse of discretion in this case. WHEREFORE, the petition is hereby DISMISSED. ||| (Bengson III v. House of Representatives Electoral Tribunal, G.R. No. 142840, [May 7, 2001], 409 PHIL 633-672) [G.R. Nos. 92191-92. July 30, 1991.] ANTONIO Y. CO, petitioner, vs. ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES and JOSE ONG, JR., respondents. [G.R. Nos. 92202-03. July 30, 1991.] SIXTO T. BALANQUIT, JR., petitioner, vs. ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES and JOSE ONG, JR., respondents. Hechanova & Associates for petitioner Co. Brillantes, Nachura, Navarro and Arcilla Law Offices for respondent Ong, Jr. SYLLABUS 1. CONSTITUTIONAL LAW; ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND HOUSE OF SENATE; SOLE JUDGES OF ALL CONTESTS RELATING TO ELECTION, RETURNS AND QUALIFICATIONS OF THEIR RESPECTIVE MEMBERS. — The Constitution explicitly provides that the House of Representatives Electoral Tribunal (HRET) and the Senate Electoral Tribunal (SET) shall be the sole judges of all contests relating to the election, returns, andqualifications of their respective members (See Article VI, Section 17, Constitution). The authority conferred upon the Electoral Tribunal is full, clear and complete. The use of the word sole emphasizes the exclusivity of the jurisdiction of these Tribunals. The Supreme Court in the case of Lazatin vs. HRET (168 SCRA 391 [1988]) stated that under the 1987 Constitution, the jurisdiction of the Electoral Tribunal is original and exclusive. And that, " . . . so long as theConstitution grants the HRET the power to be the sole judge of all contests relating to election,

returns and qualifications of members of the House of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by this Court . . . the power granted to the Electoral Tribunal is full, clear and complete and excludes the exercise of any authority on the part of this Court that would in any wise restrict it or curtail it or even affect the same." 2. ID.; ID.; JUDGMENTS THEREOF AS A RULE BEYOND JUDICIAL INTERFERENCE; EXCEPTION; ARBITRARY AND IMPROVIDENT USE OF POWER RESULTING TO DENIAL OF DUE PROCESS. — In the case of Robles vs. HRET (181 SCRA 780 [1980]) the Supreme Court stated that the judgments of the Tribunal are beyond judicial interference save only "in the exercise of this Court's so-called extraordinary jurisdiction, . . . upon a determination that the Tribunal's decision or resolution was rendered without or in excess of its jurisdiction, or with grave abuse of discretion or paraphrasing Morrero, upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated ERROR, manifestly constituting such GRAVE ABUSE OF DISCRETION that there has to be a remedy for such abuse." In the leading case ofMorrero vs. Bocar (66 Phil. 429 [1938]) the Court ruled that the power of the Electoral Commission "is beyond judicial interference except, in any event, upon a clear showing of such arbitrary and improvident use of power as will constitute a denial of due process." The Court does not venture into the perilous area of trying to correct perceived errors of independent branches of the Government. It comes in only when it has to vindicate a denial of due process or correct an abuse of discretion so grave or glaring that no less than the Constitution calls for remedial action. 3. ID.; ID.; ID.; APPLIED IN CASE AT BAR. — In the absence of a showing that the HRET has committed grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its corrective power; it will not decide a matter which by its nature is for the HRET alone to decide (See Marcos vs. Manglapus, 177 SCRA 668 [1989]). It has no power to look into what it thinks is apparent error. As constitutional creations invested with necessary power, the Electoral Tribunals, although not powers in the tripartite scheme of the government, are, in the exercise of their functions independent organs — independent of Congress and the Supreme Court. The power granted to HRET by the Constitution is intended to be as complete and unimpaired as if it had remained originally in the legislature (Angara vs. Electoral Commission, 63 Phil. 139 [1936]). In passing upon petitions, the Court with its traditional and careful regard for the balance of powers, must permit this exclusive privilege of the Tribunals to remain where the Sovereign authority has placed it (See Veloso vs. Boards of Canvassers of Leyte and Samar, 39 Phil. 886 [1919]). 4. ID.; SUPREME COURT; EXPANDED JURISDICTION UNDER 1987 CONSTITUTION. — The Supreme Court under the 1987 Constitution, has been given an expanded jurisdiction, so to speak, to review the decisions of the other branches and agencies of the government to determine whether or not they have acted within bounds of the Constitution (See Article VIII, Section 1, Constitution). Yet, in the exercise thereof, the Court is to merely check whether or not the government branch or agency has gone beyond the Constitutional limits of its jurisdiction, not that it erred or has a different view. 5. ID.; CONSTITUTIONAL PROVISIONS; HOW CONSTRUED; SPIRIT AND INTENDMENT MUST PREVAIL. — In construing the law, the Courts are not always to be hedged in by the literal meaning of its language. The spirit and intendment thereof, must prevail over the letter, especially where adherence to the latter would result in absurdity and injustice (Casela vs. Court of Appeals, 35 SCRA 279 [1970]). A Constitutional provision should be construed so as to give it effective operation and suppress the mischief at which it is aimed, hence, it is the spirit of the provision which should prevail over the letter thereof (Jarrolt vs. Mabberly, 103 U.S. 580). In the words of the Court in the case of J.M. Tuazon vs. LTA (31 SCRA 413 [1970]); "To that primordial intent, all else is subordinated. Our Constitution, any constitution is not to be construed narrowly or pedantically, for the prescriptions therein contained, to paraphrase Justice Holmes, are not mathematical formulas having their essence in their form but are organic living institutions, the significance of which is vital not formal . . . ."

6. ID.; CITIZENSHIP; SECTION 1, PARAGRAPH 3 OF ARTICLE IV OF 1987 CONSTITUTION; CONSTRUED. — Article IV of the Constitution provides: "Section 1. The following are citizens of the Philippines: . . . (3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and . . . Section 2. Natural-born Citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their citizenship. Those who elect Philippine citizenship in accordance with paragraph 3 hereof shall be deemed natural-born citizens." The Court interprets Section 1, Paragraph 3 above as applying not only to those who elect Philippine citizenship after February 2, 1987 but also to those who, having been born of Filipino mothers, elected citizenship before that date. The provision in Paragraph 3 was intended to correct an unfair position which discriminates against Filipino women. To make the provision prospective from February 3, 1987 is to give a narrow interpretation resulting in an inequitable situation. It must also be retroactive. The provision in question was enacted to correct the anomalous situation where one born of a Filipino father and an alien mother was automatically granted the status of a natural-born citizen while one born of a Filipino mother and an alien father would still have to elect Philippine citizenship. If one so elected, he was not, under earlier laws, conferred the status of a natural-born. Under the 1973 Constitution, those born of Filipino fathers and those born of Filipino mothers with an alien father were placed in equal footing. They were both considered as natural-born citizens. Hence, the bestowment of the status of "natural-born" cannot be made to depend on the fleeting accident of time or result in two kinds of citizens made up of essentially the same similarly situated members. It is for this reason that the amendments were enacted, that is, in order to remedy this accidental anomaly, and, therefore, treat equally all those born before the 1973 Constitution and who elected Philippine citizenship either before or after the effectivity of that Constitution. 7. ID.; ID.; SECTION 2 OF ARTICLE IV OF THE 1987 CONSTITUTION; ELECTION OF CITIZENSHIP; APPLIES ONLY TO THOSE BORN OF FILIPINO MOTHER AND ALIEN FATHER BUT NOT TO ONE WHOSE FATHER HAS BEEN NATURALIZED WHEN MINOR WAS ONLY NINE (9) YEARS OF AGE. — There is no dispute that respondent's mother was a natural born Filipina at the time of her marriage. Crucial to this case is the issue of whether or not the respondent elected or chose to be a Filipino citizen. Election becomes material because Section 2 of Article IV of the Constitution accords natural born status to children born of Filipino mothers before January 17, 1973, if they elect citizenship upon reaching the age of majority. To expect the respondent to have formally or in writing elected citizenship when he came of age is to ask for the unnatural and unnecessary. The reason is obvious. He was already a citizen. Not only was his mother a natural born citizen but his father had been naturalized when the respondent was only nine (9) years old. He could not have divined when he came of age that in 1973 and 1987 the Constitution would be amended to require him to have filed a sworn statement in 1969 electing citizenship in spite of his already having been a citizen since 1957. In 1969, election through a sworn statement would have been an unusual and unnecessary procedure for one who had been a citizen since he was nine years old. 8. ID.; ID.; ID.; ID.; CASE OF IN RE: FLORENCIO MALLARE (59 SCRA 45 [1974]) APPLIES IN CASE AT BAR. — In the case of In Re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the exercise of the right of suffrage and the participation in election exercises constitute a positive act of election of Philippine citizenship. In the exact pronouncement of the Court, we held: "Esteban's exercise of the right of suffrage when he came of age, constitutes a positive act of election of Philippine citizenship." The private respondent did more than merely exercise his right of suffrage. He has established his life here in the Philippines. For those in the peculiar situation of the respondent who cannot be expected to have elected citizenship as they were already citizens, we apply the In Re Mallare rule. The filing of a sworn statement or formal declaration is a requirement for those who still have to elect citizenship. For those already Filipinos when the time to elect came up, there are acts of deliberate choice which cannot be less binding. Entering a profession open only to Filipinos, serving in public office where citizenship is a qualification, voting during election time, running for public office,

and other categorical acts of similar nature are themselves formal manifestations of choice for these persons. 9. ID.; ID.; AN ATTACK THERETO MAY ONLY BE DONE THROUGH A DIRECT ACTION. — The petitioners argue that the respondent's father was not, validly, a naturalized citizen because of his premature taking of the oath of citizenship. The Court cannot go into the collateral procedure of stripping Mr. Ong's father of his citizenship after his death and at this very late date just so we can go after the son. The petitioners question the citizenship of the father through a collateral approach. This can not be done. In our jurisprudence, an attack on a person's citizenship may only be done through a direct action for its nullity (See Queto vs. Catolico, 31 SCRA 52 [1970]). 10. ID.; ID.; TO DECLARE THE GRANT THEREOF AS NULL AND VOID VIOLATIVE OF THE DUE PROCESS CLAUSE WHERE PERSON INVOLVED HAS BEEN LAID TO REST. — To ask the Court to declare that grant of Philippine citizenship to Jose Ong Chuan as null and void would run against the principle of due process. Jose Ong Chuan has already been laid to rest. How can he be given a fair opportunity to defend himself. A dead man cannot speak. To quote the words of the HRET: "Ong Chuan's lips have long been muted to perpetuity by his demise and obviously he could not rise beyond where his mortal remains now lie to defend himself were this matter to be made a central issue in this case." 11. ID.; ID.; ARTICLE 17 OF THE CIVIL CODE OF SPAIN SUB-PARAGRAPH 4 THEREOF IN RELATION TO SECTION 4 OF THE PHILIPPINE BILL OF 1902, APPLIED IN CASE AT BAR. — Article 17 of the Civil Code of Spain enumerates those who were considered Spanish Subjects, viz: "ARTICLE 17. The following are Spaniards: . . . (4). Those without such papers, who may have acquired domicile in any town in the Monarchy." The domicile of a natural person is the place of his habitual residence. This domicile, once established is considered to continue and will not be deemed lost until a new one is established (Article 50, NCC; Article 40, Civil Code of Spain; Zuellig vs. Republic, 83 Phil. 768 [1949]). Ong Te became a permanent resident of Laoang, Samar around 1895. Correspondingly, a certificate of residence was then issued to him by virtue of his being a resident of Laoang, Samar. The domicile that Ong Te established in 1895 continued until April 11, 1899; it even went beyond the turn of the 19th century. It is also in this place where Ong Te set up his business and acquired his real property. Ong Te falls within the meaning of sub-paragraph 4 of Article 17 of the Civil Code of Spain. Although Ong Te made brief visits to China, he, nevertheless, always returned to the Philippines. The fact that he died in China, during one of his visits in said country, was of no moment. This will not change the fact that he already had his domicile fixed in the Philippines and pursuant to the Civil Code of Spain, he had become a Spanish subject. If Ong Te became a Spanish subject by virtue of having established his domicile in a town under the Monarchy of Spain, necessarily, Ong Te was also an inhabitant of the Philippines for an inhabitant has been defined as one who has actual fixed residence in a place; one who has a domicile in a place (Bouvier's Law Dictionary, Vol. II). A priori, there can be no other logical conclusion but to educe that Ong Te qualified as a Filipino citizen under the provisions of Section 4 of the Philippine Bill of 1902. 12. ID.; ID.; "RESIDENCE"; MEANING THEREOF UNDER THE CONSTITUTION. — Under the Constitution, the term "residence" has been understood as synonymous with domicile not only under the previous Constitutions but also under the 1987 Constitution. The term "domicile" denotes a fixed permanent residence to which when absent for business or pleasure, one intends to return (Ong Huan Tin vs. Republic, 19 SCRA 966 [1967]). The absence of a person from said permanent residence, no matter how long, notwithstanding, it continues to be the domicile of that person. In other words, domicile is characterized by animus revertendi (Ujano vs. Republic, 17 SCRA 147 [1966]). 13. ID.; ID.; ID.; ESTABLISHMENT THEREOF; OWNERSHIP OF A HOUSE NOT NECESSARY. — The petitioners' allegation that since the private respondent owns no property in Laoang, Samar, he

cannot, therefore, be a resident of said place is misplaced. The properties owned by the Ong family are in the name of the private respondent's parents. Upon the demise of his parents, necessarily, the private respondent, pursuant to the laws of succession, became the co-owner thereof (as a co-heir), notwithstanding the fact that these were still in the names of his parents. Even assuming that the private respondent does not own any property in Samar, the Supreme Court in the case of De los Reyes vs. Solidum (61 Phil. 893 [1935]) held that it is not required that a person should have a house in order to establish his residence and domicile. It is enough that he should live in the municipality or in a rented house or in that of a friend or relative. 14. ID.; ID.; ID.; TEMPORARY ABSENCE DOES NOT NECESSARILY CONNOTE CHANGE THEREOF; "ANIMUS REVERTENDI" ESTABLISHED IN CASE AT BAR. — It has also been settled that absence from residence to pursue studies or practice a profession or registration as a voter other than in the place where one is elected, does not constitute loss of residence (Faypon vs. Quirino, 96 Phil. 294 [1954]). The private respondent stayed in Manila for the purpose of finishing his studies and later to practice his profession. There was no intention to abandon the residence in Laoang, Samar. On the contrary, the periodical journeys made to his home province reveal that he always had the animus revertendi. 15. ID.; ID.; PROSPECTIVE JUDICIAL RECOMMENDATION; MORE HUMANE AND LESS TECHNICAL APPROACH TO CITIZENSHIP PROBLEMS. — Our citizens no doubt constitute the country's greatest wealth. Citizenship is a special privilege which one must forever cherish. However, in order to truly revere this treasure of citizenship, we do not, on the basis of too harsh an interpretation, have to unreasonably deny it to those who qualify to share in its richness. Under the overly strict jurisprudence surrounding our antiquated naturalization laws only the very affluent backed by influential patrons, who were willing to suffer the indignities of a lengthy, sometimes humiliating, and often corrupt process of clearances by minor bureaucrats and whose lawyers knew how to overcome so many technical traps of the judicial process were able to acquire citizenship. It is time for the naturalization law to be revised to enable a more positive, affirmative, and meaningful examination of an applicant's suitability to be a Filipino. A more humane, more indubitable and less technical approach to citizenship problems is essential. 16. ID.; HOUSE OF REPRESENTATIVE; CANDIDATES; PROPERTY OWNERSHIP; NOT A QUALIFICATION. — To require the private respondent to own property in order to be eligible to run for Congress would be tantamount to a property qualification. The Constitution only requires that the candidate meet the age, citizenship, voting and residence requirements. Nowhere is it required by the Constitution that the candidate should also own property in order to be qualified to run (see Maquera vs. Borra, 122 Phil. 412 [1965]). 17. REMEDIAL LAW; BEST EVIDENCE RULE; EXCEPTION; ORIGINAL HAS BEEN LOST; REQUIREMENTS THEREOF TO BE ADMISSIBLE; PROPERLY LAID IN CASE AT BAR. — The petitioners' sole ground in disputing that respondent was a natural-born Filipino is that the documents presented to prove it were not in compliance with the best evidence rule. The petitioners allege that the private respondent failed to present the original of the documentary evidence, testimonial evidence and of the transcript of the proceedings of the body upon which the resolution of the 1971 Constitutional Convention was predicated. On the contrary, the documents presented by the private respondent fall under the exceptions to the best evidence rule. It was established in the proceedings before the HRET that the originals of the Committee Report No. 12, the minutes of the plenary session of the 1971 Constitutional Conventionheld on November 28, 1972 cannot be found. This was affirmed by Atty. Ricafrente, Assistant Secretary of the 1971 Constitutional Convention; by Atty. Nolledo, Delegate to the 1971 Constitutional Convention; and by Atty. Antonio Santos, Chief Librarian of the U.P. Law Center, in their respective testimonies given before the HRET to the effect that there is no governmental agency which is the official custodian of the records of the 1971 Constitutional Convention. The execution of the originals was established by Atty. Ricafrente, who as the Assistant Secretary of the 1971 Constitutional Convention was the proper party to testify to such execution. The

inability to produce the originals before the HRET was also testified to as aforestated by Atty. Ricafrente, Atty. Nolledo, and Atty. Santos. In proving the inability to produce, the law does not require the degree of proof to be of sufficient certainty; it is enough that it be shown that after a bona fide diligent search, the same cannot be found (see Government of P.I. vs. Martinez, 44 Phil. 817 [1918]). Since the execution of the document and the inability to produce were adequately established, the contents of the questioned documents can be proven by a copy thereof or by the recollection of witnesses. PADILLA, J., dissenting: 1. CONSTITUTIONAL LAW; SUPREME COURT; JURISDICTION THEREOF; EXPANDED UNDER THE 1987 CONSTITUTION; DECISION OF HOUSE ELECTORAL TRIBUNAL SUBJECT TO JUDICIAL REVIEW. — I believe that, contrary to the respondents' contentions, the Court has the jurisdiction and competence to review the questioned decision of the House Electoral Tribunal and to decide the present controversy. Article VIII, Section 1 of the 1987 Constitutionprovides that: "Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." The Constitution, it is true, constitutes the tribunal as the sole judge of all contests relating to the election, returns, and qualifications of Members of the House of Representatives. But as early as 1938, it was held in Morrero vs. Bocar (66 Phil. 429), construing Section 4, Article VI of the 1935 Constitution which provided that " . . . The Electoral Commission shall be the sole judge of all contests relating to the election, returns and qualifications of the Members of the National Assembly." that: "The judgment rendered by the (electoral) commission in the exercise of such and acknowledged power is beyond judicial interference, except, in any event, 'upon a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process of law' (Barry vs. US ex rel. Cunningham, 279 US 597; 73 Law. ed., 867; Angara vs. Electoral Commission, 35 Off. Gaz., 23)." And then under the afore-quoted provisions of Article VIII, Section 1 of the 1987 Constitution, this Court is duty-bound to determine whether or not, in an actual controversy, there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. 2. ID.; ID.; ID.; ID.; APPLIED IN CASE AT BAR. — The present controversy, involves more than perceived irregularities in the conduct of a congressional election or a disputed appreciation of ballots, in which cases, it may be contended with great legal force and persuasion that the decision of the electoral tribunal should be final and conclusive, for it is, by constitutional directive, made the sole judge of contests relating to such matters. The present controversy, however, involves no less than a determination of whether the qualifications for membership in the House of Representatives, as prescribed by the Constitution, have been met. Indeed, this Court would be unforgivably remiss in the performance of its duties, as mandated by the Constitution, were it to allow a person, not a naturalborn Filipino citizen, to continue to sit as a Member of the House of Representatives, solely because the House Electoral Tribunal has declared him to be so. In such a case, the tribunal would have acted with grave abuse of discretion amounting to lack or excess of jurisdiction as to require the exercise by this Court of its power of judicial review. Besides, the citizenship and residence qualifications of private respondent for the office of Member of the House of Representatives, are here controverted by petitioners who, at the same time, claim that they are entitled to the office illegally held by private respondent. From this additional direction, where one asserts and earnestly perceived right that in turn is vigorously resisted by another, there is clearly a justiciable controversy proper for this Court to consider and decide. 3. ID.; ID.; ID.; EXERCISE OF JUDICIAL REVIEW NOT VIOLATIVE OF THE PRINCIPLE OF SEPARATION OF POWERS. — The Court, in reviewing the decision of the tribunal, does not assert

supremacy over it in contravention of the time-honored principle of constitutional separation of powers. The Court in this instance simply performs a function entrusted and assigned to it by the Constitution of interpreting, in a justiciable controversy, the pertinent provisions of the Constitution with finality. "It is the role of the Judiciary to refine and, when necessary, correct constitutional (and/or statutory) interpretation, in the context of the interactions of the three branches of the government, almost always in situations where some agency of the State has engaged in action that stems ultimately from some legitimate area of governmental power (the Supreme Court in Modern Role, C.B. Sevisher, 1958, p. 36)." Moreover, it is decidedly a matter of great public interest and concern to determine whether or not private respondent is qualified to hold so important and high a public office which is specifically reserved by the Constitution only to natural-born Filipino citizens. 4. ID.; CITIZENSHIP; NATURAL-BORN; REQUISITE; NOT COMPLIED WITH IN CASE AT BAR. — The records show that private respondent was born on 19 June 1948 to the spouses Jose Ong Chuan, a Chinese citizen, and Agrifina E. Lao, a natural-born Filipino citizen, in Laoang, Northern Samar. In other words,at birth, private respondent was a Chinese citizen (not a natural-born Filipino citizen) because his father was then a Chinese citizen (not a naturalized Filipino citizen). Under the 1935 Constitution which was enforced at the time of private respondent's birth on 19 June 1948, only those whose fathers were citizens of the Philippines were considered Filipino citizens. Those whose mothers were citizens of the Philippines had to elect Philippine citizenship upon reaching the age of majority, in order to be considered Filipino citizens. Following the basic definition in the 1987 Constitution of a natural-born citizen, in relation to the 1935 Constitution, private respondent is not a natural-born Filipino citizen, having been born a Chinese citizen by virtue of the Chinese citizenship of his father at the time of his birth, although from birth, private respondent had the right to elect Philippine citizenship, the citizenship of his mother, but only upon his reaching the age of majority. 5. ID.; ID.; ID.; SECTION 15 OF THE REVISED NATURALIZATION LAW (C.A. 473); DID NOT CONFER STATUS OF NATURAL-BORN IN CASE AT BAR. — While under Section 15 of the Revised Naturalization Law (C.A. 473) minor children of a naturalized citizen (father), who were born in the Philippines prior to the naturalization of the parent automatically become Filipino citizens, this does not alter the fact that private respondent was not born to a Filipino father, and the operation of Section 15 of CA 473 did not confer upon him the status of a natural-born citizen merely because he did not have to perform any act to acquire or perfect his status as a Filipino citizen. 6. ID.; ID.; NATURALIZATION; NATURE THEREOF; PRIVILEGE NOT A RIGHT. — "Naturalization is not a right, but a privilege of the most discriminating as well as delicate and exacting nature, affecting public interest of the highest order, and which may be enjoyed only under the precise conditions prescribed by law therefor." 7. ID.; ID.; ID.; PETITION; GRANT THEREOF; APPEALABLE; OATH TAKEN BEFORE EXPIRATION OF THE PERIOD OF APPEAL; IMPROPER. — It is settled that an order granting a petition to take the requisite oath of allegiance of one who has previously obtained a decision favorable to his application for naturalization, is appealable. It is, therefore, improper and illegal to authorize the taking of said oath upon the issuance of said order and before the expiration of the reglementary period to perfect any appeal from said order. In Cua Sun Ke vs. Republic (159 SCRA 477), this Court held that: "Administration of the oath of allegiance on the same day as issuance of order granting citizenship is irregular and makes the proceedings so taken null and void (Republic vs. Guy, 115 SCRA 244 [1982]; citing the case of Ong So vs. Republic of the Philippines, 121 Phil. 1381)." 8. ID.; ID.; NATURAL-BORN; DEFINED AND INTERPRETED UNDER THE 1987 CONSTITUTION. — Article IV, Section 2 of the 1987 Constitution defines natural-born (Filipino) citizens as: "Naturalborn citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens." Article IV, Section 1,

paragraph (3) of the 1987 Constitution provides that: "Section 1. The following are citizens of the Philippines: . . . (3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority." It would appear then that the intent of the framers of the 1987 Constitution in defining a natural-born Filipino citizen was to equalize the position of Filipino fathers and Filipino mothers as to their children becoming natural-born Filipino citizens. In other words, after 17 January 1973, effectivity date of the 1973 Constitution, all those born of Filipino fathers (with alien spouse) or Filipino mothers (with alien spouse) are natural-born Filipino citizens. But those born to Filipino mothers prior to 17 January 1973 must still elect Philippine citizenship upon reaching the age of majority, in order to be deemed natural-born Filipino citizens. The election, which is related to the attainment of the age of majority, may be made before or after 17 January 1973. This interpretation appears to be in consonance with the fundamental purpose of the Constitution which is to protect and enhance the people's individual interests, and to foster equality among them. 9. ID.; ID.; ELECTION THEREOF; MUST BE MADE EXPRESSLY AS PROVIDED FOR UNDER COMMONWEALTH ACT NO. 625. — It is settled doctrine in this jurisdiction that election of Philippine citizenship must be made in accordance with Commonwealth Act 625, Sections 1 and 2 of the Act mandate that the option to elect Philippine citizenship must be effected expressly, not impliedly. 10. ID.; ID.; ID.; CASE OF IN RE: FLORENCIO MALLARE (ADMINISTRATIVE CASE NO. 533, SEPTEMBER 12, 1974, [59 SCRA 45]) NOT APPLICABLE IN CASE AT BAR. — The respondent tribunal cites In re: Florencio Mallare which held that Esteban Mallare's exercise of the right of suffrage when he came of age, constituted a positive act of election of Philippine citizenship. Mallare, cited by respondent tribunal as authority for the doctrine of implied election of Philippine citizenship, is not applicable to the case at bar. The respondent tribunal failed to consider that Esteban Mallare reached the age of majority in 1924, or seventeen (17) years before CA 625 was approved and, more importantly, eleven (11) years before the 1935 Constitution (which granted the right of election) took effect. 11. ID.; ID.; ID.; REQUISITE PROVIDED FOR UNDER COMMONWEALTH ACT NO. 625 NOT COMPLIED WITH IN CASE AT BAR. — The respondent tribunal erred in ruling that by operation of CA 473, the Revised Naturalization Law, providing for private respondent's acquisition of Filipino citizenship by reason of the naturalization of his father, the law itself had already elected Philippine citizenship for him. For, assuming arguendo that the naturalization of private respondent's father was valid, and that there was no further need for private respondent to elect Philippine citizenship (as he had automatically become a Filipino citizen) yet, this did not mean that the operation of the Revised Naturalization Law amounted to an election by him of Philippine citizenship as contemplated by the Constitution. Besides, election of Philippine citizenship derived from one's Filipino mother, is made upon reaching the age of majority, not during one's minority. There is no doubt in my mind, therefore, that private respondent did not elect Philippine citizenship upon reaching the age of majority in 1969 or within a reasonable time thereafter as required by CA 625. Consequently, he cannot be deemed a natural-born Filipino citizen under Sections 2 and 1 (3), Article IV of the 1987 Constitution.

12. ID.; ELECTION PROTEST; QUESTIONING ELIGIBILITY OF A CANDIDATE-ELECT; IN EFFECT A QUO WARRANTO PROCEEDING; INELIGIBILITY OF CANDIDATE-ELECT RESULTS IN NOCHOICE. — Neither of the petitioners may take the place of private respondent in the House of Representatives representing the second district of Northern Samar. The ruling of this Court in Ramon L. Labo, Jr. vs. The Commission on Elections (COMELEC) EN BANC and Luis L. Lardizabal (176 SCRA 1), is controlling. There we held that Luis L. Lardizabal, who filed the quo warranto petition, could not replace Ramon L. Labo, Jr. as mayor of Baguio City for the simple reason that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City for mayor of that City. A petition alleging that the candidate-elect is not

qualified for the office is, in effect, a quo warranto proceeding even if it is labelled an election protest. It is a proceeding to unseat the ineligible person from office but not necessarily to install the protestant in his place. The general rule is that the fact that a plurality or a majority of the votes are cast for an ineligible candidate in an election does not entitle the candidate receiving the next highest number of votes to be declared elected. In such a case, the electors have failed to make a choice and the election is a nullity. 13. ID.; ID.; PHILIPPINE BILL OF 1902; REQUIREMENTS PROVIDED THEREIN; NOT COMPLIED WITH IN CASE AT BAR. — The "test," following the premises of the 1971 Constitutional Convention, is whether or not Ong Te, private respondent's and Emil L. Ong's grandfather was "an inhabitant of the Philippines who continued to reside therein and was a Spanish subject on April 11, 1899." If he met these requirements of the Philippine Bill of 1902, then, Ong Te was a Filipino citizen; otherwise, he was not a Filipino citizen. Petitioners (protestants) submitted and offered in evidence before the House Electoral Tribunal exhibits W, X, Y, Z, AA, BB, CC, DD and EE which are copies of entries in the "Registro de Chinos" from years 1896 to 1897 which show that Ong Te was not listed as an inhabitant of Samar where he is claimed to have been a resident. Petitioners (protestants) also submitted and offered in evidence before the House Electoral Tribunal Exhibit V, a certification of the Chief of the Archives Division, Records and Management and Archives Office, stating that the name of Ong Te does not appear in the "Registro de Chinos" for the province of Samar for 1895. These exhibits prove or at least, as petitioners validly argue, tend to prove that Ong Te was NOT a resident of Samar close to 11 April 1899 and, therefore, could not continue residing in Samar, Philippines after 11 April 1899, contrary to private respondent's pretense. In the face of these proofs or evidence, private respondent FAILED TO PRESENT ANY REBUTTAL OR COUNTERVAILING EVIDENCE. 14. ID.; ID.; RES JUDICATA; NOT APPLICABLE. — The decision of the 1971 Constitutional Convention in the case of Emil L. Ong was a decision of a political body, not a court of law. And, even if we have to take such a decision as a decision of a quasi-judicial body (i.e., a political body exercising quasi-judicial functions), said decision in the Emil L. Ong case can not have the category or character of res judicata in the present judicial controversy, because between the two (2) cases, there is no identity of parties (one involves Emil L. Ong, while the other involves private respondent) and, more importantly, there is no, identity of causes of action because the first involves the 1935 Constitution while the second involves the 1987 Constitution. As held in Lee vs. Commissioners on Immigration (G.R. No. L-23446, 20 December 1971, 42 SCRA 561): " . . . Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding court or administrative authority decides therein as to such citizenship is generally not considered as res judicata, hence it has to be threshed out again and again as the occasion may demand." 15. ID; SUPREMACY OF THE CONSTITUTION; MUST BE ENFORCED. — It is regrettable that one (as private respondent) who unquestionably obtained the highest number of votes for the elective position of Representative (Congressman) to the House of Representatives for the second district of Northern Samar, would have to cease in office by virtue of this Court's decision, if the full membership of the Court had participated in this case, with the result that the legislative district would cease to have, in the interim, a representative in the House of Representatives. But the fundamental consideration in case of this nature is the Constitution and only the Constitution. It has to be assumed, therefore, that when the electorate in the second legislative district of Northern Samar cast the majority of their votes for private respondent, they seemed and believed that he was fully eligible and qualified for the office because he is a natural-born Filipino citizen. That erroneous assumption and belief can not prevail over, but must yield to the majesty of the Constitution. SARMIENTO, J., concurring: 1. CONSTITUTIONAL LAW; ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES; AS SOLE JUDGE OF ALL CONTEST RELATING TO MEMBERS THEREOF; ISSUE OF CITIZENSHIP INCLUDED; BEYOND JUDICIAL INTERVENTION. — The question of citizenship is a

question of fact, and as a rule, the Supreme Court leaves facts to the tribunal that determined them. I am quite agreed that the Electoral Tribunal of the House of Representatives, as the "sole judge" of all contests relating to the membership in the House, as follows: "Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman." is the best judge of facts and this Court can not substitute its judgment because it thinks it knows better. 2. ID.; SUPREME COURT; EXPANDED JURISDICTION THEREOF; REVIEW OF FACTS NOT INCLUDED. — In the case of Aratuc vs. Commission on Elections (88 SCRA 251), it was held that this Court can not review the errors of the Commission on Elections (then the "sole judge" of all election contests) — in the sense of reviewing facts and unearthing mistakes — and that this Court's jurisdiction is to see simply whether or not it is guilty of a grave abuse of discretion. It is true that the new Constitution has conferred expanded powers on the Court, but as the Charter states, our authority is "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." It is not to review facts. 3. ID.; ID.; ID.; "GRAVE ABUSE OF DISCRETION" DEFINED. — "Grave abuse of discretion" has been defined as whimsical exercise of power amounting to excess of jurisdiction, or otherwise, to denial of due process of law.

DECISION

GUTIERREZ, JR., J p: The petitioners come to this Court asking for the setting aside and reversal of a decision of the House of Representatives Electoral Tribunal (HRET). The HRET declared that respondent Jose Ong, Jr. is a natural born Filipino citizen and a resident of Laoang, Northern Samar for voting purposes. The sole issue before us is whether or not, in making that determination, the HRET acted with grave abuse of discretion. On May 11, 1987, the congressional election for the second district of Northern Samar was held. Among the candidates who vied for the position of representative in the second legislative district of Northern Samar are the petitioners, Sixto Balinquit and Antonio Co and the private respondent, Jose Ong, Jr. Respondent Ong was proclaimed the duly elected representative of the second district of Northern Samar. The petitioners filed election protests against the private respondent premised on the following grounds: 1) Jose Ong, Jr. is not a natural born citizen of the Philippines; and 2) Jose Ong, Jr. is not a resident of the second district of Northern Samar. The HRET, in its decision dated November 6, 1989, found for the private respondent.

A motion for reconsideration was filed by the petitioners on November 12, 1989. This was, however, denied by the HRET, in its resolution dated February 22, 1989. Hence, these petitions for certiorari. We treat the comments as answers and decide the issues raised in the petitions. ON THE ISSUE OF JURISDICTION The first question which arises refers to our jurisdiction. The Constitution explicitly provides that the House of Representatives Electoral Tribunal (HRET) and the Senate Electoral Tribunal (SET) shall be the sole judges of all contests relating to the election, returns, and qualifications of their respective members. (See Article VI, Section 17, Constitution). prLL The authority conferred upon the Electoral Tribunal is full, clear and complete. The use of the word sole emphasizes the exclusivity of the jurisdiction of these Tribunals. The Supreme Court in the case of Lazatin v. HRET (168 SCRA 391 [1988]) stated that under the 1987 Constitution, the jurisdiction of the Electoral Tribunal is original and exclusive, viz: "The use of the word 'sole' emphasizes the exclusive character of the jurisdiction conferred (Angara v. Electoral Commission, supra at p. 162). The exercise of power by the Electoral Commission under the 1935 Constitution has been described as 'intended to be as complete and unimpaired as if it had originally remained in the legislature.' (id., at p. 175) Earlier this grant of power to the legislature was characterized by Justice Malcolm as 'full, clear and complete'. (Veloso v. Board of Canvassers of Leyte and Samar, 39 Phil. 886 [1919]) Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it remained as full, clear and complete as that previously granted the Legislature and the Electoral Commission, (Lachica v. Yap, 25 SCRA 140 [1968] The same may be said with regard to the jurisdiction of the Electoral Tribunal under the 1987 Constitution." (p. 401).

The Court continued further, ". . . so long as the Constitution grants the HRET the power to be the sole judge of all contests relating to election, returns and qualifications of members of the House of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by this Court . . . the power granted to the Electoral Tribunal is full, clear and complete and excludes the exercise of any authority on the part of this Court that would in any wise restrict it or curtail it or even affect the same." (pp. 403-404) When may the Court inquire into acts of the Electoral Tribunals under our constitutional grants of power? In the later case of Robles v. HRET (181 SCRA 780 [1990]) the Supreme Court stated that the judgments of the Tribunal are beyond judicial interference save only "in the exercise of this Court's so-called extraordinary jurisdiction, . . . upon a determination that the Tribunal's decision or resolution was rendered without or in excess of its jurisdiction, or with grave abuse of discretion or paraphrasing Morrero, upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated ERROR, manifestly constituting such GRAVE ABUSE OF DISCRETION that there has to be a remedy for such abuse." (at pp. 785-786) In the leading case of Morrero v. Bocar (66 Phil. 429 [1938]) the Court ruled that the power of the Electoral Commission "is beyond judicial interference except, in any event, upon a clear showing of such arbitrary and improvident use of power as will constitute a denial of due process." The Court

does not venture into the perilous area of trying to correct perceived errors of independent branches of the Government. It comes in only when it has to vindicate a denial of due process or correct an abuse of discretion so grave or glaring that no less than the Constitution calls for remedial action. LLjur The Supreme Court under the 1987 Constitution, has been given an expanded jurisdiction, so to speak, to review the decisions of the other branches and agencies of the government to determine whether or not they have acted within the bounds of the Constitution. (See Article VIII, Section 1, Constitution) Yet, in the exercise thereof, the Court is to merely check whether or not the governmental branch or agency has gone beyond the Constitutional limits of its jurisdiction, not that it erred or has a different view. In the absence of a showing that the HRET has committed grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its corrective power; it will not decide a matter which by its nature is for the HRET alone to decide. (See Marcos v. Manglapus, 177 SCRA 668 [1989]) It has no power to look into what it thinks is apparent error. As constitutional creations invested with necessary power, the Electoral Tribunals, although not powers in the tripartite scheme of the government, are, in the exercise of their functions independent organs — independent of Congress and the Supreme Court. The power granted to HRET by the Constitution is intended to be as complete and unimpaired as if it had remained originally in the legislature. (Angara v. Electoral Commission, 63 Phil. 139 [1936]) In passing upon petitions, the Court with its traditional and careful regard for the balance of powers, must permit this exclusive privilege of the Tribunals to remain where the Sovereign authority has place it. (See Veloso v. Boards of Canvassers of Leyte and Samar, 39 Phil. 886 [1919]) It has been argued that under Article VI, Section 17 of the present Constitution, the situation may exist as it exists today where there is an unhealthy one-sided political composition of the two Electoral Tribunals. There is nothing in the Constitution, however, that makes the HRET because of its composition any less independent from the Court or its constitutional functions any less exclusive. The degree of judicial intervention should not be made to depend on how many legislative members of the HRET belong to this party or that party. The test remains the same — manifest grave abuse of discretion. In the case at bar, the Court finds no improvident use of power, no denial of due process on the part of the HRET which will necessitate the exercise of the power of judicial review by the Supreme Court. ON THE ISSUE OF CITIZENSHIP The records show that in the year 1895, the private respondent's grandfather, Ong Te, arrived in the Philippines from China. Ong Te established his residence in the municipality of Laoang, Samar on land which he bought from the fruits of hard work. As a resident of Laoang, Ong Te was able to obtain a certificate of residence from the then Spanish colonial administration. The father of the private respondent, Jose Ong Chuan was born in China in 1905. He was brought by Ong Te to Samar in the year 1915. Jose Ong Chuan spent his childhood in the province of Samar. In Laoang, he was able to establish an enduring relationship with his neighbors, resulting in his easy assimilation into the community. As Jose Ong Chuan grew older in the rural and seaside community of Laoang, he absorbed Filipino cultural values and practices. He was baptized into Christianity. As the years passed, Jose Ong Chuan met a natural born-Filipina, Agripina Lao. The two fell in love and, thereafter, got married in 1932 according to Catholic faith and practice.

The couple bore eight children, one of whom is the private respondent who was born in 1948. The private respondent's father never emigrated from this country. He decided to put up a hardware store and shared and survived the vicissitudes of life in Samar. The business prospered. Expansion became inevitable. As a result, a branch was set-up in Binondo, Manila. In the meantime, the father of the private respondent, unsure of his legal status and in an unequivocal affirmation of where he cast his life and family, filed with the Court of First Instance of Samar of application for naturalization on February 15, 1954. LibLex On April 28, 1955, the CFI of Samar, after trial, declared Jose Ong Chuan a Filipino citizen. On May 15, 1957, the Court of First Instance of Samar issued an order declaring the decision of April 28, 1955 as final and executory and that Jose Ong Chuan may already take his Oath of Allegiance. Pursuant to said order, Jose Ong Chuan took his Oath of Allegiance; correspondingly, a certificate of naturalization was issued to him. At the time Jose Ong Chuan took his oath, the private respondent then a minor of nine years was finishing his elementary education in the province of Samar. There is nothing in the records to differentiate him from other Filipinos insofar as the customs and practices of the local populace were concerned. Fortunes changed. The house of the family of the private respondent in Laoang, Samar was burned to the ground. Undaunted by the catastrophe, the private respondent's family constructed another one in place of their ruined house. Again, there is no showing other than that Laoang was their abode and home. After completing his elementary education, the private respondent, in search for better education, went to Manila in order to acquire his secondary and college education. In the meantime, another misfortune was suffered by the family in 1975 when a fire gutted their second house in Laoang, Samar. The respondent's family constructed still another house, this time a 16-door apartment building, two doors of which were reserved for the family. The private respondent graduated from college, and thereafter took and passed the CPA Board Examinations. Since employment opportunities were better in Manila, the respondent looked for work here. He found a job in the Central Bank of the Philippines as an examiner. Later, however, he worked in the hardware business of his family in Manila. In 1971, his elder brother, Emil, was elected as a delegate to the 1971 Constitutional Convention. His status as a natural born citizen was challenged. Parenthetically, the Convention which in drafting the Constitution removed the unequal treatment given to derived citizenship on the basis of the mother's citizenship formally and solemnly declared Emil Ong, respondent's full brother, as a natural born Filipino. The Constitutional Convention had to be aware of the meaning of natural born citizenship since it was precisely amending the article on this subject. cdll The private respondent frequently went home to Laoang, Samar, where he grew up and spent his childhood days. In 1984, the private respondent married a Filipina named Desiree Lim. For the elections of 1984 and 1986, Jose Ong, Jr. registered himself as a voter of Laoang, Samar, and correspondingly, voted there during those elections. The private respondent after being engaged for several years in the management of their family business decided to be of greater service to his province and ran for public office. Hence, when the

opportunity came in 1987, he ran in the elections for representative in the second district of Northern Samar. Mr. Ong was overwhelmingly voted by the people of Northern Samar as their representative in Congress. Even if the total votes of the two petitioners are combined, Ong would still lead the two by more than 7,000 votes. The pertinent portions of the Constitution found in Article IV read:. "SECTION 1, the following are citizens of the Philippines: 1. Those who are citizens of the Philippines at the time of the adoption of the Constitution; 2. Those whose fathers or mothers are citizens of the Philippines; 3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and 4. Those who are naturalized in accordance with law. SECTION 2, Natural-born Citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their citizenship. Those who elect Philippine citizenship in accordance with paragraph 3 hereof shall be deemed natural born citizens."

The Court interprets Section 1, Paragraph 3 above as applying not only to those who elect Philippine citizenship after February 2, 1987 but also to those who, having been born of Filipino mothers, elected citizenship before that date. The provision in Paragraph 3 was intended to correct an unfair position which discriminates against Filipino women. There is no ambiguity in the deliberations of the Constitutional Commission, viz: "Mr. Azcuna: With respect to the provision of section 4, would this refer only to those who elect Philippine citizenship after the effectivity of the 1973 Constitutionor would it also cover those who elected it under the 1973 Constitution? Fr. Bernas: It would apply to anybody who elected Philippine citizenship by virtue of the provision of the 1935 Constitution whether the election was done before or after January l7, 1973." (Records of the Constitutional Commission, Vol. 1, p. 228; Emphasis supplied). xxx xxx xxx "Mr. Trenas: The Committee on Citizenship, Bill of Rights, Political Rights and Obligations and Human Rights has more or less decided to extend the interpretation of who is a natural-born Citizen as provided in section 4 of the 1973 Constitution by adding that persons who have elected Philippine Citizenship under the 1935 Constitution shall be natural-born? Am I right Mr. Presiding Officer? Fr. Bernas: yes."

xxx xxx xxx "Mr. Nolledo: And I remember very well that in the Reverend Father Bernas' well written book, he said that the decision was designed merely to accommodate former delegate Ernesto Ang and that the definition on natural-born has no retroactive effect. Now it seems that the Reverend Father Bernas is going against this intention by supporting the amendment? Fr. Bernas: As the Commissioner can see, there has been an evolution in my thinking. (Records of the Constitutional Commission, Vol. 1, p. 189) xxx xxx xxx "Mr. Rodrigo: But this provision becomes very important because his election of Philippine citizenship makes him not only a Filipino citizen but a natural-born Filipino citizen entitling him to run for Congress . . . Fr. Bernas: Correct. We are quite aware of that and for that reason we will leave it to the body to approve that provision of section 4. Mr. Rodrigo: I think there is a good basis for the provision because it strikes me as unfair that the Filipino citizen who was born a day before January 17, 1973 cannot be a Filipino citizen or a natural born citizen." (Records of the Constitutional Commission, Vol. 1, p. 231) xxx xxx xxx "Mr. Rodrigo: The purpose of that provision is to remedy an inequitable situation. Between 1935 and 1973 when we were under the 1935 Constitution, those born of Filipino fathers but alien mothers were natural-born Filipinos. However, those born of Filipino mothers but alien fathers would have to elect Philippine citizenship upon reaching the age of majority; and if they do elect, they become Filipino citizens but not natural-born Filipino citizens." (Records of the Constitutional Commission, Vol. 1, p. 356) The foregoing significantly reveals the intent of the framers. To make the provision prospective from February 3, 1987 is to give a narrow interpretation resulting in an inequitable situation. It must also be retroactive. It should be noted that in construing the law, the Courts are not always to be hedged in by the literal meaning of its language. The spirit and intendment thereof, must prevail over the letter, especially where adherence to the latter would result in absurdity and injustice. (Casela v. Court of Appeals, 35 SCRA 279 [1970]) A Constitutional provision should be construed so as to give it effective operation and suppress the mischief at which it is aimed, hence, it is the spirit of the provision which should prevail over the letter thereof. (Jarrolt v. Mabberly, 103 U.S. 580)

In the words of the Court in the case of J.M. Tuason v. LTA (31 SCRA 413 [1970]: "To that primordial intent, all else is subordinated. Our Constitution, any constitution is not to be construed narrowly or pedantically, for the prescriptions therein contained, to paraphrase Justice Holmes, are not mathematical formulas having their essence in their form but are organic living institutions, the significance of which is vital not formal . . ." (p. 427) The provision in question was enacted to correct the anomalous situation where one born of a Filipino father and an alien mother was automatically granted the status of a natural-born citizen while one born of a Filipino mother and an alien father would still have to elect Philippine citizenship. If one so elected, he was not, under earlier laws, conferred the status of a natural-born. Under the 1973 Constitution, those born of Filipino fathers and those born of Filipino mothers with an alien father were placed on equal footing. They were both considered as natural-born citizens. Hence, the bestowment of the status of "natural-born" cannot be made to depend on the fleeting accident of time or result in two kinds of citizens made up of essentially the same similarly situated members. It is for this reason that the amendments were enacted, that is, in order to remedy this accidental anomaly, and, therefore, treat equally all those born before the 1973 Constitution and who elected Philippine citizenship either before or after the effectivity of that Constitution. Cdpr The Constitutional provision in question is, therefore curative in nature. The enactment was meant to correct the inequitable and absurd situation which then prevailed, and thus, render those acts valid which would have been nil at the time had it not been for the curative provisions. (See Development Bank of the Philippines v. Court of Appeals, 96 SCRA 342 [1980]) There is no dispute that the respondent's mother was a natural born Filipina at the time of her marriage. Crucial to this case is the issue of whether or not the respondent elected or chose to be a Filipino citizen. Election becomes material because Section 2 of Article IV of the Constitution accords natural born status to children born of Filipino mothers before January 17, 1973, if they elect citizenship upon reaching the age of majority. To expect the respondent to have formally or in writing elected citizenship when he came of age is to ask for the unnatural and unnecessary. The reason is obvious. He was already a citizen. Not only was his mother a natural born citizen but his father had been naturalized when the respondent was only nine (9) years old. He could not have divined when he came of age that in 1973 and 1987 the Constitution would be amended to require him to have filed a sworn statement in 1969 electing citizenship inspite of his already having been a citizen since 1957. In 1969, election through a sworn statement would have been an unusual and unnecessary procedure for one who had been a citizen since he was nine years old. We have jurisprudence that defines "election" as both a formal and an informal process. In the case of In Re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the exercise of the right of suffrage and the participation in election exercises constitute a positive act of election of Philippine citizenship. In the exact pronouncement of the Court, we held: "Esteban's exercise of the right of suffrage when he came of age, constitutes a positive act of election of Philippine citizenship". (p. 52; emphasis supplied) The private respondent did more than merely exercise his right of suffrage. He has established his life here in the Philippines.

For those in the peculiar situation of the respondent who cannot be expected to have elected citizenship as they were already citizens, we apply the In Re Mallare rule. The respondent was born in an outlying rural town of Samar where there are no alien enclaves and no racial distinctions. The respondent has lived the life of a Filipino since birth. His father applied for naturalization when the child was still a small boy. He is a Roman Catholic. He has worked for a sensitive government agency. His profession requires citizenship for taking the examinations and getting a license. He has participated in political exercises as a Filipino and has always considered himself a Filipino citizen. There is nothing in the records to show that he does not embrace Philippine customs and values, nothing to indicate any tinge of alien-ness, no acts to show that this country is not his natural homeland. The mass of voters of Northern Samar are fully aware of Mr. Ong's parentage. They should know him better than any member of this Court will ever know him. They voted by overwhelming numbers to have him represent them in Congress. Because of his acts since childhood, they have considered him as a Filipino. The filing of sworn statement or formal declaration is a requirement for those who still have to elect citizenship. For those already Filipinos when the time to elect came up, there are acts of deliberate choice which cannot be less binding. Entering a profession open only to Filipinos, serving in public office where citizenship is a qualification, voting during election time, running for public office, and other categorical acts of similar nature are themselves formal manifestations of choice for these persons. LLjur An election of Philippine citizenship presupposes that the person electing is an alien. Or his status is doubtful because he is a national of two countries. There is no doubt in this case about Mr. Ong's being a Filipino when he turned twenty-one (21). We repeat that any election of Philippine citizenship on the part of the private respondent would not only have been superfluous but it would also have resulted in an absurdity. How can a Filipino citizen elect Philippine citizenship? The respondent HRET has an interesting view as to how Mr. Ong elected citizenship. It observed that "when protestee was only nine years of age, his father, Jose Ong Chuan became a naturalized Filipino. Section 15 of the Revised Naturalization Act squarely applies its benefit to him for he was then a minor residing in this country. Concededly, it was the law itself that had already elected Philippine citizenship for protestee by declaring him as such." (Emphasis supplied)

The petitioners argue that the respondent's father was not, validly, a naturalized citizen because of his premature taking of the oath of citizenship. The Court cannot go into the collateral procedure of stripping Mr. Ong's father of his citizenship after his death and at this very late date just so we can go after the son. The petitioners question the citizenship of the father through a collateral approach. This can not be done. In our jurisdiction, an attack on a person's citizenship may only be done through a direct action for its nullity. (See Queto v. Catolico, 31 SCRA 52 [1970]). To ask the Court to declare the grant of Philippine citizenship to Jose Ong Chuan as null and void would run against the principle of due process. Jose Ong Chuan has already been laid to rest. How can he be given a fair opportunity to defend himself. A dead man cannot speak. To quote the words of the HRET: "Ong Chuan's lips have long been muted to perpetuity by his demise and obviously he could not rise beyond where his mortal remains now lie to defend himself were this matter to be made a central issue in this case." The issue before us is not the nullification of the grant of citizenship to Jose Ong Chuan. Our function is to determine whether or not the HRET committed abuse of authority in the exercise of its powers.

Moreover, the respondent traces his natural born citizenship through his mother, not through the citizenship of his father. The citizenship of the father is relevant only to determine whether or not the respondent "chose" to be a Filipino when he came of age. At that time and up to the present, both mother and father were Filipinos. Respondent Ong could not have elected any other citizenship unless he first formally renounced Philippine citizenship in favor of a foreign nationality. Unlike other persons faced with a problem of election, there was no foreign nationality of his father which he could possibly have chosen. There is another reason why we cannot declare the HRET as having committed manifest grave abuse of discretion. The same issue of natural-born citizenship has already been decided by the Constitutional Convention of 1971 and by the Batasang Pambansa convened by authority of the Constitutiondrafted by that Convention. Emil Ong, full blood brother of the respondent, was declared and accepted as a natural born citizen by both bodies. Assuming that our opinion is different from that of the Constitutional Convention, the Batasang Pambansa, and the respondent HRET, such a difference could only be characterized as error. There would be no basis to call the HRET decision so arbitrary and whimsical as to amount to grave abuse of discretion. What was the basis for the Constitutional Convention's declaring Emil Ong a natural born citizen? Under the Philippine Bill of 1902, inhabitants of the Philippines who were Spanish subjects on the 11th day of April 1899 and then residing in said islands and their children born subsequent thereto were conferred the status of a Filipino citizen. Was the grandfather of the private respondent a Spanish subject? Article 17 of the Civil Code of Spain enumerates those who were considered Spanish Subjects, viz: "ARTICLE 17. The following are Spaniards: 1. Persons born in Spanish territory. 2. Children born of a Spanish father or mother, even though they were born out of Spain. 3. Foreigners who may have obtained naturalization papers. 4. Those without such papers, who may have acquired domicile in any town in the Monarchy." (Emphasis supplied) The domicile of a natural person is the place of his habitual residence. This domicile, once established is considered to continue and will not be deemed lost until a new one is established. (Article 50, NCC; Article 40, Civil Code of Spain; Zuellig v. Republic, 83 Phil. 768 [1949]) As earlier stated, Ong Te became a permanent resident of Laoang, Samar around 1895. Correspondingly, a certificate of residence was then issued to him by virtue of his being a resident of Laoang, Samar. (Report of the Committee on Election Protests and Credentials of the 1971 Constitutional Convention, September 7,1972, p. 3) The domicile that Ong Te established m 1895 continued until April 11, 1899; it even went beyond the turn of the 19th century. It is also in this place were Ong Te set-up his business and acquired his real property. As concluded by the Constitutional Convention Ong Te falls within the meaning of sub-paragraph 4 of Article 17 of the Civil Code of Spain. Although Ong Te made brief visits to China, he, nevertheless, always returned to the Philippines. The fact that he died in China, during one of his visits in said country, was of no moment. This will not

change the fact that he already had his domicile fixed in the Philippines and pursuant to the Civil Code of Spain, he had become a Spanish subject. LibLex If Ong Te became a Spanish subject by virtue of having established his domicile in a town under the Monarchy of Spain, necessarily, Ong Te was also an inhabitant of the Philippines for an inhabitant has been defined as one who has actual fixed residence in a place; one who has a domicile in a place. (Bouvier's Law Dictionary, Vol. II) A priori, there can be no other logical conclusion but to educe that Ong Te qualified as a Filipino citizen under the provisions of section 4 of the Philippine Bill of 1902. The HRET itself found this fact of absolute verity in concluding that the private respondent was a natural-born Filipino. The petitioners' sole ground in disputing this fact is that the documents presented to prove it were not in compliance with the best evidence rule. The petitioners allege that the private respondent failed to present the original of the documentary evidence, testimonial evidence and of the transcript of the proceedings of the body which the aforesaid resolution of the 1971 Constitutional Convention was predicated. On the contrary, the documents presented by the private respondent fall under the exceptions to the best evidence rule. It was established in the proceedings before the HRET that the originals of the Committee Report No. 12, the minutes of the plenary session of 1971 Constitutional Convention held on November 28, 1972 cannot be found. This was affirmed by Atty. Ricafrente, Assistant Secretary of the 1971 Constitutional Convention; by Atty. Nolledo, Delegate to the 1971 Constitutional Convention; and by Atty. Antonio Santos, Chief Librarian of the U.P. Law Center, in their respective testimonies given before the HRET to the effect that there is no governmental agency which is the official custodian of the records of the 1971 Constitutional Convention. (TSN, December 12, 1988, pp. 30-31; TSN, January 17, 1989, pp. 34-35; TSN, February 1, 1989, p. 44; TSN, February 6, 1989, pp. 28-29) The execution of the originals was established by Atty. Ricafrente, who as the Assistant Secretary of the 1971 Constitutional Convention was the proper party to testify to such execution. (TSN, December 12, 1989, pp. 11-24) The inability to produce the originals before the HRET was also testified to as aforestated by Atty. Ricafrente, Atty. Nolledo, and Atty. Santos. In proving the inability to produce, the law does not require the degree of proof to be of sufficient certainty; it is enough that it be shown that after a bona fide diligent search, the same cannot be found. (see Government of P.I. v. Martinez, 44 Phil. 817 [1918]) Since the execution of the document and the inability to produce were adequately established, the contents of the questioned documents can be proven by a copy thereof or by the recollection of witnesses. Moreover, to erase all doubts as to the authenticity of the documentary evidence cited in the Committee Report, the former member of the 1971 Constitutional Convention, Atty. Nolledo, when he was presented as a witness in the hearing of the protest against the private respondent, categorically stated that he saw the disputed documents presented during the hearing of the election protest against the brother of the private respondent. (TSN, February 1, 1989, pp. 8-9) In his concurring opinion, Mr. Justice Sarmiento, a vice-president of the Constitutional Convention, states that he was presiding officer of the plenary session which deliberated on the report on the election protest against Delegate Emil Ong. He cites a long list of names of delegates present. Among them are Mr. Chief Justice Fernan, and Mr. Justice Davide, Jr. The petitioners could have

presented any one of the long list of delegates to refute Mr. Ong's having been declared a naturalborn citizen. They did not do so. Nor did they demur to the contents of the documents presented by the private respondent. They merely relied on the procedural objections respecting the admissibility of the evidence presented. The Constitutional Convention was the sole judge of the qualifications of Emil Ong to be a member of that body. The HRET, by explicit mandate of theConstitution, is the sole judge of the qualifications of Jose Ong, Jr. to be a member of Congress. Both bodies deliberated at length on the controversies over which they were sole judges. Decisions were arrived at only after a full presentation of all relevant factors which the parties wished to present. Even assuming that we disagree with their conclusions, we cannot declare their acts as committed with grave abuse of discretion. We have to keep clear the line between error and grave abuse. ON THE ISSUE OF RESIDENCE The petitioners question the residence qualification of respondent Ong. The petitioners lose sight of the meaning of "residence" under the Constitution. The term "residence" has been understood as synonymous with domicilenot only under the previous Constitutions but also under the 1987 Constitution. The deliberations of the Constitutional Commission reveal that the meaning of residence vis-a-vis the qualifications of a candidate for Congress continues to remain the same as that of domicile, to wit:

"Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, there was an attempt to require residence in the place not less than one year immediately preceding the day of the elections. So my question is: What is the Committee's concept of residence of a candidate for the legislature? Is it actual residence or is it the concept of domicile or constructive residence? Mr. Davide: Madame President, 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." (Records of the 1987 Constitutional Convention, Vol. II, July 22, 1986, p. 87) xxx xxx xxx "Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo has raised the same point that 'resident' has been interpreted at times as a matter of intention rather than actual residence. Mr. De los Reyes: Domicile. Ms. Rosario Braid: Yes, So, would the gentlemen consider at the proper time to go back to actual residence rather than mere intention to reside?

Mr. De los Reyes: But we might encounter some difficulty especially considering that a provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted by law. So, we have to stick to the original concept that it should be by domicile and not physical and actual residence." (Records of the 1987 Constitutional Commission, Vol. II, July 22, 1986, p. 110) The framers of the Constitution adhered to the earlier definition given to the word "residence" which regarded it as having the same meaning as domicile. The term "domicile" denotes a fixed permanent residence to which when absent for business or pleasure, one intends to return. (Ong Huan Tin v. Republic, 19 SCRA 966 [1967]) The absence of a person from said permanent residence, no matter how long, notwithstanding, it continues to be the domicile of that person. In other words, domicile is characterized by animus revertendi. (Ujano v. Republic, 17 SCRA 147 [1966]) cdphil The domicile of origin of the private respondent, which was the domicile of his parents, is fixed at Laoang, Samar. Contrary to the petitioners' imputation, Jose Ong, Jr. never abandoned said domicile; it remained fixed therein even up to the present. The private respondent, in the proceedings before the HRET, sufficiently established that after the fire that gutted their house in 1961, another one was constructed. Likewise, after the second fire which again destroyed their house in 1975, a sixteen-door apartment was built by their family, two doors of which were reserved as their family residence. (TSN, Jose Ong, Jr., November 18, 1988, p. 8) The petitioners' allegation that since the private respondent owns no property in Laoang, Samar, he cannot, therefore, be a resident of said place is misplaced. The properties owned by the Ong Family are in the name of the private respondent's parents. Upon the demise of his parents, necessarily, the private respondent, pursuant to the laws of succession, became the co-owner thereof (as a co-heir), notwithstanding the fact that these were still in the names of his parents. Even assuming that the private respondent does not own any property in Samar, the Supreme Court in the case of De los Reyes D. Solidum (61 Phil. 893 [1935]) held that it is not required that a person should have a house in order to establish his residence and domicile. It is enough that he should live in the municipality or in a rented house or in that of a friend or relative. (Emphasis supplied) To require the private respondent to own property in order to be eligible to run for Congress would be tantamount to a property qualification. TheConstitution only requires that the candidate meet the age, citizenship, voting and residence requirements. Nowhere is it required by the Constitution that the candidate should also own property in order to be qualified to run. (see Maquera v. Borra, 122 Phil. 412 [1965]) It has also been settled that absence from residence to pursue studies or practice a profession or registration as a voter other than in the place where one is elected, does not constitute loss of residence. (Faypon v. Quirino, 96 Phil. 294 [1954]) As previously stated, the private respondent stayed in Manila for the purpose of finishing his studies and later to practice his profession. There was no intention to abandon the residence in Laoang, Samar. On the contrary, the periodical journeys made to his home province reveal that he always had theanimus revertendi.

The Philippines is made up not only of a single race; it has, rather, undergone an interracial evolution. Throughout our history, there has been a continuing influx of Malays, Chinese, Americans, Japanese, Spaniards and other nationalities. This racial diversity gives strength to our country. Many great Filipinos have not been whole-blooded nationals, if there is such a person, for there is none. To mention a few, the great Jose Rizal was part Chinese, the late Chief Justice Claudio Teehankee was part Chinese, and of course our own President, Corazon Aquino is also part Chinese. Verily, some Filipinos of whom we are proud were ethnically more Chinese than the private respondent. Our citizens no doubt constitute the country's greatest wealth. Citizenship is a special privilege which one must forever cherish. However, in order to truly revere this treasure of citizenship, we do not, on the basis of too harsh an interpretation, have to unreasonably deny it to those who qualify to share in its richness. Under the overly strict jurisprudence surrounding our antiquated naturalization laws only the very affluent backed by influential patrons, who were willing to suffer the indignities of a lengthy, sometimes humiliating, and often corrupt process of clearances by minor bureaucrats and whose lawyers knew how to overcome so many technical traps of the judicial process were able to acquire citizenship. It is time for the naturalization law to be revised to enable a more positive, affirmative, and meaningful examination of an applicant's suitability to be a Filipino. A more humane, more indubitable and less technical approach to citizenship problems is essential. WHEREFORE, the petitions are hereby DISMISSED. The questioned decision of the house of Representatives Electoral Tribunal is AFFIRMED. Respondent Jose Ong, Jr. is declared a naturalborn citizen of the Philippines and a resident of Laoang, Northern Samar. SO ORDERED. ||| (Co v. House of Representatives Electoral Tribunal, G.R. Nos. 92191-92, 92202-03, [July 30, 1991], 276 PHIL 758-830)

[G.R. No. 125793. August 29, 2006.] JOEVANIE ARELLANO TABASA, petitioner, vs. HON. COURT OF APPEALS, BUREAU OF IMMIGRATION and DEPORTATION and WILSON SOLUREN, respondents.

DECISION

VELASCO, JR., J p: Citizenship is a priceless possession. Former U.S. Chief Justice Earl Warren fittingly emphasized its crowning value when he wrote that "it is man's basic right for it is nothing less than to have rights." 1 When a person loses citizenship, therefore, the State sees to it that its reacquisition may only be granted if the former citizen fully satisfies all conditions and complies with the applicable law. Without doubt, repatriation is not to be granted simply based on the vagaries of the former Filipino citizen. The Case

The instant petition for review 2 under Rule 45 of the 1997 Rules of Civil Procedure contests the denial by the Court of Appeals (CA) of the Petition forHabeas Corpus interposed by petitioner Joevanie Arellano Tabasa from the Order of Summary Deportation issued by the Bureau of Immigration and Deportation (BID) for his return to the United States. The Facts The facts as culled by the CA from the records show that petitioner Joevanie Arellano Tabasa was a natural-born citizen of the Philippines. In 1968, 3 when petitioner was seven years old, 4 his father, Rodolfo Tabasa, became a naturalized citizen 5 of the United States. By derivative naturalization (citizenship derived from that of another as from a person who holds citizenship by virtue of naturalization 6 ), petitioner also acquired American citizenship. Petitioner arrived in the Philippines on August 3, 1995, and was admitted as a "balikbayan" for one year. Thereafter, petitioner was arrested and detained by agent Wilson Soluren of the BID on May 23, 1996, pursuant to BID Mission Order No. LIV-96-72 in Baybay, Malay, Aklan; subsequently, he was brought to the BID Detention Center in Manila. 7 Petitioner was investigated by Special Prosecutor Atty. Edy D. Donato at the Law and Investigation Division of the BID on May 28, 1996; and on the same day, Tabasa was accused of violating Section 8, Chapter 3, Title 1, Book 3 of the 1987 Administrative Code, in a charge sheet which alleged: 1. That on 3 August 1995, respondent (petitioner herein [Tabasa]) arrived in the Philippines and was admitted as a balikbayan; 2. That in a letter dated 16 April 1996, Honorable Kevin Herbert, Consul General of [the] U.S. Embassy, informed the Bureau that respondent's Passport No. 053854189 issued on June 10, 1994 in San Francisco, California, U.S.A., had been revoked by the U.S. Department of State; 3. Hence, respondent [petitioner Tabasa] is now an undocumented and undesirable alien and may be summarily deported pursuant to Law and Intelligence Instructions No. 53 issued by then Commissioner Miriam Defensor Santiago to effect his deportation (Exhibit 3). 8 The pertinent portion of the Herbert letter is as follows: The U.S. Department of State has revoked U.S. passport 053854189 issued on June 10, 1994 in San Francisco, California under the name of Joevanie Arellano Tabasa, born on February 21, 1959 in the Philippines. Mr. Tabasa's passport has been revoked because he is the subject of an outstanding federal warrant of arrest issued on January 25, 1996 by the U.S. District Court for the Northern District of California, for violation of Section 1073, "Unlawful Flight to Avoid Prosecution," of Title 18 of the United States Code. He is charged with one count of a felon in possession of a firearm, in violationof California Penal Code, Section 12021(A)(1), and one count of sexual battery, in violation of California Penal Code, Section 243.4 (D). 9 The BID ordered petitioner's deportation to his country of origin, the United States, on May 29, 1996, in the following summary deportation order: Records show that on 16 April 1996, Mr. Kevin F. Herbert, Consul General of the U.S. Embassy in Manila, filed a request with the Bureau to apprehend and deport the abovenamed [sic] respondent [petitioner Tabasa] on the ground that a standing warrant for several federal charges has been issued against him, and that the respondent's Passport No. 053854189 has been revoked. AaSTIH

By reason thereof, and on the strength of Mission Order No. LIV-96-72, Intelligence operatives apprehended the respondent in Aklan on 23 May 1996. In Schonemann vs. Commissioner Santiago, et al., (G.R. No. 81461 [sic, '81461' should be '86461'], 30 May 1989), the Supreme Court ruled that if a foreign embassy cancels the passport of an alien, or does not reissue a valid passport to him, the alien loses the privilege to remain in the country. Further, under Office Memorandum Order No. 34 issued on 21 August 1989, summary deportation proceedings lie where the passport of the alien has expired. It is, thus, apparent that respondent has lost his privilege to remain in the country. 10 Petitioner filed before the CA a Petition for Habeas Corpus with Preliminary Injunction and/or Temporary Restraining Order 11 on May 29, 1996, which was docketed as CA-G.R. SP No. 40771. Tabasa alleged that he was not afforded due process; that no warrant of arrest for deportation may be issued by immigration authorities before a final order of deportation is made; that no notice of the cancellation of his passport was made by the U.S. Embassy; that he is entitled to admission or to a change of his immigration status as a non-quota immigrant because he is married to a Filipino citizen as provided in Section 13, paragraph (a) of the Philippine Immigration Act of 1940; and that he was a natural-born citizen of the Philippines prior to his derivative naturalization when he was seven years old due to the naturalization of his father, Rodolfo Tabasa, in 1968. At the time Tabasa filed said petition, he was already 35 years old. 12 On May 30, 1996, the CA ordered the respondent Bureau to produce the person of the petitioner on June 3, 1996 and show the cause of petitioner's detention, and restrained the Bureau from summarily deporting him. On June 3, 1996, the BID presented Tabasa before the CA; and on June 6, 1996, the CA granted both parties ten (10) days within which to file their memoranda, after which the case would be considered submitted for decision. 13 Meanwhile, the Commissioner of Immigration granted the petitioner's temporary release on bail on a PhP20,000.00 cash bond. 14 However, on June 13, 1996, petitioner filed a Supplemental Petition alleging that he had acquired Filipino citizenship by repatriation in accordance withRepublic Act No. 8171 (RA 8171), and that because he is now a Filipino citizen, he cannot be deported or detained by the respondent Bureau. 15 The Ruling of the Court of Appeals The CA, in its August 7, 1996 Decision, 16 denied Tabasa's petition on the ground that he had not legally and successfully acquired — by repatriation — his Filipino citizenship as provided in RA 8171. The court said that although he became an American citizen by derivative naturalization when his father was naturalized in 1968, there is no evidence to show that he lost his Philippine citizenship "on account of political or economic necessity," as explicitly provided in Section 1, RA 8171 — the law governing the repatriation of natural-born Filipinos who have lost their citizenship. The affidavit does not state that political or economic necessity was the compelling reason for petitioner's parents to give up their Filipino citizenship in 1968. Moreover, the court a quo found that petitioner Tabasa did not dispute the truth of the April 16, 1996 letter of the United States Consul General Kevin F. Herbert or the various warrants issued for his arrest by the United States court. The court a quo noted that after petitioner was ordered deported by the BID on May 29, 1996, he successively executed an Affidavit of Repatriation on June 6, 1996 and took an oath of allegiance to the Republic of the Philippines on June 13, 1996 — more than ten months after his arrival in the country on August 3, 1995. The appellate court considered petitioner's "repatriation" as a last ditch effort to avoid deportation and prosecution in the United States. The appellate court concluded that his only reason to want to reacquire Filipino citizenship is to avoid criminal prosecution in the United States of America. The court a quo, therefore, ruled against Tabasa, whose petition is now before us. The Issue

The only issue to be resolved is whether petitioner has validly reacquired Philippine citizenship under RA 8171. If there is no valid repatriation, then he can be summarily deported for his being an undocumented alien. The Court's Ruling The Court finds no merit in this petition. RA 8171, "An Act Providing for the Repatriation of Filipino Women Who Have Lost Their Philippine Citizenship by Marriage to Aliens and of Natural-Born Filipinos," was enacted on October 23, 1995. It provides for the repatriation of only two (2) classes of persons, viz: Filipino women who have lost their Philippine citizenship by marriage to aliens and natural-born Filipinos who have lost their Philippine citizenship, including their minor children, on account of political or economic necessity, may reacquire Philippine citizenship through repatriation in the manner provided in Section 4 of Commonwealth Act No. 63, as amended: Provided, That the applicant is not a: (1) Person opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing organized government; (2) Person defending or teaching the necessity or propriety of violence, personal assault, or association for the predominance of their ideas; (3) Person convicted of crimes involving moral turpitude; or (4) Person suffering from mental alienation or incurable contagious diseases. 17 (Emphasis supplied.)

Does petitioner Tabasa qualify as a natural-born Filipino who had lost his Philippine citizenship by reason of political or economic necessity under RA 8171? He does not. Persons qualified for repatriation under RA 8171 To reiterate, the only persons entitled to repatriation under RA 8171 are the following: a. Filipino women who lost their Philippine citizenship by marriage to aliens; and b. Natural-born Filipinos including their minor children who lost their Philippine citizenship on account of political or economic necessity. Petitioner theorizes that he could be repatriated under RA 8171 because he is a child of a naturalborn Filipino, and that he lost his Philippine citizenship by derivative naturalization when he was still a minor. TDAcCa Petitioner overlooks the fact that the privilege of repatriation under RA 8171 is available only to natural-born Filipinos who lost their citizenship on accountof political or economic necessity, and to the minor children of said natural-born Filipinos. This means that if a parent who had renounced his Philippine citizenship due to political or economic reasons later decides to repatriate under RA 8171, his repatriation will also benefit his minor children according to the law. This includes a situation where a former Filipino subsequently had children while he was a naturalized citizen of a foreign country. The repatriationof the former Filipino will allow him to recover his natural-born citizenship and automatically vest Philippine citizenship on his children of jus sanguinis or blood relationship: 18 the children acquire the citizenship of their parent(s) who are natural-born Filipinos. To claim the benefit of RA 8171, however, the children must be of minor age at the time the petition for repatriation is filed by the parent. This is so because a child does not have the legal capacity for all acts of civil life

much less the capacity to undertake a political act like the election of citizenship. On their own, the minor children cannot apply for repatriation or naturalization separately from their parents. In the case at bar, there is no dispute that petitioner was a Filipino at birth. In 1968, while he was still a minor, his father was naturalized as an American citizen; and by derivative naturalization, petitioner acquired U.S. citizenship. Petitioner now wants us to believe that he is entitled to automatic repatriation as a child of natural-born Filipinos who left the country due to political or economic necessity. This is absurd. Petitioner was no longer a minor at the time ofhis "repatriation" on June 13, 1996. The privilege under RA 8171 belongs to children who are of minor age at the time of the filing of the petition for repatriation. Neither can petitioner be a natural-born Filipino who left the country due to political or economic necessity. Clearly, he lost his Philippine citizenship by operation of law and not due to political or economic exigencies. It was his father who could have been motivated by economic or political reasons in deciding to apply for naturalization. The decision was his parent's and not his. The privilege of repatriation under RA 8171 is extended directly to the natural-born Filipinos who could prove that they acquired citizenship of a foreign country due to political and economic reasons, and extended indirectly to the minor children at the time of repatriation. In sum, petitioner is not qualified to avail himself of repatriation under RA 8171. However, he can possibly reacquire Philippine citizenship by availing of theCitizenship Retention and Re-acquisition Act of 2003 (Republic Act No. 9225) by simply taking an oath of allegiance to the Republic of the Philippines. Where to file a petition for repatriation pursuant to RA 8171 Even if we concede that petitioner Tabasa can avail of the benefit of RA 8171, still he failed to follow the procedure for reacquisition of Philippine citizenship. He has to file his petition for repatriation with the Special Committee on Naturalization (SCN), which was designated to process petitions for repatriation pursuant to Administrative Order No. 285 (A.O. No. 285) dated August 22, 1996, to wit: SECTION 1. Composition. — The composition of the Special Committee on Naturalization, with the Solicitor General as Chairman, the Undersecretary ofForeign Affairs and the Director-General of the National Intelligence Coordinating Agency, as members, shall remain as constituted. SECTION 2. Procedure. — Any person desirous of repatriating or reacquiring Filipino citizenship pursuant to R.A. No. 8171 shall file a petition with the Special Committee on Naturalization which shall process the same. If their applications are approved[,] they shall take the necessary oath ofallegiance to the Republic of the Philippines, after which they shall be deemed to have reacquired Philippine citizenship. The Commission on Immigration and Deportation shall thereupon cancel their certificate of registration (emphasis supplied). SECTION 3. Implementing Rules. — The Special Committee is hereby authorized to promulgate rules and regulations and prescribe the appropriate forms and the required fees for the processing of petitions. SECTION 4. Effectivity. — This Administrative Order shall take effect immediately. In the Amended Rules and Regulations Implementing RA 8171 issued by the SCN on August 5, 1999, applicants for repatriation are required to submit documents in support of their petition such as their birth certificate and other evidence proving their claim to Filipino citizenship. 19 These requirements were imposed to enable the SCN to verify the qualifications of the applicant particularly in light of the reasons for the renunciation of Philippine citizenship.

What petitioner simply did was that he took his oath of allegiance to the Republic of the Philippines; then, executed an affidavit of repatriation, which he registered, together with the certificate of live birth, with the Office of the Local Civil Registrar of Manila. The said office subsequently issued him a certificate of such registration. 20 At that time, the SCN was already in place and operational by virtue of the June 8, 1995 Memorandum issued by President Fidel V. Ramos. 21 Although A.O. No. 285 designating the SCN to process petitions filed pursuant to RA 8171 was issued only on August 22, 1996, it is merely a confirmatory issuance according to the Court in Angat v. Republic. 22 Thus, petitioner should have instead filed a petition for repatriation before the SCN. Requirements for repatriation under RA 8171 Even if petitioner — now of legal age — can still apply for repatriation under RA 8171, he nevertheless failed to prove that his parents relinquished their Philippine citizenship on account of political or economic necessity as provided for in the law. Nowhere in his affidavit of repatriation did he mention that his parents lost their Philippine citizenship on account of political or economic reasons. It is notable that under the Amended Rules and Regulations Implementing RA 8171, the SCN requires a petitioner for repatriation to set forth, among others, "the reason/s why petitioner lost his/her Filipino citizenship, whether by marriage in case of Filipino woman, or whether by political or economic necessity in case of [a] natural-born Filipino citizen who lost his/her Filipino citizenship. In case of the latter, such political or economic necessity should be specified." 23 Petitioner Tabasa asserts, however, that the CA erred in ruling that the applicant for repatriation must prove that he lost his Philippine citizenship on account of political or economic necessity. He theorizes that the reference to 'political or economic reasons' is "merely descriptive, not restrictive, of the widely accepted reasons for naturalization in [a] foreign country." 24 Petitioner's argument has no leg to stand on. AcaEDC A reading of Section 1 of RA 8171 shows the manifest intent of the legislature to limit the benefit of repatriation only to natural-born Filipinos who lost their Philippine citizenship on account of political or economic necessity, in addition to Filipino women who lost their Philippine citizenship by marriage to aliens. The precursor of RA 8171, Presidential Decree No. 725 (P.D. 725), 25 which was enacted on June 5, 1975 amending Commonwealth Act No. 63, also gives to the same groups of former Filipinos the opportunity to repatriate but without the limiting phrase, "on account of political or economic necessity" in relation to natural-born Filipinos. By adding the said phrase to RA 8171, the lawmakers clearly intended to limit the application of the law only to political or economic migrants, aside from the Filipino women who lost their citizenship by marriage to aliens. This intention is more evident in the following sponsorship speech of Rep. Andrea B. Domingo on House Bill No. 1248, the origin of RA 8171, to wit: Ms. Domingo: . . . From my experience as the Commissioner of the Bureau of Immigration and Deportation, I observed that there are only four types of Filipinos who leave the country. The first is what we call the "economic refugees" who go abroad to work because there is no work to be found in the country. Then we have the "political refugees" who leave the country for fear of their lives because they are not in consonance with the prevailing policy of government. The third type is those who have committed crimes and would like to escape from the punishment of said crimes. Lastly, we have those Filipinos who feel that they are not Filipinos, thereby seeking other citizenship elsewhere.

Of these four types of Filipinos, Mr. Speaker, the first two have to leave the country not of choice, but rather out of sacrifice to look for a better life, as well as for a safer abode for themselves and their families. It is for these two types of Filipinos that this measure is being proposed for approval by this body. (Emphasis supplied.)

xxx xxx xxx . . . [I]f the body would recall, I mentioned in my short sponsorship speech the four types of Filipinos who leave their country. And the two types — the economic and political refugees — are the ones being addressed by this proposed law, and they are not really Filipino women who lost their citizenship through marriage. We had a lot of problems with these people who left the country because of political persecution or because of pressing economic reasons, and after feeling that they should come back to the country and get back their citizenship and participate as they should in the affairs of the country, they find that it is extremely difficult to get their citizenship back because they are treated no different from any other class of alien. 26 From these two sources, namely, P.D. 725 and the sponsorship speech on House Bill No. 1248, it is incontrovertible that the intent of our legislators in crafting Section 1 of RA 8171, as it is precisely worded out, is to exclude those Filipinos who have abandoned their country for reasons other than political or economic necessity. Petitioner contends it is not necessary to prove his political or economic reasons since the act of renouncing allegiance to one's native country constitutes a "necessary and unavoidable shifting of his political allegiance," and his father's loss of Philippine citizenship through naturalization "cannot therefore be said to be for any reason other than political or economic necessity." 27 This argument has no merit. While it is true that renunciation of allegiance to one's native country is necessarily a political act, it does not follow that the act is inevitably politically or economically motivated as alleged by petitioner. To reiterate, there are other reasons why Filipinos relinquish their Philippine citizenship. The sponsorship speech of former Congresswoman Andrea B. Domingo illustrates that aside from economic and political refugees, there are Filipinos who leave the country because they have committed crimes and would like to escape from punishment, and those who really feel that they are not Filipinos and that they deserve a better nationality, and therefore seek citizenship elsewhere. Thus, assuming petitioner Tabasa is qualified under RA 8171, it is incumbent upon him to prove to the satisfaction of the SCN that the reason for his loss ofcitizenship was the decision of his parents to forfeit their Philippine citizenship for political or economic exigencies. He failed to undertake this crucial step, and thus, the sought relief is unsuccessful. Repatriation is not a matter of right, but it is a privilege granted by the State. This is mandated by the 1987 Constitution under Section 3, Article IV, which provides that citizenship may be lost or reacquired in the manner provided by law. The State has the power to prescribe by law the qualifications, procedure, and requirements for repatriation. It has the power to determine if an applicant for repatriation meets the requirements of the law for it is an inherent power of the State to choose who will be its citizens, and who can reacquire citizenship once it is lost. If the applicant, like petitioner Tabasa, fails to comply with said requirements, the State is justified in rejecting the petition for repatriation. Petitioner: an undocumented alien subject to summary deportation Petitioner claims that because of his repatriation, he has reacquired his Philippine citizenship; therefore, he is not an undocumented alien subject to deportation.

This theory is incorrect. As previously explained, petitioner is not entitled to repatriation under RA 8171 for he has not shown that his case falls within the coverage of the law. Office Memorandum No. 34 dated August 21, 1989 of the BID is enlightening on summary deportation: 2. The Board of Special Inquiry and the Hearing Board IV shall observe summary deportation proceedings in cases where the charge against the alien is overstaying, or the expiration or cancellation by his government of his passport. In cases involving overstaying aliens, BSI and the Hearing Board IV shall merely require the presentation of the alien's valid passport and shall decide the case on the basis thereof. 3. If a foreign embassy cancels the passport of the alien, or does not reissue a valid passport to him, the alien loses the privilege to remain in the country, under the Immigration Act, Sections 10 and 15 (Schonemann v. Santiago, et al., G.R. No. 81461 [sic, should be '86461'], 30 May 1989). The automatic loss of the privilege obviates deportation proceedings. In such instance, the Board of Commissioners may issue summary judgment ofdeportation which shall be immediately executory. 28 In addition, in the case of Schonemann v. Defensor Santiago, et al., this Court held: It is elementary that if an alien wants to stay in the Philippines, he must possess the necessary documents. One of these documents is a valid passport. There are, of course, exceptions where in the exercise of its sovereign prerogatives the Philippines may grant refugee status, refuse to extradite an alien, or otherwise allow him or her to stay here even if he [the alien] has no valid passport or Philippine visa. "Boat people" seeking residence elsewhere are examples. However, the grant of the privilege of staying in the Philippines is discretionary on the part of the proper authorities. There is no showing of any grave abuse of discretion, arbitrariness, or whimsicality in the questioned summary judgment. . . . 29 Petitioner Tabasa, whose passport was cancelled after his admission into the country, became an undocumented alien who can be summarily deported. His subsequent "repatriation" cannot bar such deportation especially considering that he has no legal and valid reacquisition of Philippine citizenship. TAacCE WHEREFORE, this petition for review is DISMISSED, and the August 7, 1996 Decision of the Court of Appeals is AFFIRMED. No costs to the petitioner. SO ORDERED. ||| (Tabasa v. Court of Appeals, G.R. No. 125793, [August 29, 2006], 531 PHIL 407-428) [G.R. No. 221697. March 8, 2016.] MARY GRACE NATIVIDAD S. POE-LLAMANZARES, petitioner, vs. COMMISSION ON ELECTIONS AND ESTRELLA C. ELAMPARO, respondents. [G.R. Nos. 221698-700. March 8, 2016.]

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, petitioner, vs. COMMISSION ON ELECTIONS, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D. VALDEZ, respondents.

DECISION

PEREZ, J p: Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the Rules of Court with extremely urgent application for anex parte issuance of temporary restraining order/status quo ante order and/or writ of preliminary injunction assailing the following: (1) 1 December 2015 Resolution of the Commission on Elections (COMELEC) Second Division; (2) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-001 (DC); (3) 11 December 2015 Resolution of the COMELEC First Division; and (4) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139 (DC) for having been issued without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. The Facts Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn infant in the Parish Church of Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3 September 1968. Parental care and custody over petitioner was passed on by Edgardo to his relatives, Emiliano Militar (Emiliano) and his wife. Three days after, 6 September 1968, Emiliano reported and registered petitioner as a foundling with the Office of the Civil Registrar of Iloilo City (OCRIloilo). In her Foundling Certificate and Certificate of Live Birth, the petitioner was given the name "Mary Grace Natividad Contreras Militar." 1 When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a. Fernando Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces) filed a petition for her adoption with the Municipal Trial Court (MTC) of San Juan City. On 13 May 1974, the trial court granted their petition and ordered that petitioner's name be changed from "Mary Grace Natividad Contreras Militar" to "Mary Grace Natividad Sonora Poe." Although necessary notations were made by OCR-Iloilo on petitioner's foundling certificate reflecting the court decreed adoption, 2 the petitioner's adoptive mother discovered only sometime in the second half of 2005 that the lawyer who handled petitioner's adoption failed to secure from the OCR-Iloilo a new Certificate of Live Birth indicating petitioner's new name and the name of her adoptive parents. 3 Without delay, petitioner's mother executed an affidavit attesting to the lawyer's omission which she submitted to the OCR-Iloilo. On 4 May 2006, OCR-Iloilo issued a new Certificate of Live Birth in the name of Mary Grace Natividad Sonora Poe. 4 Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with the local COMELEC Office in San Juan City. On 13 December 1986, she received her COMELEC Voter's Identification Card for Precinct No. 196 in Greenhills, San Juan, Metro Manila. 5 On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F927287 6 by the Department of Foreign Affairs (DFA). Subsequently, on 5 April 1993 and 19 May 1998, she renewed her Philippine passport and respectively secured Philippine Passport Nos. L881511 and DD156616. 7 Initially, the petitioner enrolled and pursued a degree in Development Studies at the University of the Philippines 8 but she opted to continue her studies abroad and left for the United

States of America (U.S.) in 1988. Petitioner graduated in 1991 from Boston College in Chestnuts Hill, Massachusetts where she earned her Bachelor of Arts degree in Political Studies. 9 On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a citizen of both the Philippines and the U.S., at Sanctuario de San Jose Parish in San Juan City. 10 Desirous of being with her husband who was then based in the U.S., the couple flew back to the U.S. two days after the wedding ceremony or on 29 July 1991. 11 While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April 1992. 12 Her two daughters Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were both born in the Philippines on 10 July 1998 and 5 June 2004, respectively. 13 On 18 October 2001, petitioner became a naturalized American citizen. 14 She obtained U.S. Passport No. 017037793 on 19 December 2001. 15 On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support her father's candidacy for President in the May 2004 elections. It was during this time that she gave birth to her youngest daughter Anika. She returned to the U.S. with her two daughters on 8 July 2004. 16 After a few months, specifically on 13 December 2004, petitioner rushed back to the Philippines upon learning of her father's deteriorating medical condition. 17 Her father slipped into a coma and eventually expired. The petitioner stayed in the country until 3 February 2005 to take care of her father's funeral arrangements as well as to assist in the settlement of his estate. 18 According to the petitioner, the untimely demise of her father was a severe blow to her entire family. In her earnest desire to be with her grieving mother, the petitioner and her husband decided to move and reside permanently in the Philippines sometime in the first quarter of 2005. 19 The couple began preparing for their resettlement including notification of their children's schools that they will be transferring to Philippine schools for the next semester; 20 coordination with property movers for the relocation of their household goods, furniture and cars from the U.S. to the Philippines; 21 and inquiry with Philippine authorities as to the proper procedure to be followed in bringing their pet dog into the country. 22 As early as 2004, the petitioner already quit her job in the U.S. 23 Finally, petitioner came home to the Philippines on 24 May 2005 24 and without delay, secured a Tax Identification Number from the Bureau of Internal Revenue. Her three (3) children immediately followed 25 while her husband was forced to stay in the U.S. to complete pending projects as well as to arrange the sale of their family home there. 26 The petitioner and her children briefly stayed at her mother's place until she and her husband purchased a condominium unit with a parking slot at One Wilson Place Condominium in San Juan City in the second half of 2005. 27 The corresponding Condominium Certificates of Title covering the unit and parking slot were issued by the Register of Deeds of San Juan City to petitioner and her husband on 20 February 2006. 28 Meanwhile, her children of school age began attending Philippine private schools. On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of some of the family's remaining household belongings. 29 She travelled back to the Philippines on 11 March 2006. 30 In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the family's change and abandonment of their address in the U.S. 31 The family home was eventually sold on 27 April 2006. 32 Petitioner's husband resigned from his job in the U.S. in April 2006, arrived in the country on 4 May 2006 and started working for a major Philippine company in July 2006. 33

In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian Hills, Quezon City where they built their family home 34and to this day, is where the couple and their children have been residing. 35 A Transfer Certificate of Title covering said property was issued in the couple's name by the Register of Deeds of Quezon City on 1 June 2006. On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant to Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003. 36 Under the same Act, she filed with the Bureau of Immigration (BI) a sworn petition to reacquire Philippine citizenship together with petitions for derivative citizenship on behalf of her three minor children on 10 July 2006. 37 As can be gathered from its 18 July 2006 Order, the BI acted favorably on petitioner's petitions and declared that she is deemed to have reacquired her Philippine citizenship while her children are considered as citizens of the Philippines. 38 Consequently, the BI issued Identification Certificates (ICs) in petitioner's name and in the names of her three (3) children. 39 Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August 2006. 40 She also secured from the DFA a new Philippine Passport bearing the No. XX4731999. 41 This passport was renewed on 18 March 2014 and she was issued Philippine Passport No. EC0588861 by the DFA. 42 On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of the Movie and Television Review and Classification Board (MTRCB). 43 Before assuming her post, petitioner executed an "Affidavit of Renunciation of Allegiance to the United States of America and Renunciation of American Citizenship" before a notary public in Pasig City on 20 October 2010, 44 in satisfaction of the legal requisites stated in Section 5 of R.A. No. 9225. 45 The following day, 21 October 2010 petitioner submitted the said affidavit to the BI 46 and took her oath of office as Chairperson of the MTRCB. 47 From then on, petitioner stopped using her American passport. 48 On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in Manila an "Oath/Affirmation of Renunciation of Nationality of the United States." 49 On that day, she accomplished a sworn questionnaire before the U.S. Vice Consul wherein she stated that she had taken her oath as MTRCB Chairperson on 21 October 2010 with the intent, among others, of relinquishing her American citizenship. 50 In the same questionnaire, the petitioner stated that she had resided outside of the U.S., specifically in the Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to present. 51 On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of Nationality of the United States" effective 21 October 2010.52 On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy (COC) for Senator for the 2013 Elections wherein she answered "6 years and 6 months" to the question "Period of residence in the Philippines before May 13, 2013." 53 Petitioner obtained the highest number of votes and was proclaimed Senator on 16 May 2013. 54 On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No. DE0004530. 55 On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections. 56 In her COC, the petitioner declared that she is a natural-born citizen and that her residence in the Philippines up to the day before 9 May 2016 would be ten (10) years and eleven (11) months counted from 24 May 2005. 57 The petitioner attached to her COC an "Affidavit Affirming Renunciation of U.S.A. Citizenship" subscribed and sworn to before a notary public in Quezon City on 14 October 2015. 58

Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several COMELEC cases against her which were the subject of these consolidated cases. Origin of Petition for Certiorari in G.R. No. 221697 A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a petition to deny due course or cancel said COC which was docketed as SPA No. 15-001 (DC) and raffled to the COMELEC Second Division. 59 She is convinced that the COMELEC has jurisdiction over her petition. 60Essentially, Elamparo's contention is that petitioner committed material misrepresentation when she stated in her COC that she is a natural-born Filipino citizen and that she is a resident of the Philippines for at least ten (10) years and eleven (11) months up to the day before the 9 May 2016 Elections. 61 On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a natural-born Filipino on account of the fact that she was a foundling. 62 Elamparo claimed that international law does not confer natural-born status and Filipino citizenship on foundlings. 63 Following this line of reasoning, petitioner is not qualified to apply for reacquisition of Filipino citizenship under R.A. No. 9225 for she is not a natural-born Filipino citizen to begin with. 64 Even assuming arguendo that petitioner was a natural-born Filipino, she is deemed to have lost that status when she became a naturalized American citizen. 65 According to Elamparo, natural-born citizenship must be continuous from birth. 66 On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the sworn declaration she made in her 2012 COC for Senator wherein she indicated that she had resided in the country for only six (6) years and six (6) months as of May 2013 Elections. Elamparo likewise insisted that assuming arguendo that petitioner is qualified to regain her natural-born status under R.A. No. 9225, she still fell short of the ten-year residency requirement of the Constitution as her residence could only be counted at the earliest from July 2006, when she reacquired Philippine citizenship under the said Act. Also on the assumption that petitioner is qualified to reacquire lost Philippine Citizenship, Elamparo is of the belief that she failed to reestablish her domicile in the Philippines. 67 Petitioner seasonably filed her Answer wherein she countered that: (1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually a petition for quo warranto which could only be filed if Grace Poe wins in the Presidential elections, and that the Department of Justice (DOJ) has primary jurisdiction to revoke the BI's July 18, 2006 Order; (2) the petition failed to state a cause of action because it did not contain allegations which, if hypothetically admitted, would make false the statement in her COC that she is a natural-born Filipino citizen nor was there any allegation that there was a willful or deliberate intent to misrepresent on her part; (3) she did not make any material misrepresentation in the COC regarding her citizenship and residency qualifications for: a. the 1934 Constitutional Convention deliberations show that foundlings were considered citizens; b. foundlings are presumed under international law to have been born of citizens of the place where they are found; c. she reacquired her natural-born Philippine citizenship under the provisions of R.A. No. 9225; d. she executed a sworn renunciation of her American citizenship prior to the filing of her COC for President in the May 9,

2016 Elections and that the same is in full force and effect and has not been withdrawn or recanted; e. the burden was on Elamparo in proving that she did not possess natural-born status; f. residence is a matter of evidence and that she reestablished her domicile in the Philippines as early as May 24, 2005; g. she could reestablish residence even before she reacquired natural-born citizenship under R.A. No. 9225; h. statement regarding the period of residence in her 2012 COC for Senator was an honest mistake, not binding and should give way to evidence on her true date of reacquisition of domicile; i. Elamparo's petition is merely an action to usurp the sovereign right of the Filipino people to decide a purely political question, that is, should she serve as the country's next leader. 68 After the parties submitted their respective Memoranda, the petition was deemed submitted for resolution. On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that petitioner's COC, filed for the purpose of running for the President of the Republic of the Philippines in the 9 May 2016 National and Local Elections, contained material representations which are false. Thefallo of the aforesaid Resolution reads: WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due Course to or Cancel Certificate of Candidacy is herebyGRANTED. Accordingly, the Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016 National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe Llamanzares is hereby CANCELLED. 69 Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which the COMELEC En Banc resolved in its 23 December 2015 Resolution by denying the same. 70 Origin of Petition for Certiorari in G.R. Nos. 221698-700 This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad), Antonio P. Contreras (Contreras) and Amado D. Valdez (Valdez) against petitioner before the COMELEC which were consolidated and raffled to its First Division. In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of Procedure, 71 docketed as SPA No. 15-002 (DC), Tatad alleged that petitioner lacks the requisite residency and citizenship to qualify her for the Presidency. 72 Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons of unknown parentage, particularly foundlings, cannot be considered natural-born Filipino citizens since blood relationship is determinative of natural-born status. 73 Tatad invoked the rule of statutory construction that what is not included is excluded. He averred that the fact that foundlings were not expressly included in the categories of citizens in the1935 Constitution is indicative of the framers' intent to exclude them. 74 Therefore, the burden lies on petitioner to prove that she is a natural-born citizen. 75 Neither can petitioner seek refuge under international conventions or treaties to support her claim that foundlings have a nationality. 76 According to Tatad, international conventions and treaties are not self-executory and that local legislations are necessary in order to give effect to

treaty obligations assumed by the Philippines. 77 He also stressed that there is no standard state practice that automatically confers natural-born status to foundlings. 78 Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to reacquire Philippine citizenship under R.A. No. 9225because it only applies to former natural-born citizens and petitioner was not as she was a foundling. 79 Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the ten (10)-year residency requirement. 80 Tatad opined that petitioner acquired her domicile in Quezon City only from the time she renounced her American citizenship which was sometime in 2010 or 2011. 81Additionally, Tatad questioned petitioner's lack of intention to abandon her U.S. domicile as evinced by the fact that her husband stayed thereat and her frequent trips to the U.S. 82 In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA No. 15-139 (DC), Valdez alleged that her repatriation under R.A. No. 9225 did not bestow upon her the status of a natural-born citizen. 83 He advanced the view that former natural-born citizens who are repatriated under the said Act reacquires only their Philippine citizenship and will not revert to their original status as natural-born citizens. 84 He further argued that petitioner's own admission in her COC for Senator that she had only been a resident of the Philippines for at least six (6) years and six (6) months prior to the 13 May 2013 Elections operates against her. Valdez rejected petitioner's claim that she could have validly reestablished her domicile in the Philippines prior to her reacquisition of Philippine citizenship. In effect, his position was that petitioner did not meet the ten (10)-year residency requirement for President. Unlike the previous COMELEC cases filed against petitioner, Contreras' petition, 85 docketed as SPA No. 15-007 (DC), limited the attack to the residency issue. He claimed that petitioner's 2015 COC for President should be cancelled on the ground that she did not possess the ten-year period of residency required for said candidacy and that she made false entry in her COC when she stated that she is a legal resident of the Philippines for ten (10) years and eleven (11) months by 9 May 2016. 86 Contreras contended that the reckoning period for computing petitioner's residency in the Philippines should be from 18 July 2006, the date when her petition to reacquire Philippine citizenship was approved by the BI. 87 He asserted that petitioner's physical presence in the country before 18 July 2006 could not be valid evidence of reacquisition of her Philippine domicile since she was then living here as an American citizen and as such, she was governed by the Philippine immigration laws. 88 In her defense, petitioner raised the following arguments: First, Tatad's petition should be dismissed outright for failure to state a cause of action. His petition did not invoke grounds proper for a disqualification case as enumerated under Sections 12 and 68 of the Omnibus Election Code. 89 Instead, Tatad completely relied on the alleged lack of residency and natural-born status of petitioner which are not among the recognized grounds for the disqualification of a candidate to an elective office.90 Second, the petitions filed against her are basically petitions for quo warranto as they focus on establishing her ineligibility for the Presidency. 91 A petition for quo warranto falls within the exclusive jurisdiction of the Presidential Electoral Tribunal (PET) and not the COMELEC. 92 Third, the burden to prove that she is not a natural-born Filipino citizen is on the respondents. 93 Otherwise stated, she has a presumption in her favor that she is a natural-born citizen of this country.

Fourth, customary international law dictates that foundlings are entitled to a nationality and are presumed to be citizens of the country where they are found. 94 Consequently, the petitioner is considered as a natural-born citizen of the Philippines. 95 Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under R.A. No. 9225 or the right to reacquire her natural-born status. 96 Moreover, the official acts of the Philippine Government enjoy the presumption of regularity, to wit: the issuance of the 18 July 2006 Order of the BI declaring her as natural-born citizen, her appointment as MTRCB Chair and the issuance of the decree of adoption of San Juan RTC. 97 She believed that all these acts reinforced her position that she is a natural-born citizen of the Philippines. 98 Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her domicile of choice in the Philippines as demonstrated by her children's resettlement and schooling in the country, purchase of a condominium unit in San Juan City and the construction of their family home in Corinthian Hills. 99 Seventh, she insisted that she could legally reestablish her domicile of choice in the Philippines even before she renounced her American citizenship as long as the three determinants for a change of domicile are complied with. 100 She reasoned out that there was no requirement that renunciation of foreign citizenship is a prerequisite for the acquisition of a new domicile of choice. 101 Eighth, she reiterated that the period appearing in the residency portion of her COC for Senator was a mistake made in good faith. 102 In a Resolution 103 promulgated on 11 December 2015, the COMELEC First Division ruled that petitioner is not a natural-born citizen, that she failed to complete the ten (10)-year residency requirement, and that she committed material misrepresentation in her COC when she declared therein that she has been a resident of the Philippines for a period of ten (10) years and eleven (11) months as of the day of the elections on 9 May 2016. The COMELEC First Division concluded that she is not qualified for the elective position of President of the Republic of the Philippines. The dispositive portion of said Resolution reads: WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the Petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for the elective position of President of the Republic of the Philippines in connection with the 9 May 2016 Synchronized Local and National Elections. Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First Division's Resolution. On 23 December 2015, the COMELEC En Banc issued a Resolution denying petitioner's motion for reconsideration. Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions for certiorari with urgent prayer for the issuance of anex parte temporary restraining order/status quo ante order and/or writ of preliminary injunction. On 28 December 2015, temporary restraining orders were issued by the Court enjoining the COMELEC and its representatives from implementing the assailed COMELEC Resolutions until further orders from the Court. The Court also ordered the consolidation of the two petitions filed by petitioner in its Resolution of 12 January 2016. Thereafter, oral arguments were held in these cases. The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL and SET ASIDE the: 1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA No. 15-001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares.

2. Resolution dated 11 December 2015, rendered through its First Division, in the consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora PoeLlamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares, respondent. 3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1 December 2015 Resolution of the Second Division. 4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11 December 2015 Resolution of the First Division. The procedure and the conclusions from which the questioned Resolutions emanated are tainted with grave abuse of discretion amounting to lack of jurisdiction. The petitioner is a QUALIFIED CANDIDATE for President in the 9 May 2016 National Elections. The issue before the COMELEC is whether or not the COC of petitioner should be denied due course or cancelled "on the exclusive ground" that she made in the certificate a false material representation. The exclusivity of the ground should hedge in the discretion of the COMELEC and restrain it from going into the issue of the qualifications of the candidate for the position, if, as in this case, such issue is yet undecided or undetermined by the proper authority. The COMELEC cannot itself, in the same cancellation case, decide the qualification or lack thereof of the candidate. We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX, C, Section 2: Section 2. The Commission on Elections shall exercise the following powers and functions: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. (3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. (4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. (5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their

platform or program of government; and accredit citizens' arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to thisConstitution, or which are supported by any foreign government shall likewise be refused registration. Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law. (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. (7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies. (8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision. (9) Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall. Not any one of the enumerated powers approximate the exactitude of the provisions of Article VI, Section 17 of the same basic law stating that: The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. or of the last paragraph of Article VII, Section 4 which provides that: The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose. The tribunals which have jurisdiction over the question of the qualifications of the President, the Vice-President, Senators and the Members of the House of Representatives was made clear by the Constitution. There is no such provision for candidates for these positions. Can the COMELEC be such judge?

The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on Elections, 104 which was affirmatively cited in the En Bancdecision in Fermin v. COMELEC 105 is our guide. The citation in Fermin reads: Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25 §1, the following: Grounds for disqualification. — Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate. The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule. Such an act is equivalent to the creation of a cause of action which is a substantive matter which the COMELEC, in the exercise of its rule-making power under Art. IX, A, §6 of the Constitution, cannot do it. It is noteworthy that the Constitution withholds from the COMELEC even the power to decide cases involving the right to vote, which essentially involves an inquiry into qualifications based on age, residence and citizenship of voters. [Art. IX, C, §2(3)] The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification is contrary to the evident intention of the law. For not only in their grounds but also in their consequences are proceedings for "disqualification" different from those for a declaration of "ineligibility." "Disqualification" proceedings, as already stated, are based on grounds specified in §12 and §68 of the Omnibus Election Code and in §40 of the Local Government Code and are for the purpose of barring an individual from becoming a candidate or from continuing as a candidate for public office. In a word, their purpose is to eliminate a candidate from the race either from the start or during its progress. "Ineligibility," on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes for holding public office and the purpose of the proceedings for declaration of ineligibility is to remove the incumbent from office. Consequently, that an individual possesses the qualifications for a public office does not imply that he is not disqualified from becoming a candidate or continuing as a candidate for a public office and vice versa. We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the qualifications prescribed in §2 of the Law does not imply that he does not suffer from any of [the] disqualifications provided in §4. Before we get derailed by the distinction as to grounds and the consequences of the respective proceedings, the importance of the opinion is in its statement that "the lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule". Justice Mendoza lectured in Romualdez-Marcos that: Three reasons may be cited to explain the absence of an authorized proceeding for determining before election the qualifications of a candidate. First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining his eligibility for the office. In contrast, whether an individual should be disqualified as a candidate for acts constituting election offenses (e.g., vote buying, over spending, commission of prohibited acts) is a prejudicial question which should be determined lest he wins because of the very

acts for which his disqualification is being sought. That is why it is provided that if the grounds for disqualification are established, a candidate will not be voted for; if he has been voted for, the votes in his favor will not be counted; and if for some reason he has been voted for and he has won, either he will not be proclaimed or his proclamation will be set aside. Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or, as in this case, his domicile, may take a long time to make, extending beyond the beginning of the term of the office. This is amply demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's residence was still pending in the COMELEC even after the elections of May 8, 1995. This is contrary to the summary character proceedings relating to certificates of candidacy. That is why the law makes the receipt of certificates of candidacy a ministerial duty of the COMELEC and its officers. The law is satisfied if candidates state in their certificates of candidacy that they are eligible for the position which they seek to fill, leaving the determination of their qualifications to be made after the election and only in the event they are elected. Only in cases involving charges of false representations made in certificates of candidacy is the COMELEC given jurisdiction. Third is the policy underlying the prohibition against pre-proclamation cases in elections for President, Vice President, Senators and members of the House of Representatives. (R.A. No. 7166, § 15) The purpose is to preserve the prerogatives of the House of Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the Constitution of the election, returns and qualifications of members of Congress of the President and Vice President, as the case may be. 106 To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin, led to the amendment through COMELEC Resolution No. 9523, on 25 September 2012 of its Rule 25. This, the 15 February 1993 version of Rule 25, which states that: Grounds for disqualification. — Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate. 107 was in the 2012 rendition, drastically changed to: Grounds. — Any candidate who, in action or protest in which he is a party, is declared by final decision of a competent court, guilty of, or found by the Commission to be suffering from any disqualification provided by law or the Constitution. A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a Certificate of Candidacy or Petition to Declare a Candidate as a Nuisance Candidate, or a combination thereof, shall be summarily dismissed. Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an authorized proceeding for determining before election the qualifications of candidate. Such that, as presently required, to disqualify a candidate there must be a declaration by a final judgment of a competent court that the candidate sought to be disqualified "is guilty of or found by the Commission to be suffering from any disqualification provided by law orthe Constitution." Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one to the other. Both do not allow, are not authorizations, are not vestment of jurisdiction, for the COMELEC to determine the qualification of a candidate. The facts of qualification must beforehand be established in a prior proceeding before an authority properly vested with

jurisdiction. The prior determination of qualification may be by statute, by executive order or by a judgment of a competent court or tribunal. If a candidate cannot be disqualified without a prior finding that he or she is suffering from a disqualification "provided by law or the Constitution," neither can the certificate of candidacy be cancelled or denied due course on grounds of false representations regarding his or her qualifications, without a prior authoritative finding that he or she is not qualified, such prior authority being the necessary measure by which the falsity of the representation can be found. The only exception that can be conceded are self-evident facts of unquestioned or unquestionable veracity and judicial confessions. Such are, anyway, bases equivalent to prior decisions against which the falsity of representation can be determined. The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that deals with, as in this case, alleged false representations regarding the candidate's citizenship and residence, forced the COMELEC to rule essentially that since foundlings 108 are not mentioned in the enumeration of citizens under the 1935 Constitution, 109 they then cannot be citizens. As the COMELEC stated in oral arguments, when petitioner admitted that she is a foundling, she said it all. This borders on bigotry. Oddly, in an effort at tolerance, the COMELEC, after saying that it cannot rule that herein petitioner possesses blood relationship with a Filipino citizen when "it is certain that such relationship is indemonstrable," proceeded to say that "she now has the burden to present evidence to prove her natural filiation with a Filipino parent." The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE. At the outset, it must be noted that presumptions regarding paternity is neither unknown nor unaccepted in Philippine Law. The Family Code of the Philippines has a whole chapter on Paternity and Filiation. 110 That said, there is more than sufficient evidence that petitioner has Filipino parents and is therefore a natural-born Filipino. Parenthetically, the burden of proof was on private respondents to show that petitioner is not a Filipino citizen. The private respondents should have shown that both of petitioner's parents were aliens. Her admission that she is a foundling did not shift the burden to her because such status did not exclude the possibility that her parents were Filipinos, especially as in this case where there is a high probability, if not certainty, that her parents are Filipinos. The factual issue is not who the parents of petitioner are, as their identities are unknown, but whether such parents are Filipinos. Under Section 4, Rule 128: Sec. 4. Relevancy, collateral matters — Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability of improbability of the fact in issue. The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA) 111 that from 1965 to 1975, the total number of foreigners born in the Philippines was 15,986 while the total number of Filipinos born in the country was 10,558,278. The statistical probability that any child born in the Philippines in that decade is natural-born Filipino was 99.83%. For her part, petitioner presented census statistics for Iloilo Province for 1960 and 1970, also from the PSA. In 1960, there were 962,532 Filipinos and 4,734 foreigners in the province; 99.62% of the population were Filipinos. In 1970, the figures were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also presented were figures for the child producing ages (15-49). In 1960, there were 230,528 female Filipinos as against 730 female foreigners or 99.68%. In the same year, there were 210,349 Filipino males and 886 male aliens, or 99.58%. In 1970, there were 270,299 Filipino females versus 1,190 female aliens, or 99.56%. That same year, there were 245,740 Filipino males as against only 1,165 male aliens or 99.53%. COMELEC did not dispute these figures.

Notably, Commissioner Arthur Lim admitted, during the oral arguments, that at the time petitioner was found in 1968, the majority of the population in Iloilo was Filipino. 112 Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was abandoned as an infant in a Roman Catholic Church in Iloilo City. She also has typical Filipino features: height, flat nasal bridge, straight black hair, almond shaped eyes and an oval face. There is a disputable presumption that things have happened according to the ordinary course of nature and the ordinary habits of life. 113 All of the foregoing evidence, that a person with typical Filipino features is abandoned in Catholic Church in a municipality where the population of the Philippines is overwhelmingly Filipinos such that there would be more than a 99% chance that a child born in the province would be a Filipino, would indicate more than ample probability if not statistical certainty, that petitioner's parents are Filipinos. That probability and the evidence on which it is based are admissible under Rule 128, Section 4 of the Revised Rules on Evidence. To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In the words of the Solicitor General: Second. It is contrary to common sense because foreigners do not come to the Philippines so they can get pregnant and leave their newborn babies behind. We do not face a situation where the probability is such that every foundling would have a 50% chance of being a Filipino and a 50% chance of being a foreigner. We need to frame our questions properly. What are the chances that the parents of anyone born in the Philippines would be foreigners? Almost zero. What are the chances that the parents of anyone born in the Philippines would be Filipinos? 99.9%. According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there were 1,766,046 children born in the Philippines to Filipino parents, as opposed to 1,301 children in the Philippines of foreign parents. Thus, for that sample period, the ratio of non-Filipino children to natural born Filipino children is 1:1357. This means that the statistical probability that any child born in the Philippines would be a natural born Filipino is 99.93%. From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the total number of Filipinos born in the Philippines is 15,558,278. For this period, the ratio of non-Filipino children is 1:661. This means that the statistical probability that any child born in the Philippines on that decade would be a natural born Filipino is 99.83%. We can invite statisticians and social anthropologists to crunch the numbers for us, but I am confident that the statistical probability that a child born in the Philippines would be a natural born Filipino will not be affected by whether or not the parents are known. If at all, the likelihood that a foundling would have a Filipino parent might even be higher than 99.9%. Filipinos abandon their children out of poverty or perhaps, shame. We do not imagine foreigners abandoning their children here in the Philippines thinking those infants would have better economic opportunities or believing that this country is a tropical paradise suitable for raising abandoned children. I certainly doubt whether a foreign couple has ever considered their child excess baggage that is best left behind. To deny full Filipino citizenship to all foundlings and render them stateless just because there may be a theoretical chance that one among the thousands of these foundlings might be the child of not just one, but two, foreigners is downright discriminatory, irrational, and unjust. It just doesn't make any sense. Given the

statistical certainty — 99.9% — that any child born in the Philippines would be a natural born citizen, a decision denying foundlings such status is effectively a denial of their birthright. There is no reason why this Honorable Court should use an improbable hypothetical to sacrifice the fundamental political rights of an entire class of human beings. Your Honor, constitutional interpretation and the use of common sense are not separate disciplines. As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude foundlings either. Because of silence and ambiguity in the enumeration with respect to foundlings, there is a need to examine the intent of the framers. In Nitafan v. Commissioner of Internal Revenue, 114 this Court held that: The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the framers. 115 As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934 Constitutional Convention show that the framers intended foundlings to be covered by the enumeration. The following exchange is recorded: Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: "The natural children of a foreign father and a Filipino mother not recognized by the father. xxx xxx xxx President: [We] would like to request a clarification from the proponent of the amendment. The gentleman refers to natural children or to any kind of illegitimate children? Sr. Rafols: To all kinds of illegitimate children. It also includes natural children of unknown parentage, natural or illegitimate children of unknown parents. Sr. Montinola: For clarification. The gentleman said "of unknown parents." Current codes consider them Filipino, that is, I refer to the Spanish Code wherein all children of unknown parentage born in Spanish territory are considered Spaniards, because the presumption is that a child of unknown parentage is the son of a Spaniard. This may be applied in the Philippines in that a child of unknown parentage born in the Philippines is deemed to be Filipino, and there is no need. . . . Sr. Rafols: There is a need, because we are relating the conditions that are [required] to be Filipino. Sr. Montinola:

But that is the interpretation of the law, therefore, there is no [more] need for amendment. Sr. Rafols: The amendment should read thus: "Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the children of unknown parentage." Sr. Briones: The amendment [should] mean children born in the Philippines of unknown parentage. Sr. Rafols: The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not unknown. President: Does the gentleman accept the amendment or not? Sr. Rafols: I do not accept the amendment because the amendment would exclude the children of a Filipina with a foreigner who does not recognize the child. Their parentage is not unknown and I think those of overseas Filipino mother and father [whom the latter] does not recognize, should also be considered as Filipinos. President: The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr. Briones. Sr. Busion: Mr. President, don't you think it would be better to leave this matter in the hands of the Legislature? Sr. Roxas: Mr. President, my humble opinion is that these cases are few and far in between, that the constitution need [not] refer to them. By international law the principle that children or people born in a country of unknown parents are citizens in this nation is recognized, and it is not necessary to include a provision on the subject exhaustively. 116 Though the Rafols amendment was not carried out, it was not because there was any objection to the notion that persons of "unknown parentage" are not citizens but only because their number was not enough to merit specific mention. Such was the account, 117 cited by petitioner, of delegate andconstitution law author Jose Aruego who said: During the debates on this provision, Delegate Rafols presented an amendment to include as Filipino citizens the illegitimate children with a foreign father of a mother who was a citizen of the Philippines, and also foundlings; but this amendment was defeated primarily because the Convention believed that the cases, being too few to warrant the inclusion of a provision in the Constitution to apply to them, should be governed by statutory legislation. Moreover, it was believed that the rules of international law were already clear to the effect that illegitimate children followed the citizenship of the mother, and that foundlings followed the nationality of

the place where they were found, thereby making unnecessary the inclusion in the Constitution of the proposed amendment. This explanation was likewise the position of the Solicitor General during the 16 February 2016 Oral Arguments: We all know that the Rafols proposal was rejected. But note that what was declined was the proposal for a textual and explicit recognition of foundlings as Filipinos. And so, the way to explain the constitutional silence is by saying that it was the view of Montinola and Roxas which prevailed that there is no more need to expressly declare foundlings as Filipinos. Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers of a constitution can constitutionalize rules based on assumptions that are imperfect or even wrong. They can even overturn existing rules. This is basic. What matters here is that Montinola and Roxas were able to convince their colleagues in the convention that there is no more need to expressly declare foundlings as Filipinos because they are already impliedly so recognized. In other words, the constitutional silence is fully explained in terms of linguistic efficiency and the avoidance of redundancy. The policy is clear: it is to recognize foundlings, as a class, as Filipinos under Art. IV, Section 1 (3) of the 1935 Constitution. This inclusive policy is carried over into the 1973 and1987 Constitution. It is appropriate to invoke a famous scholar as he was paraphrased by Chief Justice Fernando: the constitution is not silently silent, it is silently vocal. 118 The Solicitor General makes the further point that the framers "worked to create a just and humane society," that "they were reasonable patriots and that it would be unfair to impute upon them a discriminatory intent against foundlings." He exhorts that, given the grave implications of the argument that foundlings are not natural-born Filipinos, the Court must search the records of the 1935,1973 and 1987 Constitutions "for an express intention to deny foundlings the status of Filipinos. The burden is on those who wish to use the constitution to discriminate against foundlings to show that the constitution really intended to take this path to the dark side and inflict this across the board marginalization." We find no such intent or language permitting discrimination against foundlings. On the contrary, all three Constitutions guarantee the basic right to equal protection of the laws. All exhort the State to render social justice. Of special consideration are several provisions in the present charter: Article II, Section 11 which provides that the "State values the dignity of every human person and guarantees full respect for human rights," Article XIII, Section 1 which mandates Congress to "give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities . . ." and Article XV, Section 3 which requires the State to defend the "right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development." Certainly, these provisions contradict an intent to discriminate against foundlings on account of their unfortunate status. Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not provide that adoption confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino in the first place to be adopted. The most basic of such laws is Article 15 of the Civil Code which provides that "[l]aws relating to family rights, duties, status, conditions, legal capacity of persons are binding on citizens of the Philippines even though living abroad." Adoption deals with status, and a Philippine adoption court will have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v. Republic, 119 a child left by an unidentified mother was sought to be adopted by aliens. This Court said:

In this connection, it should be noted that this is a proceedings in rem, which no court may entertain unless it has jurisdiction, not only over the subject matter of the case and over the parties, but also over the res, which is the personal status of Baby Rose as well as that of petitioners herein. OurCivil Code (Art. 15) adheres to the theory that jurisdiction over the status of a natural person is determined by the latter's nationality. Pursuant to this theory, we have jurisdiction over the status of Baby Rose, she being a citizen of the Philippines, but not over the status of the petitioners, who are foreigners. 120 (Underlining supplied) Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to Govern the Inter-Country Adoption of Filipino Children and for Other Purposes" (otherwise known as the "Inter-Country Adoption Act of 1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and Policies on the Adoption of Filipino Children and For Other Purposes" (otherwise known as the Domestic Adoption Act of 1998) and this Court's A.M. No. 02-6-02-SCor the "Rule on Adoption," all expressly refer to "Filipino children" and include foundlings as among Filipino children who may be adopted. It has been argued that the process to determine that the child is a foundling leading to the issuance of a foundling certificate under these laws and the issuance of said certificate are acts to acquire or perfect Philippine citizenship which make the foundling a naturalized Filipino at best. This is erroneous. Under Article IV, Section 2 "Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship." In the first place, "having to perform an act" means that the act must be personally done by the citizen. In this instance, the determination of foundling status is done not by the child but by the authorities. 121 Secondly, the object of the process is the determination of the whereabouts of the parents, not the citizenship of the child. Lastly, the process is certainly not analogous to naturalization proceedings to acquire Philippine citizenship, or the election of such citizenship by one born of an alien father and a Filipino mother under the 1935 Constitution, which is an act to perfect it. In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as evidenced by a Foundling Certificate issued in her favor. 122 The Decree of Adoption issued on 13 May 1974, which approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan Kelley Poe, expressly refers to Emiliano and his wife, Rosario Militar, as her "foundling parents," hence effectively affirming petitioner's status as a foundling. 123 Foundlings are likewise citizens under international law. Under the 1987 Constitution, an international law can become part of the sphere of domestic law either by transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. 124 On the other hand, generally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. Generally accepted principles of international law include international custom as evidence of a general practice accepted as law, and general principles of law recognized by civilized nations. 125 International customary rules are accepted as binding as a result from the combination of two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. 126"General principles of law recognized by civilized nations" are principles "established by a process of reasoning" or judicial logic, based on principles which are "basic to legal systems generally," 127 such as "general principles of equity, i.e., the general principles of fairness and justice," and the "general principle against discrimination" which is embodied in the "Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the

Elimination of All Forms of Racial Discrimination, the Convention Against Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation." 128 These are the same core principles which underlie the Philippine Constitution itself, as embodied in the due process and equal protection clauses of the Bill of Rights. 129 Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the generally accepted principles of international law and binding on the State. 130 Article 15 thereof states: 1. Everyone has the right to a nationality. 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC). Article 7 of the UNCRC imposes the following obligations on our country: Article 7 1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents. 2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless. In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 24 thereof provide for the right ofevery child "to acquire a nationality:" Article 24 1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right, to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. 2. Every child shall be registered immediately after birth and shall have a name. 3. Every child has the right to acquire a nationality. The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant nationality from birth and ensure that no child is stateless. This grant of nationality must be at the time of birth, and it cannot be accomplished by the application of our present naturalization laws,Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which require the applicant to be at least eighteen (18) years old. The principles found in two conventions, while yet unratified by the Philippines, are generally accepted principles of international law. The first is Article 14 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws under which a foundling is presumed to have the "nationality of the country of birth," to wit: Article 14 A child whose parents are both unknown shall have the nationality of the country of birth. If the child's parentage is established, its nationality shall be determined by the rules applicable in cases where the parentage is known.

A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in which it was found. (Underlining supplied) The second is the principle that a foundling is presumed born of citizens of the country where he is found, contained in Article 2 of the 1961 United Nations Convention on the Reduction of Statelessness: Article 2 A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within the territory of parents possessing the nationality of that State. That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the Reduction of Statelessness does not mean that their principles are not binding. While the Philippines is not a party to the 1930 Hague Convention, it is a signatory to the Universal Declaration on Human Rights, Article 15 (1) of which 131 effectively affirms Article 14 of the 1930 Hague Convention. Article 2 of the 1961 "United Nations Convention on the Reduction of Statelessness" merely "gives effect" to Article 15 (1) of the UDHR. 132 In Razon v. Tagitis, 133 this Court noted that the Philippines had not signed or ratified the "International Convention for the Protection of All Persons from Enforced Disappearance." Yet, we ruled that the proscription against enforced disappearances in the said convention was nonetheless binding as a "generally accepted principle of international law." Razon v. Tagitisis likewise notable for declaring the ban as a generally accepted principle of international law although the convention had been ratified by only sixteen states and had not even come into force and which needed the ratification of a minimum of twenty states. Additionally, as petitioner points out, the Court was content with the practice of international and regional state organs, regional state practice in Latin America, and State Practice in the United States. Another case where the number of ratifying countries was not determinative is Mijares v. Rañada, 134 where only four countries had "either ratified or acceded to" 135 the 1966 "Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters" when the case was decided in 2005. The Court also pointed out that that nine member countries of the European Common Market had acceded to the Judgments Convention. The Court also cited U.S. laws and jurisprudence on recognition of foreign judgments. In all, only the practices of fourteen countries were considered and yet, there was pronouncement that recognition of foreign judgments was widespread practice. Our approach in Razon and Mijares effectively takes into account the fact that "generally accepted principles of international law" are based not only on international custom, but also on "general principles of law recognized by civilized nations," as the phrase is understood in Article 38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the policy against discrimination, which are fundamental principles underlying the Bill of Rights and which are "basic to legal systems generally," 136 support the notion that the right against enforced disappearances and the recognition of foreign judgments, were correctly considered as "generally accepted principles of international law" under the incorporation clause. Petitioner's evidence 137 shows that at least sixty countries in Asia, North and South America, and Europe have passed legislation recognizing foundlings as its citizen. Forty-two (42) of those countries follow the jus sanguinis regime. Of the sixty, only thirty-three (33) are parties to the 1961 Convention on Statelessness; twenty-six (26) are not signatories to the Convention. Also, the Chief Justice, at the 2 February 2016 Oral Arguments pointed out that in 166 out of 189 countries surveyed (or 87.83%), foundlings are recognized as citizens. These circumstances, including the practice ofjus sanguinis countries, show that it is a generally accepted principle of international law to presume foundlings as having been born of nationals of the country in which the foundling is found.

Current legislation reveals the adherence of the Philippines to this generally accepted principle of international law. In particular, R.A. No. 8552,R.A. No. 8042 and this Court's Rules on Adoption, expressly refer to "Filipino children." In all of them, foundlings are among the Filipino children who could be adopted. Likewise, it has been pointed that the DFA issues passports to foundlings. Passports are by law, issued only to citizens. This shows that even the executive department, acting through the DFA, considers foundlings as Philippine citizens. Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on Statelessness is rational and reasonable and consistent with the jus sanguinis regime in our Constitution. The presumption of natural-born citizenship of foundlings stems from the presumption that their parents are nationals of the Philippines. As the empirical data provided by the PSA show, that presumption is at more than 99% and is a virtual certainty. In sum, all of the international law conventions and instruments on the matter of nationality of foundlings were designed to address the plight of a defenseless class which suffers from a misfortune not of their own making. We cannot be restrictive as to their application if we are a country which calls itself civilized and a member of the community of nations. The Solicitor General's warning in his opening statement is relevant: . . . the total effect of those documents is to signify to this Honorable Court that those treaties and conventions were drafted because the world community is concerned that the situation of foundlings renders them legally invisible. It would be tragically ironic if this Honorable Court ended up using the international instruments which seek to protect and uplift foundlings a tool to deny them political status or to accord them second-class citizenship. 138 The COMELEC also ruled 139 that petitioner's repatriation in July 2006 under the provisions of R.A. No. 9225 did not result in the reacquisition of natural-born citizenship. The COMELEC reasoned that since the applicant must perform an act, what is reacquired is not "natural-born" citizenship but only plain "Philippine citizenship." The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of repatriation statutes in general and of R.A. No. 9225 in particular. In the seminal case of Bengson III v. HRET, 140 repatriation was explained as follows: Moreover, repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural-born Filipino. R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They include Sobejana-Condon v. COMELEC 141 where we described it as an "abbreviated repatriation process that restores one's Filipino citizenship . . . ." Also included is Parreño v. Commission on Audit, 142which cited Tabasa v. Court of Appeals, 143 where we said that "[t]he repatriation of the former Filipino will allow him to recover his natural-born citizenship. Parreño v. Commission on Audit 141 is categorical that "if petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he will . . . recover his natural-born citizenship." The COMELEC construed the phrase "from birth" in the definition of natural citizens as implying "that natural-born citizenship must begin at birth and remain uninterrupted and continuous from birth." R.A. No. 9225 was obviously passed in line with Congress' sole prerogative to determine how citizenship may be lost or reacquired. Congress saw it fit to decree that natural-born citizenship may be reacquired even if it had been once lost. It is not for the COMELEC to disagree with the Congress' determination.

More importantly, COMELEC's position that natural-born status must be continuous was already rejected in Bengson III v. HRET 145 where the phrase "from birth" was clarified to mean at the time of birth: "A person who at the time of his birth, is a citizen of a particular country, is a natural-born citizen thereof." Neither is "repatriation" an act to "acquire or perfect" one's citizenship. In Bengson III v. HRET, this Court pointed out that there are only two types of citizens under the 1987 Constitution: natural-born citizen and naturalized, and that there is no third category for repatriated citizens: It is apparent from the enumeration of who are citizens under the present Constitution that there are only two classes of citizens: (1) those who are naturalborn and (2) those who are naturalized in accordance with law. A citizen who is not a naturalized Filipino, i.e., did not have to undergo the process of naturalization to obtain Philippine citizenship, necessarily is a natural-born Filipino. Noteworthy is the absence in said enumeration of a separate category for persons who, after losing Philippine citizenship, subsequently reacquire it. The reason therefor is clear: as to such persons, they would either be natural-born or naturalized depending on the reasons for the loss of their citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As respondent Cruz was not required by law to go through naturalization proceedings in order to reacquire his citizenship, he is perforce a natural-born Filipino. As such, he possessed all the necessary qualifications to be elected as member of the House of Representatives. 146 The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while we may always revisit a doctrine, a new rule reversing standing doctrine cannot be retroactively applied. In Morales v. Court of Appeals and Jejomar Erwin S. Binay, Jr., 147 where we decreed reversed the condonation doctrine, we cautioned that it "should be prospective in application for the reason that judicial decisions applying or interpreting the laws ofthe Constitution, until reversed, shall form part of the legal system of the Philippines." This Court also said that "while the future may ultimately uncover a doctrine's error, it should be, as a general rule, recognized as good law prior to its abandonment. Consequently, the people's reliance thereupon should be respected." 148 Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a falsehood when she put in the spaces for "born to" in her application for repatriation under R.A. No. 9225 the names of her adoptive parents, and this misled the BI to presume that she was a naturalborn Filipino. It has been contended that the data required were the names of her biological parents which are precisely unknown. This position disregards one important fact — petitioner was legally adopted. One of the effects of adoption is "to sever all legal ties between the biological parents and the adoptee, except when the biological parent is the spouse of the adoptee." 149 Under R.A. No. 8552, petitioner was also entitled to an amended birth certificate "attesting to the fact that the adoptee is the child of the adopter(s)" and which certificate "shall not bear any notation that it is an amended issue." 150 That law also requires that "[a]ll records, books, and papers relating to the adoption cases in the files of the court, the Department [of Social Welfare and Development], or any other agency or institution participating in the adoption proceedings shall be kept strictly confidential." 151 The law therefore allows petitioner to state that her adoptive parents were her birth parents as that was what would be stated in her birth certificate anyway. And given the policy of strict confidentiality of adoption records, petitioner was not obligated to disclose that she was an adoptee. Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the same case for cancellation of COC, it resorted to opinionatedness which is,

moreover, erroneous. The whole process undertaken by COMELEC is wrapped in grave abuse of discretion. On Residence The tainted process was repeated in disposing of the issue of whether or not petitioner committed false material representation when she stated in her COC that she has before and until 9 May 2016 been a resident of the Philippines for ten (10) years and eleven (11) months. Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months on the day before the 2016 elections, is true. The Constitution requires presidential candidates to have ten (10) years' residence in the Philippines before the day of the elections. Since the forthcoming elections will be held on 9 May 2016, petitioner must have been a resident of the Philippines prior to 9 May 2016 for ten (10) years. In answer to the requested information of "Period of Residence in the Philippines up to the day before May 09, 2016," she put in "10 years 11 months" which according to her pleadings in these cases corresponds to a beginning date of 25 May 2005 when she returned for good from the U.S. When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the Philippines. There are three requisites to acquire a new domicile: 1. Residence or bodily presence in a new locality; 2. an intention to remain there; and 3. an intention to abandon the old domicile. 152 To successfully effect a change of domicile, one must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts which correspond with the purpose. In other words, there must basically beanimus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. 153 Petitioner presented voluminous evidence showing that she and her family abandoned their U.S. domicile and relocated to the Philippines for good. These evidence include petitioner's former U.S. passport showing her arrival on 24 May 2005 and her return to the Philippines every time she travelled abroad; e-mail correspondences starting in March 2005 to September 2006 with a freight company to arrange for the shipment of their household items weighing about 28,000 pounds to the Philippines; e-mail with the Philippine Bureau of Animal Industry inquiring how to ship their dog to the Philippines; school records of her children showing enrollment in Philippine schools starting June 2005 and for succeeding years; tax identification card for petitioner issued on July 2005; titles for condominium and parking slot issued in February 2006 and their corresponding tax declarations issued in April 2006; receipts dated 23 February 2005 from the Salvation Army in the U.S. acknowledging donation of items from petitioner's family; March 2006 e-mail to the U.S. Postal Service confirming request for change of address; final statement from the First American Title Insurance Company showing sale of their U.S. home on 27 April 2006; 12 July 2011 filled-up questionnaire submitted to the U.S. Embassy where petitioner indicated that she had been a Philippine resident since May 2005; affidavit from Jesusa Sonora Poe (attesting to the return of petitioner on 24 May 2005 and that she and her family stayed with affiant until the condominium was purchased); and Affidavit from petitioner's husband (confirming that the spouses jointly decided to relocate to the Philippines in 2005 and that he stayed behind in the U.S. only to finish some work and to sell the family home). The foregoing evidence were undisputed and the facts were even listed by the COMELEC, particularly in its Resolution in the Tatad, Contreras and Valdez cases. However, the COMELEC refused to consider that petitioner's domicile had been timely changed as of 24 May 2005. At the oral arguments, COMELEC Commissioner Arthur Lim

conceded the presence of the first two requisites, namely, physical presence and animus manendi, but maintained there was no animus non-revertendi. 154 The COMELEC disregarded the import of all the evidence presented by petitioner on the basis of the position that the earliest date that petitioner could have started residence in the Philippines was in July 2006 when her application under R.A. No. 9225 was approved by the BI. In this regard, COMELEC relied on Coquilla v. COMELEC, 155 Japzon v. COMELEC 156 and Caballero v. COMELEC. 157 During the oral arguments, the private respondents also added Reyes v. COMELEC. 158 Respondents contend that these cases decree that the stay of an alien former Filipino cannot be counted until he/she obtains a permanent resident visa or reacquires Philippine citizenship, a visa-free entry under a balikbayanstamp being insufficient. Since petitioner was still an American (without any resident visa) until her reacquisition of citizenship under R.A. No. 9225, her stay from 24 May 2005 to 7 July 2006 cannot be counted. But as the petitioner pointed out, the facts in these four cases are very different from her situation. In Coquilla v. COMELEC, 159 the only evidence presented was a community tax certificate secured by the candidate and his declaration that he would be running in the elections. Japzon v. COMELEC160 did not involve a candidate who wanted to count residence prior to his reacquisition of Philippine citizenship. With the Court decreeing that residence is distinct from citizenship, the issue there was whether the candidate's acts after reacquisition sufficed to establish residence. In Caballero v. COMELEC,161 the candidate admitted that his place of work was abroad and that he only visited during his frequent vacations. In Reyes v. COMELEC, 162 the candidate was found to be an American citizen who had not even reacquired Philippine citizenship under R.A. No. 9225 or had renounced her U.S. citizenship. She was disqualified on the citizenship issue. On residence, the only proof she offered was a seven-month stint as provincial officer. The COMELEC, quoted with approval by this Court, said that "such fact alone is not sufficient to prove her one-year residency." It is obvious that because of the sparse evidence on residence in the four cases cited by the respondents, the Court had no choice but to hold that residence could be counted only from acquisition of a permanent resident visa or from reacquisition of Philippine citizenship. In contrast, the evidence of petitioner is overwhelming and taken together leads to no other conclusion that she decided to permanently abandon her U.S. residence (selling the house, taking the children from U.S. schools, getting quotes from the freight company, notifying the U.S. Post Office of the abandonment of their address in the U.S., donating excess items to the Salvation Army, her husband resigning from U.S. employment right after selling the U.S. house) and permanently relocate to the Philippines and actually re-established her residence here on 24 May 2005 (securing T.I.N., enrolling her children in Philippine schools, buying property here, constructing a residence here, returning to the Philippines after all trips abroad, her husband getting employed here). Indeed, coupled with her eventual application to reacquire Philippine citizenship and her family's actual continuous stay in the Philippines over the years, it is clear that when petitioner returned on 24 May 2005 it was for good. In this connection, the COMELEC also took it against petitioner that she had entered the Philippines visa-free as a balikbayan. A closer look at R.A. No. 6768 as amended, otherwise known as the "An Act Instituting a Balikbayan Program," shows that there is no overriding intent to treat balikbayans as temporary visitors who must leave after one year. Included in the law is a former Filipino who has been naturalized abroad and "comes or returns to the Philippines." 163 The law institutes a balikbayan program "providing the opportunity to avail of the necessary training to enable the balikbayan to become economically self-reliant members of society upon their return to the country" 164 in line with the government's "reintegration program." 165 Obviously,balikbayans are not ordinary transients.

Given the law's express policy to facilitate the return of a balikbayan and help him reintegrate into society, it would be an unduly harsh conclusion to say in absolute terms that the balikbayan must leave after one year. That visa-free period is obviously granted him to allow him to re-establish his life and reintegrate himself into the community before he attends to the necessary formal and legal requirements of repatriation. And that is exactly what petitioner did — she reestablished life here by enrolling her children and buying property while awaiting the return of her husband and then applying for repatriation shortly thereafter. No case similar to petitioner's, where the former Filipino's evidence of change in domicile is extensive and overwhelming, has as yet been decided by the Court. Petitioner's evidence of residence is unprecedented. There is no judicial precedent that comes close to the facts of residence of petitioner. There is no indication in Coquilla v. COMELEC, 166 and the other cases cited by the respondents that the Court intended to have its rulings there apply to a situation where the facts are different. Surely, the issue of residence has been decided particularly on the facts-of-the case basis. To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the COMELEC ruled that petitioner's claim of residence of ten (10) years and eleven (11) months by 9 May 2016 in her 2015 COC was false because she put six (6) years and six (6) months as "period of residence before May 13, 2013" in her 2012 COC for Senator. Thus, according to the COMELEC, she started being a Philippine resident only in November 2006. In doing so, the COMELEC automatically assumed as true the statement in the 2012 COC and the 2015 COC as false. As explained by petitioner in her verified pleadings, she misunderstood the date required in the 2013 COC as the period of residence as of the day she submitted that COC in 2012. She said that she reckoned residency from April-May 2006 which was the period when the U.S. house was sold and her husband returned to the Philippines. In that regard, she was advised by her lawyers in 2015 that residence could be counted from 25 May 2005. Petitioner's explanation that she misunderstood the query in 2012 (period of residence before 13 May 2013) as inquiring about residence as of the time she submitted the COC, is bolstered by the change which the COMELEC itself introduced in the 2015 COC which is now "period of residence in the Philippines up to the day before May 09, 2016." The COMELEC would not have revised the query if it did not acknowledge that the first version was vague. That petitioner could have reckoned residence from a date earlier than the sale of her U.S. house and the return of her husband is plausible given the evidence that she had returned a year before. Such evidence, to repeat, would include her passport and the school records of her children. It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and conclusive admission against petitioner. It could be given in evidence against her, yes, but it was by no means conclusive. There is precedent after all where a candidate's mistake as to period of residence made in a COC was overcome by evidence. In Romualdez-Marcos v. COMELEC, 167 the candidate mistakenly put seven (7) months as her period of residence where the required period was a minimum of one year. We said that "[i]t is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining whether or not an individual has satisfied the constitution's residency qualification requirement." The COMELEC ought to have looked at the evidence presented and see if petitioner was telling the truth that she was in the Philippines from 24 May 2005. Had the COMELEC done its duty, it would have seen that the 2012 COC and the 2015 COC both correctly stated the pertinent period of residency. The COMELEC, by its own admission, disregarded the evidence that petitioner actually and physically returned here on 24 May 2005 not because it was false, but only because COMELEC took the position that domicile could be established only from petitioner's repatriation under R.A.

No. 9225 in July 2006. However, it does not take away the fact that in reality, petitioner had returned from the U.S. and was here to stay permanently, on 24 May 2005. When she claimed to have been a resident for ten (10) years and eleven (11) months, she could do so in good faith. For another, it could not be said that petitioner was attempting to hide anything. As already stated, a petition for quo warranto had been filed against her with the SET as early as August 2015. The event from which the COMELEC pegged the commencement of residence, petitioner's repatriation in July 2006 under R.A. No. 9225, was an established fact to repeat, for purposes of her senatorial candidacy. Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC, petitioner recounted that this was first brought up in the media on 2 June 2015 by Rep. Tobias Tiangco of the United Nationalist Alliance. Petitioner appears to have answered the issue immediately, also in the press. Respondents have not disputed petitioner's evidence on this point. From that time therefore when Rep. Tiangco discussed it in the media, the stated period of residence in the 2012 COC and the circumstances that surrounded the statement were already matters of public record and were not hidden. Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo warranto. Her Verified Answer, which was filed on 1 September 2015, admitted that she made a mistake in the 2012 COC when she put in six (6) years and six (6) months as she misunderstood the question and could have truthfully indicated a longer period. Her answer in the SET case was a matter of public record. Therefore, when petitioner accomplished her COC for President on 15 October 2015, she could not be said to have been attempting to hide her erroneous statement in her 2012 COC for Senatorwhich was expressly mentioned in her Verified Answer. The facts now, if not stretched to distortion, do not show or even hint at an intention to hide the 2012 statement and have it covered by the 2015 representation. Petitioner, moreover, has on her side this Court's pronouncement that: Concededly, a candidate's disqualification to run for public office does not necessarily constitute material misrepresentation which is the sole ground for denying due course to, and for the cancellation of, a COC. Further, as already discussed, the candidate's misrepresentation in his COC must not only refer to a material fact (eligibility and qualifications for elective office), but should evince a deliberate intent to mislead, misinform or hide a fact which would otherwise render a candidate ineligible. It must be made with an intention to deceive the electorate as to one's qualifications to run for public office. 168 In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of evidenced dates all of which can evince animus manendi to the Philippines and animus non revertendi to the United States of America. The veracity of the events of coming and staying home was as much as dismissed as inconsequential, the focus having been fixed at the petitioner's "sworn declaration in her COC for Senator" which the COMELEC said "amounts to a declaration and therefore an admission that her residence in the Philippines only commence sometime in November 2006"; such that "based on this declaration, [petitioner] fails to meet the residency requirement for President." This conclusion, as already shown, ignores the standing jurisprudence that it is the fact of residence, not the statement of the person that determines residence for purposes of compliance with the constitutional requirement of residency for election as President. It ignores the easily researched matter that cases on questions of residency have been decided favorably for the candidate on the basis of facts of residence far less in number, weight and substance than that presented by petitioner. 169 It ignores, above all else, what we consider as a primary reason why petitioner cannot be bound by her declaration in her COC for Senator which declaration was not even considered by the SET as an issue against her eligibility

for Senator. When petitioner made the declaration in her COC for Senator that she has been a resident for a period of six (6) years and six (6) months counted up to the 13 May 2013 Elections, she naturally had as reference the residency requirements for election as Senator which was satisfied by her declared years of residence. It was uncontested during the oral arguments before us that at the time the declaration for Senator was made, petitioner did not have as yet any intention to vie for the Presidency in 2016 and that the general public was never made aware by petitioner, by word or action, that she would run for President in 2016. Presidential candidacy has a length-of-residence different from that of a senatorial candidacy. There are facts of residence other than that which was mentioned in the COC for Senator. Such other facts of residence have never been proven to be false, and these, to repeat include: [Petitioner] returned to the Philippines on 24 May 2005. [petitioner's] husband however stayed in the USA to finish pending projects and arrange the sale of their family home. Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner] enrolled Brian in Beacon School in Taguig City in 2005 and Hanna in Assumption College in Makati City in 2005. Anika was enrolled in Learning Connection in San Juan in 2007, when she was already old enough to go to school. In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson Place Condominium in San Juan. [Petitioner] and her family lived in Unit 7F until the construction of their family home in Corinthian Hills was completed. Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer who handled [petitioner's] adoption in 1974 failed to secure from the Office of the Civil Registrar of Iloilo a new Certificate of Live Birth indicating [petitioner's] new name and stating that her parents are "Ronald Allan K. Poe" and "Jesusa L. Sonora." In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of some of the family's remaining household belongings. [Petitioner] returned to the Philippines on 11 March 2006. In late March 2006, [petitioner's] husband informed the United States Postal Service of the family's abandonment of their address in the US. The family home in the US was sole n on 27 April 2006. In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the Philippines on 4 May 2006 and began working for a Philippine company in July 2006. In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they eventually built their family home. 170 In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall under the exclusive ground of false representation, to consider no other date than that mentioned by petitioner in her COC for Senator. All put together, in the matter of the citizenship and residence of petitioner for her candidacy as President of the Republic, the questioned Resolutions of the COMELEC in Division and En Banc are, one and all, deadly diseased with grave abuse of discretion from root to fruits. WHEREFORE, the petition is GRANTED. The Resolutions, to wit:

1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora PoeLlamanzares, respondent, stating that: [T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016 National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe-Llamanzares is hereby GRANTED. 2. dated 11 December 2015, rendered through the COMELEC First Division, in the consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora PoeLlamanzares, respondent; stating that: WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for the elective position of President of the Republic of the Philippines in connection with the 9 May 2016 Synchronized Local and National Elections. 3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015 Resolution of the Second Division stating that: WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to DENY the Verified Motion for Reconsideration of SENATOR MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES. The Resolution dated 11 December 2015 of the Commission First Division is AFFIRMED. 4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015 Resolution of the First Division. are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POELLAMANZARES is DECLARED QUALIFIED to be a candidate for President in the National and Local Elections of 9 May 2016. SO ORDERED. ||| (Poe-Llamanzares v. Commission on Elections, G.R. Nos. 221697 & 221698-700, [March 8, 2016]) [G.R. No. 202202. March 19, 2013.] SILVERIO R. TAGOLINO, petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND LUCY MARIE TORRES-GOMEZ,respondents.

DECISION

PERLAS-BERNABE, J p: Assailed in this Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court is the March 22, 2012 Decision 1 of the House of Representatives Electoral Tribunal (HRET) in HRET Case No. 10-031 (QW) which declared the validity of private respondent Lucy Marie Torres-Gomez's substitution as the Liberal Party's replacement candidate for the position of Leyte Representative (Fourth Legislative District) in lieu of Richard Gomez.

The Facts On November 30, 2009, Richard Gomez (Richard) filed his certificate of candidacy 2 (CoC) with the Commission on Elections (COMELEC), seeking congressional office as Representative for the Fourth Legislative District of Leyte under the ticket of the Liberal Party. Subsequently, on December 6, 2009, one of the opposing candidates, Buenaventura Juntilla (Juntilla), filed a Verified Petition, 3 alleging that Richard, who was actually a resident of Colgate Street, East Greenhills, San Juan City, Metro Manila, misrepresented in his CoC that he resided in 910 Carlota Hills, Can-adieng, Ormoc City. In this regard, Juntilla asserted that Richard failed to meet the one (1) year residency requirement under Section 6, Article VI 4 of the 1987 Philippine Constitution (Constitution) and thus should be declared disqualified/ineligible to run for the said office. In addition, Juntilla prayed that Richard's CoC be denied due course and/or cancelled. 5 On February 17, 2010, the COMELEC First Division rendered a Resolution 6 granting Juntilla's petition without any qualification. The dispositive portion of which reads: aHESCT WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the Petition to Disqualify Candidate for Lack of Qualification filed by BUENAVENTURA O. JUNTILLA against RICHARD I. GOMEZ. Accordingly, RICHARD I. GOMEZ is DISQUALIFIED as a candidate for the Office of Congressman, Fourth District of Leyte, for lack of residency requirement. SO ORDERED. Aggrieved, Richard moved for reconsideration but the same was denied by the COMELEC En Banc through a Resolution dated May 4, 2010. 7 Thereafter, in a Manifestation of even date, Richard accepted the said resolution with finality "in order to enable his substitute to facilitate the filing of the necessary documents for substitution." 8 On May 5, 2010, Lucy Marie Torres-Gomez (private respondent) filed her CoC 9 together with a Certificate of Nomination and Acceptance 10 from the Liberal Party endorsing her as the party's official substitute candidate vice her husband, Richard, for the same congressional post. In response to various letter-requests submitted to the COMELEC's Law Department (Law Department), the COMELEC En Banc, in the exercise of its administrative functions, issued Resolution No. 8890 11 on May 8, 2010, approving, among others, the recommendation of the said department to allow the substitution of private respondent. The recommendation reads: STUDY AND OBSERVATION On the same date, this Department received an Opposition from Mr. Buenaventura O. Juntilla, thru his counsel, opposing the candidacy of Ms. Lucy Marie Torres Gomez, as a substitute candidate for Mr. Richard I. Gomez. The crux of the opposition stemmed from the issue that there should be no substitution because there is no candidate to substitute for. It must be stressed that the resolution of the First Division, this Commission, in SPA No. 09-059 speaks for disqualification of candidate Richard I. Gomez and not of cancellation of his Certificate of Candidacy: 'Wherefore, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the Petition to Disqualify Candidate for Lack of Qualification filed . . . against RICHARD I. GOMEZ. Accordingly, RICHARD I. GOMEZ is DISQUALIFIED as a candidate for the Office of Congressman, Fourth District of Leyte, for lack of residency requirement.' The said resolution was affirmed by the Commission En Banc on May 04, 2010.

The disqualification of a candidate does not automatically cancel one's certificate of candidacy, especially when it is nominated by a political party. In effect, the political party is still allowed to substitute the candidate whose candidacy was declared disqualified. After all, the right to substitute is a privilege given to a political party to exercise and not dependent totally to a candidate. Nonetheless, in case of doubt, the same must always be resolved to the qualification of a candidate to run in the public office. The substitution complied with the requirements provided under Section 12 in relation to Section 13 of Comelec Resolution No. 8678 dated October 6, 2009. xxx xxx xxx In view of the foregoing, the Law Department RECOMMENDS the following: xxx xxx xxx 2. TO ALLOW CANDIDATE LUCY MARIE TORRES GOMEZ AS A SUBSTITUTE CANDIDATE FOR RICHARD GOMEZ; (Emphasis and underscoring supplied) xxx xxx xxx The following day, or on May 9, 2010, Juntilla filed an Extremely Urgent Motion for Reconsideration 12 (May 9, 2010 Motion) of the above-mentioned COMELEC En Banc resolution. Pending resolution of Juntilla's May 9, 2010 Motion, the national and local elections were conducted as scheduled on May 10, 2010. During the elections, Richard, whose name remained on the ballots, garnered 101,250 votes while his opponents, namely, Eufrocino Codilla, Jr. and herein petitioner Silverio Tagolino, obtained 76,549 and 493 votes, respectively. 13 In view of the aforementioned substitution, Richard's votes were credited in favor of private respondent and as a result, she was proclaimed the duly-elected Representative of the Fourth District of Leyte. On May 11, 2010, Juntilla filed an Extremely Urgent Motion to resolve the pending May 9, 2010 Motion relative to Resolution No. 8890. 14 The said motion, however, remained unacted. AIDTSE On May 24, 2010, petitioner filed a Petition 15 for quo warranto before the HRET in order to oust private respondent from her congressional seat, claiming that: (1) she failed to comply with the one (1) year residency requirement under Section 6, Article VI of the Constitution considering that the transfer of her voter registration from San Rafael, Bulacan 16 to the Fourth District of Leyte was only applied for on July 23, 2009; (2) she did not validly substitute Richard as his CoC was void ab initio; and (3) private respondent's CoC was void due to her non-compliance with the prescribed notarial requirements i.e., she failed to present valid and competent proof of her identity before the notarizing officer. 17 In her Verified Answer, 18 private respondent denied petitioner's allegations and claimed that she validly substituted her husband in the electoral process. She also averred that she was personally known to the notary public who notarized her CoC, one Atty. Edgardo Cordeno, and thus, she was not required to have presented any competent proof of identity during the notarization of the said document. Lastly, she asserted that despite her marriage to Richard and exercise of profession in Metro Manila, she continued to maintain her residency in Ormoc City which was the place where she was born and raised. During the preliminary conference, and as shown in the Preliminary Conference Order dated September 2, 2010, the parties agreed on the following issues for resolution: 1. Whether or not the instant petition for quo warranto is meritorious;

2. Whether or not the substitution of respondent is valid; 3. Whether or not a petition for quo warranto can be used as a substitute for failure to file the necessary petition for disqualification with the COMELEC; 4. Whether or not respondent's COC was duly subscribed; and 5. Whether or not respondent is ineligible for the position of Representative of the Fourth District of Leyte for lack of residency requirement. 19 Ruling of the HRET After due proceedings, the HRET issued the assailed March 22, 2012 Decision 20 which dismissed the quo warranto petition and declared that private respondent was a qualified candidate for the position of Leyte Representative (Fourth Legislative District). It observed that the resolution denying Richard's candidacy i.e., the COMELEC First Division's February 17, 2010 Resolution, spoke of disqualification and not of CoC cancellation. Hence, it held that the substitution of private respondent in lieu of Richard was legal and valid. 21 Also, it upheld the validity of private respondent's CoC due to petitioner's failure to controvert her claim that she was personally known to the notary public who notarized her CoC. 22 Finally, the HRET ruled that while it had been admitted that private respondent resides in Colgate Street, San Juan City and lived in San Rafael, Bulacan, the fact was she continued to retain her domicile in Ormoc City given that her absence therefrom was only temporary. Hence, the instant petition. Issues Before the Court The crux of the present controversy is whether or not the HRET gravely abused its discretion in finding that Richard was validly substituted by private respondent as candidate for Leyte Representative (Fourth Legislative District) in view of the former's failure to meet the one (1) year residency requirement provided under Section 6, Article VI of the Constitution. It is petitioner's submission that the HRET gravely abused its discretion when it upheld the validity of private respondent's substitution despite contrary jurisprudence holding that substitution is impermissible where the substituted candidate's CoC was denied due course to and/or cancelled, as in the case of Richard. On the other hand, respondents maintain that Richard's CoC was not denied due course to and/or cancelled by the COMELEC as he was only "disqualified" and therefore, was properly substituted by private respondent. Ruling of the Court The petition is meritorious. A. Distinction for disqualification deny due certificate of candidacy

between and course

a a

petition to/cancel

petition to a

The Omnibus Election Code 23 (OEC) provides for certain remedies to assail a candidate's bid for public office. Among these which obtain particular significance to this case are: (1) a petition for disqualification under Section 68; and (2) a petition to deny due course to and/or cancel a certificate of candidacy under Section 78. The distinctions between the two are well-perceived. Primarily, a disqualification case under Section 68 of the OEC is hinged on either: (a) a candidate's possession of a permanent resident status in a foreign country; 24 or (b) his or her commission of certain acts of disqualification. Anent the latter, the prohibited acts under Section 68 refer to election offenses under the OEC, and not to violations of other penal laws. 25 In particular, these are: (1) giving money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (2) committing acts of terrorism to enhance one's candidacy;

(3) spending in one's election campaign an amount in excess of that allowed by the OEC; (4) soliciting, receiving or making any contribution prohibited under Sections 89, 95, 96, 97 and 104 of the OEC; and (5) violating Sections 80, 26 83, 27 85, 28 86 29 and 261, paragraphs d, 30 e, 31 k, 32 v, 33 and cc, sub-paragraph 6 34 of the OEC. Accordingly, the same provision (Section 68) states that any candidate who, in an action or protest in which he or she is a party, is declared by final decision of a competent court guilty of, or found by the COMELEC to have committed any of the foregoing acts shall be disqualified from continuing as a candidate for public office, or disallowed from holding the same, if he or she had already been elected. 35 It must be stressed that one who is disqualified under Section 68 is still technically considered to have been a candidate, albeit proscribed to continue as such only because of supervening infractions which do not, however, deny his or her statutory eligibility. In other words, while the candidate's compliance with the eligibility requirements as prescribed by law, such as age, residency, and citizenship, is not in question, he or she is, however, ordered to discontinue such candidacy as a form of penal sanction brought about by the commission of the above-mentioned election offenses. On the other hand, a denial of due course to and/or cancellation of a CoC proceeding under Section 78 of the OEC 36 is premised on a person's misrepresentation of any of the material qualifications required for the elective office aspired for. It is not enough that a person lacks the relevant qualification; he or she must have also made a false representation of the same in the CoC. 37 The nature of a Section 78 petition was discussed in the case of Fermin v. COMELEC, 38 where the Court illumined: AcSIDE Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate made a material representation that is false, which may relate to the qualifications required of the public office he/she is running for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of the winning candidate. (Emphasis supplied) Corollary thereto, it must be noted that the deliberateness of the misrepresentation, much less one's intent to defraud, is of bare significance in a Section 78 petition as it is enough that the person's declaration of a material qualification in the CoC be false. In this relation, jurisprudence holds that an express finding that the person committed any deliberate misrepresentation is of little consequence in the determination of whether one's CoC should be deemed cancelled or not. 39 What remains material is that the petition essentially seeks to deny due course to and/or cancel the CoC on the basis of one's ineligibility and that the same be granted without any qualification. 40 Pertinently, while a disqualified candidate under Section 68 is still considered to have been a candidate for all intents and purposes, on the other hand, a person whose CoC had been denied due course to and/or cancelled under Section 78 is deemed to have not been a candidate at all. The reason being is that a cancelled CoC is considered void ab initio and thus, cannot give rise to a valid candidacy and necessarily, to valid votes. 41 In Talaga v. COMELEC 42(Talaga), the Court ruled that: . . . While a person who is disqualified under Section 68 is merely prohibited to continue as a candidate, a person whose certificate is cancelled or denied due

course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC. The foregoing variance gains utmost importance to the present case considering its implications on candidate substitution. B. Valid CoC qua non for candidate substitution

as

a

condition

sine

Section 77 of the OEC provides that if an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, a person belonging to and certified by the same political party may file a CoC to replace the candidate who died, withdrew or was disqualified. It states that: Sec. 77. Candidates in case of death, disqualification or withdrawal of another. — If after the last day for the filing of certificates of candidacy, anofficial candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. (Emphasis supplied) Evidently, Section 77 requires that there be an "official candidate" before candidate substitution proceeds. Thus, whether the ground for substitution is death, withdrawal or disqualification of a candidate, the said section unequivocally states that only an official candidate of a registered or accredited party may be substituted. 43 As defined under Section 79 (a) of the OEC, the term "candidate" refers to any person aspiring for or seeking an elective public office who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties. Clearly, the law requires that one must have validly filed a CoC in order to be considered a candidate. The requirement of having a CoC obtains even greater importance if one considers its nature. In particular, a CoC formalizes not only a person's public declaration to run for office but evidences as well his or her statutory eligibility to be elected for the said post. In Sinaca v. Mula, 44 the Court has illumined: A certificate of candidacy is in the nature of a formal manifestation to the whole world of the candidate's political creed or lack of political creed. It is a statement of a person seeking to run for a public office certifying that he announces his candidacy for the office mentioned and that he is eligible for the office, the name of the political party to which he belongs, if he belongs to any, and his postoffice address for all election purposes being as well stated. (Emphasis and underscoring supplied.) In this regard, the CoC is the document which formally accords upon a person the status of a candidate. In other words, absent a valid CoC one is not considered a candidate under legal contemplation. As held in Talaga: 45 . . . a person's declaration of his intention to run for public office and his affirmation that he possesses the eligibility for the position he seeks to assume, followed by the timely filing of such declaration, constitute a valid CoC that render the person making the declaration a valid or official candidate.(Emphasis supplied) Considering that Section 77 requires that there be a candidate in order for substitution to take place, as well as the precept that a person without a valid CoC is not considered as a candidate at all, it necessarily follows that if a person's CoC had been denied due course to and/or cancelled, he or she cannot be validly substituted in the electoral process. The existence of a valid CoC is therefore a condition sine qua non for a disqualified candidate to be validly substituted. 46

C. Divergent disqualification and course to and/or cases vis-à-vis candidate substitution

effects denial cancellation

of of

of due COC

Proceeding from the foregoing discourse, it is evident that there lies a clear-cut distinction between a disqualification case under Section 68 and denial of due course to and/or cancellation of COC case under Section 78 vis-à-vis their respective effects on candidate substitution under Section 77. As explained in the case of Miranda v. Abaya 47 (Miranda), a candidate who is disqualified under Section 68 can be validly substituted pursuant to Section 77 because he remains a candidate until disqualified; but a person whose CoC has been denied due course to and/or cancelled under Section 78 cannot be substituted because he is not considered a candidate. 48 Stated differently, since there would be no candidate to speak of under a denial of due course to and/or cancellation of a CoC case, then there would be no candidate to be substituted; the same does not obtain, however, in a disqualification case since there remains to be a candidate to be substituted, although his or her candidacy is discontinued. On this note, it is equally revelatory that Section 77 expressly enumerates the instances where substitution is permissible, that is when an official candidate of a registered or accredited political party "dies, withdraws or is disqualified for any cause." Noticeably, material misrepresentation cases are not included in the said section and therefore, cannot be a valid basis to proceed with candidate substitution. D. Application to the case at bar In this case, it is undisputed that Richard was disqualified to run in the May 10, 2010 elections due to his failure to comply with the one year residency requirement. 49 The confusion, however, stemmed from the use of the word "disqualified" in the February 17, 2010 Resolution of the COMELEC First Division, which was adopted by the COMELEC En Banc in granting the substitution of private respondent, and even further perpetuated by the HRET in denying the quo warranto petition. In short, a finding that Richard was merely disqualified — and not that his CoC was denied due course to and/or cancelled — would mean that he could have been validly substituted by private respondent, thereby legitimizing her candidacy. Yet the fact that the COMELEC First Division's February 17, 2010 Resolution did not explicitly decree the denial of due course to and/or cancellation of Richard's CoC should not have obviated the COMELEC En Banc from declaring the invalidity of private respondent's substitution. It should be stressed that the clear and unequivocal basis for Richard's "disqualification" is his failure to comply with the residency requirement under Section 6, Article VI of theConstitution which is a ground for the denial of due course to and/or cancellation a CoC under Section 78 of the OEC, not for disqualification. 50 As earlier mentioned, the material misrepresentation contemplated under a Section 78 petition refers to statements affecting one's qualifications for elective office such as age, residence and citizenship or non-possession of natural-born Filipino status. 51 There is therefore no legal basis to support a finding of disqualification within the ambit of election laws. Accordingly, given Richard's non-compliance with the one year residency requirement, it cannot be mistaken that the COMELEC First Division's unqualified grant of Juntilla's "Verified Petition to Disqualify Candidate for Lack of Qualification" 52 — which prayed that the COMELEC declare Richard "DISQUALIFIED and INELIGIBLE from seeking the office of Member of the House of Representatives" and ". . . that [his] Certificate of Candidacy . . . be DENIED DUE COURSE and/or CANCELLED" 53 — carried with it the denial of due course to and/or cancellation of Richard's CoC pursuant to Section 78. Case law dictates that if a petition prays for the denial of due course to and/or cancellation of CoC and the same is granted by the COMELEC without any qualification, the cancellation of the

candidate's CoC is in order. This is precisely the crux of the Miranda ruling wherein the Court, in upholding the COMELEC En Banc's nullification of the substitution in that case, decreed that the COMELEC Division's unqualified grant of the petition necessarily included the denial of due course to and/or cancellation of the candidate's CoC, notwithstanding the use of the term "disqualified" in the COMELEC Division's resolution, as the foregoing was prayed for in the said petition: The question to settle next is whether or not aside from Joel "Pempe" Miranda being disqualified by the COMELEC in its May 5, 1998 resolution, his certificate of candidacy had likewise been denied due course and cancelled. The Court rules that it was. Private respondent's petition in SPA No. 98-019 specifically prayed for the following: WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for the position of Mayor for the City of Santiagobe not given due course and/or cancelled. Other reliefs just and equitable in the premises are likewise prayed for. CacTSI In resolving the petition filed by private respondent specifying a very particular relief, the COMELEC ruled favorably in the following manner: WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Petition. Respondent JOSE "Pempe" MIRANDA is hereby DISQUALIFIED from running for the position of mayor of Santiago City, Isabela, in the May 11, 1998 national and local elections. SO ORDERED. From a plain reading of the dispositive portion of the COMELEC resolution of May 5, 1998 in SPA No. 98-019, it is sufficiently clear that the prayer specifically and particularly sought in the petition was GRANTED, there being no qualification on the matter whatsoever. The disqualification was simply ruled over and above the granting of the specific prayer for denial of due course and cancellation of the certificate of candidacy. xxx xxx xxx There is no dispute that the complaint or petition filed by private respondent in SPA No. 98-019 is one to deny due course and to cancel the certificate of candidacy of Jose "Pempe" Miranda. There is likewise no question that the said petition was GRANTED without any qualification whatsoever. It is rather clear, therefore, that whether or not the COMELEC granted any further relief in SPA No. 98-019 by disqualifying the candidate,the fact remains that the said petition was granted and that the certificate of candidacy of Jose "Pempe" Miranda was denied due course and cancelled. (Emphasis and underscoring supplied) The same rule was later discussed in the case of Talaga, viz.: 3. Granting without any of petition in SPA No. manifested COMELEC's intention declare Ramon disqualified and cancel his CoC

qualification 09-029(DC) to to

xxx xxx xxx In Miranda v. Abaya, the specific relief that the petition prayed for was that the CoC "be not given due course and/or cancelled". The COMELEC categorically granted "the petition" and then pronounced — in apparent contradiction — that Joel Pempe Miranda was "disqualified." The Court held that the COMELEC, by granting the petition without any qualification, disqualified Joel Pempe Miranda and at the same time cancelled Jose Pempe Miranda's CoC. xxx xxx xxx The crucial point of Miranda v. Abaya was that the COMELEC actually granted the particular relief of cancelling or denying due course to the CoC prayed for in the petition by not subjecting that relief to any qualification. (Emphasis and underscoring supplied) In view of the foregoing rulings, the COMELEC En Banc direly misconstrued the COMELEC First Division's February 17, 2010 Resolution when it adopted the Law Department's finding that Richard was only "disqualified" and that his CoC was not denied due course to and/or cancelled, paving the way for the approval of private respondent's substitution. It overlooked the fact that the COMELEC First Division's ruling encompassed the cancellation of Richard's CoC and in consequence, disallowed the substitution of private respondent. It was therefore grave and serious error on the part of the COMELEC En Banc to have approved private respondent's substitution. Consequently, in perpetuating the COMELEC En Banc's error as above-discussed, the HRET committed a grave abuse of discretion, warranting the grant of the instant petition. Fundamental is the rule that grave abuse of discretion arises when a lower court or tribunal patently violates the Constitution, the law or existing jurisprudence. 54 While it is well-recognized that the HRET has been empowered by the Constitution to be the "sole judge" of all contests relating to the election, returns, and qualifications of the members of the House, the Court maintains jurisdiction over it to check "whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction" on the part of the latter. 55 In other words, when the HRET utterly disregards the law and settled precedents on the matter before it, it commits a grave abuse of discretion. Records clearly show that: (1) Richard was held ineligible as a congressional candidate for the Fourth District of Leyte due to his failure to comply with the one year residency requirement; (2) Juntilla's petition prayed for the denial of due course to and/or cancellation of his CoC; and (3) the COMELEC First Division granted the foregoing petition without any qualification. By these undisputed and essential facts alone, the HRET should not have adopted the COMELEC En Banc's erroneous finding that the COMELEC First Division's February 17, 2010 Resolution "speaks [only] of "disqualification and not of cancellation of [Richard's] CoC" 56 and thereby, sanctioned the substitution of private respondent. Lest it be misunderstood, the HRET is not bound by previous COMELEC pronouncements relative to the qualifications of the Members of the House. Being the sole judge 57 of all contests relating to the election, returns, and qualifications of its respective members, the HRET cannot be tied down by COMELEC resolutions, else its constitutional mandate 58 be circumvented and rendered nugatory. Instructive on this point is the Court's disquisition in Fernandez v. HRET, 59 to wit: Private respondent concludes from the above that petitioner had no legal basis to claim that the HRET, when reference to the qualification/s of Members of the House of Representatives is concerned, is "co-equal", to the COMELEC, such that the HRET cannot disregard any ruling of COMELEC respecting the matter of eligibility and qualification of a member of the House of Representatives. The truth is the other way around, because the COMELEC is subservient to the HRET when the

dispute or contest at issue refers to the eligibility and/or qualification of a Member of the House of Representatives. A petition for quo warranto is within the exclusive jurisdiction of the HRET as sole judge, and cannot be considered forum shoppingeven if another body may have passed upon in administrative or quasijudicial proceedings the issue of the Member's qualification while the Member was still a candidate. There is forum-shopping only where two cases involve the same parties and the same cause of action. The two cases here are distinct and dissimilar in their nature and character. (Emphasis and underscoring supplied) Notably, the phrase "election, returns, and qualifications" should be interpreted in its totality as referring to all matters affecting the validity of the contestee's title. More particularly, the term "qualifications" refers to matters that could be raised in a quo warranto proceeding against the proclaimed winner, such as his disloyalty or ineligibility, or the inadequacy of his certificate of candidacy. 60 As used in Section 74 of the OEC, the word "eligible" means having the right to run for elective public office, that is, having all the qualifications and none of the ineligibilities to run for the public office. 61 In this relation, private respondent's own qualification to run for public office — which was inextricably linked to her husband's own qualifications due to her substitution — was the proper subject of quo warranto proceedings falling within the exclusive jurisdiction of the HRET and independent from any previous proceedings before the COMELEC, lest the jurisdictional divide between the two be blurred. cDAISC Nonetheless, it must be pointed out that the HRET's independence is not without limitation. As earlier mentioned, the Court retains certiorari jurisdiction over the HRET if only to check whether or not it has gravely abused its discretion. In this regard, the Court does not endeavor to denigrate nor undermine the HRET's independence; rather, it merely fulfills its duty to ensure that the Constitution and the laws are upheld through the exercise of its power of judicial review. In fine, the Court observes that the HRET wantonly disregarded the law by deliberately adopting the COMELEC En Banc's flawed findings regarding private respondent's eligibility to run for public office which essentially stemmed from her substitution. In this light, it cannot be gainsaid that the HRET gravely abused its discretion. Owing to the lack of proper substitution in this case, private respondent was therefore not a bona fide candidate for the position of Representative for the Fourth District of Leyte when she ran for office, which means that she could not have been elected. Considering this pronouncement, there exists no cogent reason to further dwell on the other issues respecting private respondent's own qualification to office. WHEREFORE, the petition is GRANTED. Accordingly, the March 22, 2012 Decision rendered by the House of Representatives Electoral Tribunal in HRET Case No. 10-031 (QW) is hereby REVERSED and SET ASIDE. SO ORDERED. ||| (Tagolino v. House of Representatives Electoral Tribunal, G.R. No. 202202, [March 19, 2013], 706 PHIL 534-578) [G.R. No. 135083. May 26, 1999.] ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents. Balase, Tamase, Alampay Law Office for petitioner. Siguion Reyna, Montecillo & Ongsiako for private respondent.

SYNOPSIS Petitioner Mercado and private respondent Manzano were candidates for vice mayor of the City of Makati in the May 11, 1998 elections. The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a citizen of the Philippines but of the United States. The Second Division of the COMELEC granted the petition of Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the ground that he is a dual citizen and under Sec. 40 of the Local Government Code, persons with dual citizenship are disqualified from running for any elective position. Private respondent filed a motion for reconsideration. The motion remained pending until after the election. The board of canvassers tabulated the votes but suspended the proclamation of the winner. Petitioner sought to intervene in the case for disqualification. COMELEC en banc reversed the decision and declared private respondent qualified to run for the position. Pursuant to the ruling of the COMELEC en banc, the board of canvassers proclaimed private respondent as vice mayor. This petition sought the reversal of the resolution of the COMELEC en banc and to declare the private respondent disqualified to hold the office of the vice mayor of Makati. cdasia On the issue of whether the petitioner has personality to bring this suit considering that he was not the original party in the disqualification case, the Supreme Court ruled that under Sec. 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final judgment rendered. As regards the issue of citizenship, the Court ruled that by filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship. SYLLABUS 1. POLITICAL LAW; ELECTORAL REFORMS LAW OF 1987 (R.A. No. 6646); INTERVENTION, ALLOWED IN PROCEEDINGS FOR DISQUALIFICATION EVEN AFTER ELECTION IF THERE HAS BEEN NO FINAL JUDGMENT RENDERED; CASE AT BAR. — Private respondent argues that petitioner has neither legal interest in the matter in litigation nor an interest to protect because he is "a defeated candidate for the vice-mayoralty post of Makati City [who] cannot be proclaimed as the ViceMayor of Makati City even if the private respondent be ultimately disqualified by final and executory judgment." The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the proceedings before the COMELEC, there had already been a proclamation of the results of the election for the vice mayoralty contest for Makati City, on the basis of which petitioner came out only second to private respondent. The fact, however, is that there had been no proclamation at that time. Certainly, petitioner had, and still has, an interest in ousting private respondent from the race at the time he sought to intervene. The rule in Labo vs. COMELEC, reiterated in several cases, only applies to cases in which the election of the respondent is contested, and the question is whether one who placed second to the disqualified candidate may be declared the winner. In the present case, at the time petitioner filed a "Motion for leave to File Intervention" on May 20, 1998, there had been no proclamation of the winner, and petitioner's purpose was precisely to have private respondent disqualified "from running for [an] elective local position" under Section 40(d) of R.A. No. 7160. If Ernesto Mamaril (who originally instituted the disqualification proceedings), a registered voter of Makati City, was competent to bring the action, so was petitioner since the latter was a rival candidate for vice mayor of Makati City. Nor is petitioner's interest in the matter in litigation any less because he filed a motion for intervention only on May 20, 1998, after private respondent had been shown to have garnered the highest number of votes among the candidates for vice mayor. That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private respondent is clear from Section 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which

provides: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final judgment rendered. 2. ID.; CITIZENSHIP; DUAL CITIZENSHIP; DISTINGUISHED FROM DUAL ALLEGIANCE. — Dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution,it is possible for the following classes of citizens of the Philippines to posses dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers' country such children are citizens of that country; (3) Those who marry aliens if by the laws of the latter's country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are possible given the constitutional provisions on citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual's volition. With respect to dual allegiance, Article IV, Section 5 of the Constitution provides: "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law." 3. ID.; ID.; ID.; ID.; RATIONALE. — In including Section 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase "dual citizenship" in R.A. No. 7160, Section 40(d) and in R.A. No. 7854, Section 20 must be understood as referring to "dual allegiance." Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is something completely beyond our control." By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. 4. ID.; ID.; FILING OF THE CERTIFICATE OF CANDIDACY SUFFICED TO RENOUNCE AMERICAN CITIZENSHIP; CASE AT BAR. — By filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship. The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any disqualification he might have as a dual citizen. Thus, inFrivaldo vs. COMELEC it was held: It is not disputed that on January 20, 1983 Frivaldo became an American.

Would the retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from running for any elective local position?" We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his American citizenship — long before May 8, 1995. At best, Frivaldo was stateless in the interim — when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship." On this point, we quote from the assailed Resolution dated December 19, 1995: "By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government." These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court, absent any showing of capriciousness or arbitrariness or abuse. Until the filing of his certificate of candidacy on March 21, 1998, private respondent had dual citizenship. The acts attributed to him can be considered simply as the assertion of his American nationality before the termination of his American citizenship. What this Court said in Aznar vs. COMELEC applies mutatis mutandis to private respondent in the case at bar: . . . Considering the fact that admittedly Osmeña was both a Filipino and an American, the mere fact that he has a Certificate stating he is an American does not mean that he is not still a Filipino. . . [T]he Certification that he is an American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed, there is no express renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of said citizenship. When We consider that the renunciation needed to lose Philippine citizenship must be "express," it stands to reason that there can be no such loss of Philippine citizenship when there is no renunciation, either "express" or "implied." To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support theConstitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen. On the other hand, private respondent's oath of allegiance to the Philippines, when considered with the fact that he has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship.acCITS

DECISION

MENDOZA, J p: Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for vice mayor of the City of Makati in the May 11, 1998 elections. The other one was Gabriel V. Daza III. The results of the election were as follows: Eduardo B. Manzano 103,853 Ernesto S. Mercado 100,894 Gabriel V. Daza III 54,275 1

The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a citizen of the Philippines but of the United States. In its resolution, dated May 7, 1998, 2 the Second Division of the COMELEC granted the petition of Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the ground that he is a dual citizen and, under §40(d) of the Local Government Code, persons with dual citizenship are disqualified from running for any elective position. The COMELEC's Second Division said: What is presented before the Commission is a petition for disqualification of Eduardo Barrios Manzano as candidate for the office of Vice-Mayor of Makati City in the May 11, 1998 elections. The petition is based on the ground that the respondent is an American citizen based on the record of the Bureau of Immigration and misrepresented himself as a natural-born Filipino citizen. In his answer to the petition filed on April 27, 1998, the respondent admitted that he is registered as a foreigner with the Bureau of Immigration under Alien Certificate of Registration No. B-31632 and alleged that he is a Filipino citizen because he was born in 1955 of a Filipino father and a Filipino mother. He was born in the United States, San Francisco, California, on September 14, 1955, and is considered an American citizen under US Laws. But notwithstanding his registration as an American citizen, he did not lose his Filipino citizenship. Judging from the foregoing facts, it would appear that respondent Manzano is both a Filipino and a US citizen. In other words, he holds dual citizenship. The question presented is whether under our laws, he is disqualified from the position for which he filed his certificate of candidacy. Is he eligible for the office he seeks to be elected? Under Section 40(d) of the Local Government Code, those holding dual citizenship are disqualified from running for any elective local position. WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati City. On May 8, 1998, private respondent filed a motion for reconsideration. 3 The motion remained pending even until after the election held on May 11, 1998. Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the board of canvassers tabulated the votes cast for vice mayor of Makati City but suspended the proclamation of the winner. On May 19, 1998, petitioner sought to intervene in the case for disqualification. 4 Petitioner's motion was opposed by private respondent. The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its resolution. Voting 4 to 1, with one commissioner abstaining, the COMELEC en banc reversed the ruling of its Second Division and declared private respondent qualified to run for vice mayor of the City of Makati in the May 11, 1998 elections. 5 The pertinent portions of the resolution of the COMELEC en banc read: As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco, California, U.S.A. He acquired US citizenship by operation of the United States Constitution and laws under the principle of jus soli.

He was also a natural born Filipino citizen by operation of the 1935 Philippine Constitution, as his father and mother were Filipinos at the time of his birth. At the age of six (6), his parents brought him to the Philippines using an American passport as travel document. His parents also registered him as an alien with the Philippine Bureau of Immigration. He was issued an alien certificate of registration. This, however, did not result in the loss of his Philippine citizenship, as he did not renounce Philippine citizenship and did not take an oath of allegiance to the United States. It is an undisputed fact that when respondent attained the age of majority, he registered himself as a voter, and voted in the elections of 1992, 1995 and 1998, which effectively renounced his citizenship under American law. Under Philippine law, he no longer had U.S. citizenship. At the time of the May 11, 1998 elections, the resolution of the Second Division, adopted on May 7, 1998, was not yet final. Respondent Manzano obtained the highest number of votes among the candidates for vice-mayor of Makati City, garnering one hundred three thousand eight hundred fifty-three (103,853) votes over his closest rival, Ernesto S. Mercado, who obtained one hundred thousand eight hundred ninety-four (100,894) votes, or a margin of two thousand nine hundred fifty-nine (2,959) votes. Gabriel Daza III obtained third place with fifty four thousand two hundred seventy-five (54,275) votes. In applying election laws, it would be far better to err in favor of the popular choice than be embroiled in complex legal issues involving private international law which may well be settled before the highest court (Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727). WHEREFORE, the Commission en banc hereby REVERSES the resolution of the Second Division, adopted on May 7, 1998, ordering the cancellation of the respondent's certificate of candidacy. We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a candidate for the position of vice-mayor of Makati City in the May 11, 1998, elections. ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon proper notice to the parties, to reconvene and proclaim the respondent Eduardo Luis Barrios Manzano as the winning candidate for vice-mayor of Makati City. Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of August 31, 1998, proclaimed private respondent as vice mayor of the City of Makati. cdasia This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en banc and to declare private respondent disqualified to hold the office of vice mayor of Makati City. Petitioner contends that — [T]he COMELEC en banc ERRED in holding that: A. Under Philippine law, Manzano was no longer a U.S. citizen when he: 1. He renounced his U.S. citizenship when he attained the age of majority when he was already 37 years old; and, 2. He renounced his U.S. citizenship when he (merely) registered himself as a voter and voted in the elections of 1992, 1995 and 1998. B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the City of Makati;

C. At the time of the May 11, 1998 elections, the resolution of the Second Division adopted on 7 May 1998 was not yet final so that, effectively, petitioner may not be declared the winner even assuming that Manzano is disqualified to run for and hold the elective office of Vice-Mayor of the City of Makati. We first consider the threshold procedural issue raised by private respondent Manzano — whether petitioner Mercado has personality to bring this suit considering that he was not an original party in the case for disqualification filed by Ernesto Mamaril nor was petitioner's motion for leave to intervene granted. I. PETITIONER'S RIGHT TO BRING THIS SUIT Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the COMELEC in support of his claim that petitioner has no right to intervene and, therefore, cannot bring this suit to set aside the ruling denying his motion for intervention: SECTION 1. When proper and when may be permitted to intervene. — Any person allowed to initiate an action or proceeding may, before or during the trial of an action or proceeding, be permitted by the Commission, in its discretion to intervene in such action or proceeding, if he has legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or when he is so situated as to be adversely affected by such action or proceeding. xxx xxx xxx SECTION 3. Discretion of Commission. — In allowing or disallowing a motion for intervention, the Commission or the Division, in the exercise of its discretion, shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not the intervenor's rights may be fully protected in a separate action or proceeding. Private respondent argues that petitioner has neither legal interest in the matter in litigation nor an interest to protect because he is "a defeated candidate for the vice-mayoralty post of Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City even if the private respondent be ultimately disqualified by final and executory judgment." The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the proceedings before the COMELEC, there had already been a proclamation of the results of the election for the vice mayoralty contest for Makati City, on the basis of which petitioner came out only second to private respondent. The fact, however, is that there had been no proclamation at that time. Certainly, petitioner had, and still has, an interest in ousting private respondent from the race at the time he sought to intervene. The rule in Labo v. COMELEC, 6 reiterated in several cases, 7 only applies to cases in which the election of the respondent is contested, and the question is whether one who placed second to the disqualified candidate may be declared the winner. In the present case, at the time petitioner filed a "Motion for Leave to File Intervention" on May 20, 1998, there had been no proclamation of the winner, and petitioner's purpose was precisely to have private respondent disqualified "from running for [an] elective local position" under §40(d) of R.A. No. 7160. If Ernesto Mamaril (who originally instituted the disqualification proceedings), a registered voter of Makati City, was competent to bring the action, so was petitioner since the latter was a rival candidate for vice mayor of Makati City. Nor is petitioner's interest in the matter in litigation any less because he filed a motion for intervention only on May 20, 1998, after private respondent had been shown to have garnered the highest number of votes among the candidates for vice mayor. That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private respondent is

clear from §6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which provides: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final judgment rendered. The failure of the COMELEC en banc to resolve petitioner's motion for intervention was tantamount to a denial of the motion, justifying petitioner in filing the instant petition for certiorari. As the COMELEC en banc instead decided the merits of the case, the present petition properly deals not only with the denial of petitioner's motion for intervention but also with the substantive issues respecting private respondent's alleged disqualification on the ground of dual citizenship. This brings us to the next question, namely, whether private respondent Manzano possesses dual citizenship and, if so, whether he is disqualified from being a candidate for vice mayor of Makati City. II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION The disqualification of private respondent Manzano is being sought under §40 of the Local Government Code of 1991 (R.A. No. 7160), which declares as "disqualified from running for any elective local position: . . . (d) Those with dual citizenship." This provision is incorporated in the Charter of the City of Makati. 8 Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him in this case, contends that through §40(d) ofthe Local Government Code, Congress has "command[ed] in explicit terms the ineligibility of persons possessing dual allegiance to hold local elective office." To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. 9 For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution,it is possible for the following classes of citizens of the Philippines to possess dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers' country such children are citizens of that country; (3) Those who marry aliens if by the laws of the latter's country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are clearly possible given the constitutional provisions on citizenship.

Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual's volition. With respect to dual allegiance, Article IV, §5 of the Constitution provides: "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law." This provision was included in the 1987 Constitution at the instance of Commissioner Blas F. Ople who explained its necessity as follows: 10 . . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I have circulated a memorandum to the Bernas Committee according to which a dual allegiance — and I reiterate a dual allegiance — is larger and more threatening than that of mere double citizenship which is seldom intentional and, perhaps, never insidious. That is often a function of the accident of mixed marriages or of birth on foreign soil. And so, I do not question double citizenship at all. What we would like the Committee to consider is to take constitutional cognizance of the problem of dual allegiance. For example, we all know what happens in the triennial elections of the Federation of Filipino-Chinese Chambers of Commerce which consists of about 600 chapters all over the country. There is a Peking ticket, as well as a Taipei ticket. Not widely known is the fact that the Filipino-Chinese community is represented in the Legislative Yuan of the Republic of China in Taiwan. And until recently, the sponsor might recall, in Mainland China in the People's Republic of China, they have the Associated Legislative Council for overseas Chinese wherein all of Southeast Asia including some European and Latin countries were represented, which was dissolved after several years because of diplomatic friction. At that time, the Filipino-Chinese were also represented in that Overseas Council. When I speak of double allegiance, therefore, I speak of this unsettled kind of allegiance of Filipinos, of citizens who are already Filipinos but who, by their acts, may be said to be bound by a second allegiance, either to Peking or Taiwan. I also took close note of the concern expressed by some Commissioners yesterday, including Commissioner Villacorta, who were concerned about the lack of guarantees of thorough assimilation, and especially Commissioner Concepcion who has always been worried about minority claims on our natural resources. Dual allegiance can actually siphon scarce national capital to Taiwan, Singapore, China or Malaysia, and this is already happening. Some of the great commercial places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese — it is of common knowledge in Manila. It can mean a tragic capital outflow when we have to endure a capital famine which also means economic stagnation, worsening unemployment and social unrest. And so, this is exactly what we ask — that the Committee kindly consider incorporating a new section, probably Section 5, in the article on Citizenship which will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND SHALL BE DEALT WITH ACCORDING TO LAW. In another session of the Commission, Ople spoke on the problem of these citizens with dual allegiance, thus: 11 . . . A significant number of Commissioners expressed their concern about dual citizenship in the sense that it implies a double allegiance under a double sovereignty which some of us who spoke then in a freewheeling debate thought would be repugnant to the sovereignty which pervades theConstitution and to citizenship itself which implies a uniqueness and which elsewhere in the Constitution is defined in

terms of rights and obligations exclusive to that citizenship including, of course, the obligation to rise to the defense of the State when it is threatened, and back of this, Commissioner Bernas, is, of course, the concern for national security. In the course of those debates, I think some noted the fact that as a result of the wave of naturalizations since the decision to establish diplomatic relations with the People's Republic of China was made in 1975, a good number of these naturalized Filipinos still routinely go to Taipei every October 10; and it is asserted that some of them do renew their oath of allegiance to a foreign government maybe just to enter into the spirit of the occasion when the anniversary of the Sun Yat-Sen Republic is commemorated. And so, I have detected a genuine and deep concern about double citizenship, with its attendant risk of double allegiance which is repugnant to our sovereignty and national security. I appreciate what the Committee said that this could be left to the determination of a future legislature. But considering the scale of the problem, the real impact on the security of this country, arising from, let us say, potentially great numbers of double citizens professing double allegiance, will the Committee entertain a proposed amendment at the proper time that will prohibit, in effect, or regulate double citizenship? Clearly, in including §5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase "dual citizenship" in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring to "dual allegiance." Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is something completely beyond our control." 12 By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment as the following discussion on §40(d) between Senators Enrile and Pimentel clearly shows: 13 SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: "Any person with dual citizenship" is disqualified to run for any elective local position. Under the present Constitution, Mr. President, someone whose mother is a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the Republic. There is no requirement that such a natural born citizen, upon reaching the age of majority, must elect or give up Philippine citizenship. On the assumption that this person would carry two passports, one belonging to the country of his or her father and one belonging to the Republic of the Philippines, may such a situation disqualify the person to run for a local government position? SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would want to run for public office, he has to repudiate one of his citizenships.

SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the country of the father claims that person, nevertheless, as a citizen? No one can renounce. There are such countries in the world. SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an election for him of his desire to be considered as a Filipino citizen. SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an election. Under the Constitution, a person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim the citizenship. SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentleman's example, if he does not renounce his other citizenship, then he is opening himself to question. So, if he is really interested to run, the first thing he should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I have only one citizenship." SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will always have one citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic. SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he also acknowledges other citizenships, then he will probably fall under this disqualification. This is similar to the requirement that an applicant for naturalization must renounce "all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty" 14 of which at the time he is a subject or citizen before he can be issued a certificate of naturalization as a citizen of the Philippines.In Parado v. Republic, 15 it was held: [W]hen a person applying for citizenship by naturalization takes an oath that he renounces his loyalty to any other country or government and solemnly declares that he owes his allegiance to the Republic of the Philippines, the condition imposed by law is satisfied and complied with. The determination whether such renunciation is valid or fully complies with the provisions of our Naturalization Law lies within the province and is an exclusive prerogative of our courts. The latter should apply the law duly enacted by the legislative department of the Republic. No foreign law may or should interfere with its operation and application. If the requirement of the Chinese Law of Nationality were to be read into our Naturalization Law, we would be applying not what our legislative department has deemed it wise to require, but what a foreign government has thought or intended to exact. That, of course, is absurd. It must be resisted by all means and at all cost. It would be a brazen encroachment upon the sovereign will and power of the people of this Republic. III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP The record shows that private respondent was born in San Francisco, California on September 4, 1955, of Filipino parents. Since the Philippines adheres to the principle of jus sanguinis, while the United States follows the doctrine of jus soli, the parties agree that, at birth at least, he was a national both of the Philippines and of the United States. However, the COMELEC en banc held that, by participating in Philippine elections in 1992, 1995, and 1998, private respondent "effectively renounced his U.S. citizenship under American law," so that now he is solely a Philippine national. Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not sufficient evidence of renunciation and that, in any event, as the alleged renunciation was

made when private respondent was already 37 years old, it was ineffective as it should have been made when he reached the age of majority. In holding that by voting in Philippine elections private respondent renounced his American citizenship, the COMELEC must have in mind §349 of the Immigration and Nationality Act of the United States, which provided that "A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: . . . (e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory." To be sure this provision was declared unconstitutional by the U.S. Supreme Court in Afroyim v. Rusk 16 as beyond the power given to the U.S. Congress to regulate foreign relations. However, by filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship. Private respondent's certificate of candidacy, filed on March 27, 1998, contained the following statements made under oath: 6. I AM A FILIPINO CITIZEN (STATE IF "NATURAL-BORN" OR "NATURALIZED") NATURAL-BORN xxx xxx xxx 10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR. 11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY. 12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT AND DEFEND THE CONSTITUTION 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 OF THE REPUBLIC OF THE PHILIPPINES; AND THAT I IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION OR PURPOSE OF EVASION. I HEREBY CERTIFY THAT THE FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY OWN PERSONAL KNOWLEDGE. The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any disqualification he might have as a dual citizen. Thus, in Frivaldo v. COMELEC it was held: 17 It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from running for any elective local position?" We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his American citizenship-long before May 8, 1995. At best, Frivaldo was stateless in the interim-when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship." On this point, we quote from the assailed Resolution dated December 19, 1995: "By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government."

These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court, absent any showing of capriciousness or arbitrariness or abuse. There is, therefore, no merit in petitioner's contention that the oath of allegiance contained in private respondent's certificate of candidacy is insufficient to constitute renunciation of his American citizenship. Equally without merit is petitioner's contention that, to be effective, such renunciation should have been made upon private respondent reaching the age of majority since no law requires the election of Philippine citizenship to be made upon majority age. Finally, much is made of the fact that private respondent admitted that he is registered as an American citizen in the Bureau of Immigration and Deportation and that he holds an American passport which he used in his last travel to the United States on April 22, 1997. There is no merit in this. Until the filing of his certificate of candidacy on March 21, 1998, he had dual citizenship. The acts attributed to him can be considered simply as the assertion of his American nationality before the termination of his American citizenship. What this Court said in Aznar vs. COMELEC 18 applies mutatis mutandis to private respondent in the case at bar: . . . Considering the fact that admittedly Osmeña was both a Filipino and an American, the mere fact that he has a Certificate stating he is an American does not mean that he is not still a Filipino. . . . [T]he Certification that he is an American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed, there is no express renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of said citizenship. When We consider that the renunciation needed to lose Philippine citizenship must be "express," it stands to reason that there can be no such loss of Philippine citizenship when there is no renunciation, either "express" or "implied."

To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen. On the other hand, private respondent's oath of allegiance to the Philippines, when considered with the fact that he has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship. His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate proceedings. In Yu v. DefensorSantiago, 19 we sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in commercial documents executed abroad that he was a Portuguese national. A similar sanction can be taken against any one who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act constituting renunciation of his Philippine citizenship. cdasia WHEREFORE, the petition for certiorari is DISMISSED for lack of merit. SO ORDERED. ||| (Mercado v. Manzano, G.R. No. 135083, [May 26, 1999], 367 PHIL 132-153)

[G.R. No. 179848. November 27, 2008.] NESTOR A. JACOT, petitioner, vs. ROGEN T. DAL and COMMISSION ON ELECTIONS, respondents.

DECISION

CHICO-NAZARIO, J p: Petitioner Nestor A. Jacot assails the Resolution 1 dated 28 September 2007 of the Commission on Elections (COMELEC) En Banc in SPA No. 07-361, affirming the Resolution dated 12 June 2007 of the COMELEC Second Division 2 disqualifying him from running for the position of Vice-Mayor of Catarman, Camiguin, in the 14 May 2007 National and Local Elections, on the ground that he failed to make a personal renouncement of his United States (US) citizenship. SCcHIE Petitioner was a natural born citizen of the Philippines, who became a naturalized citizen of the US on 13 December 1989. 3 Petitioner sought to reacquire his Philippine citizenship under Republic Act No. 9225, otherwise known as the Citizenship Retention and Re-Acquisition Act. He filed a request for the administration of his Oath of Allegiance to the Republic of the Philippines with the Philippine Consulate General (PCG) of Los Angeles, California. The Los Angeles PCG issued on 19 June 2006 an Order of Approval 4 of petitioner's request, and on the same day, petitioner took his Oath of Allegiance to the Republic of the Philippines before Vice Consul Edward C. Yulo. 5 On 27 September 2006, the Bureau of Immigration issued Identification Certificate No. 06-12019 recognizing petitioner as a citizen of the Philippines. 6 Six months after, on 26 March 2007, petitioner filed his Certificate of Candidacy for the Position of Vice-Mayor of the Municipality of Catarman, Camiguin. 7 On 2 May 2007, respondent Rogen T. Dal filed a Petition for Disqualification 8 before the COMELEC Provincial Office in Camiguin against petitioner, arguing that the latter failed to renounce his US citizenship, as required under Section 5 (2) of Republic Act No. 9225, which reads as follows: Section 5. Civil and Political Rights and Liabilities. — Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: xxx xxx xxx (2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. In his Answer 9 dated 6 May 2007 and Position Paper 10 dated 8 May 2007, petitioner countered that his Oath of Allegiance to the Republic of the Philippines made before the Los Angeles PCG and the oath contained in his Certificate of Candidacy operated as an effective renunciation of his foreign citizenship.

In the meantime, the 14 May 2007 National and Local Elections were held. Petitioner garnered the highest number of votes for the position of Vice Mayor. DaTEIc On 12 June 2007, the COMELEC Second Division finally issued its Resolution 11 disqualifying the petitioner from running for the position of Vice-Mayor of Catarman, Camiguin, for failure to make the requisite renunciation of his US citizenship. The COMELEC Second Division explained that the reacquisition of Philippine citizenship under Republic Act No. 9225 does not automatically bestow upon any person the privilege to run for any elective public office. It additionally ruled that the filing of a Certificate of Candidacy cannot be considered as a renunciation of foreign citizenship. The COMELEC Second Division did not consider Valles v. COMELEC 12 and Mercado v. Manzano 13 applicable to the instant case, since Valles and Mercado were dual citizens since birth, unlike the petitioner who lost his Filipino citizenship by means of naturalization. The COMELEC, thus, decreed in the aforementioned Resolution that: ACCORDINGLY, NESTOR ARES JACOT is DISQUALIFIED to run for the position of Vice-Mayor of Catarman, Camiguin for the May 14, 2007 National and Local Elections. If proclaimed, respondent cannot thus assume the Office of ViceMayor of said municipality by virtue of such disqualification. 14 Petitioner filed a Motion for Reconsideration on 29 June 2007 reiterating his position that his Oath of Allegiance to the Republic of the Philippines before the Los Angeles PCG and his oath in his Certificate of Candidacy sufficed as an effective renunciation of his US citizenship. Attached to the said Motion was an "Oath of Renunciation of Allegiance to the United States and Renunciation of Any and All Foreign Citizenship" dated 27 June 2007, wherein petitioner explicitly renounced his US citizenship. 15 The COMELEC en banc dismissed petitioner's Motion in a Resolution 16 dated 28 September 2007 for lack of merit. Petitioner sought remedy from this Court via the present Special Civil Action for Certiorari under Rule 65 of the Revised Rules of Court, where he presented for the first time an "Affidavit of Renunciation of Allegiance to the United States and Any and All Foreign Citizenship" 17 dated 7 February 2007. He avers that he executed an act of renunciation of his US citizenship, separate from the Oath of Allegiance to the Republic of the Philippines he took before the Los Angeles PCG and his filing of his Certificate of Candidacy, thereby changing his theory of the case during the appeal. He attributes the delay in the presentation of the affidavit to his former counsel, Atty. Marciano Aparte, who allegedly advised him that said piece of evidence was unnecessary but who, nevertheless, made him execute an identical document entitled "Oath of Renunciation of Allegiance to the United States and Renunciation of Any and All Foreign Citizenship" on 27 June 2007 after he had already filed his Certificate of Candidacy. 18 Petitioner raises the following issues for resolution of this Court: I WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE ABUSE OF DISCRETION WHEN IT HELD THAT PETITIONER FAILED TO COMPLY WITH THE PROVISIONS OF R.A. 9225, OTHERWISE KNOWN AS THE "CITIZENSHIP RETENTION AND RE-ACQUISITION ACT OF 2003", SPECIFICALLY SECTION 5(2) AS TO THE REQUIREMENTS FOR THOSE SEEKING ELECTIVE PUBLIC OFFICE; II WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE ABUSE OF DISCRETION WHEN IT HELD THAT PETITIONER FAILED TO COMPLY WITH THE PROVISIONS OF THE COMELEC RULES OF PROCEDURE AS REGARDS THE PAYMENT OF THE NECESSARY MOTION FEES; AND

III WHETHER OR NOT UPHOLDING THE DECISION OF PUBLIC RESPONDENT WOULD RESULT IN THE FRUSTRATION OF THE WILL OF THE PEOPLE OF CATARMAN, CAMIGUIN. 19 The Court determines that the only fundamental issue in this case is whether petitioner is disqualified from running as a candidate in the 14 May 2007 local elections for his failure to make a personal and sworn renunciation of his US citizenship. This Court finds that petitioner should indeed be disqualified. Contrary to the assertions made by petitioner, his oath of allegiance to the Republic of the Philippines made before the Los Angeles PCG and his Certificate of Candidacy do not substantially comply with the requirement of a personal and sworn renunciation of foreign citizenship because these are distinct requirements to be complied with for different purposes. Section 3 of Republic Act No. 9225 requires that natural-born citizens of the Philippines, who are already naturalized citizens of a foreign country, must take the following oath of allegiance to the Republic of the Philippines to reacquire or retain their Philippine citizenship: SEC. 3. Retention of Philippine Citizenship. — Any provision of law to the contrary notwithstanding, natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have reacquired Philippine citizenship upon taking the following oath of allegiance to the Republic: DcaCSE "I __________ solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily, without mental reservation or purpose of evasion." Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath. By the oath dictated in the afore-quoted provision, the Filipino swears allegiance to the Philippines, but there is nothing therein on his renunciation of foreign citizenship. Precisely, a situation might arise under Republic Act No. 9225 wherein said Filipino has dual citizenship by also reacquiring or retaining his Philippine citizenship, despite his foreign citizenship. SEDaAH The afore-quoted oath of allegiance is substantially similar to the one contained in the Certificate of Candidacy which must be executed by any person who wishes to run for public office in Philippine elections. Such an oath reads: I am eligible for the office I seek to be elected. I will support and defend the Constitution 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 of the Republic of the Philippines; and that I impose this obligation upon myself voluntarily, without mental reservation or purpose of evasion. I hereby certify that the facts stated herein are true and correct of my own personal knowledge. Now, Section 5 (2) of Republic Act No. 9225 specifically provides that: Section 5. Civil and Political Rights and Liabilities. — Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights

and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: xxx xxx xxx (2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. The law categorically requires persons seeking elective public office, who either retained their Philippine citizenship or those who reacquired it, to make a personal and sworn renunciation of any and all foreign citizenship before a public officer authorized to administer an oath simultaneous with or before the filing of the certificate of candidacy. 20 Hence, Section 5 (2) of Republic Act No. 9225 compels natural-born Filipinos, who have been naturalized as citizens of a foreign country, but who reacquired or retained their Philippine citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No. 9225, and (2) for those seeking elective public offices in the Philippines, to additionally execute a personal and sworn renunciation of any and all foreign citizenship before an authorized public officer prior or simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections. Clearly Section 5 (2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation of any and all foreign citizenship) requires of the Filipinos availing themselves of the benefits under the said Act to accomplish an undertaking other than that which they have presumably complied with under Section 3 thereof (oath of allegiance to the Republic of the Philippines). This is made clear in the discussion of the Bicameral Conference Committee on Disagreeing Provisions of House Bill No. 4720 and Senate Bill No. 2130 held on 18 August 2003 (precursors of Republic Act No. 9225), where the Hon. Chairman Franklin Drilon and Hon. Representative Arthur Defensor explained to Hon. Representative Exequiel Javier that the oath of allegiance is different from the renunciation of foreign citizenship: aSCHcA CHAIRMAN DRILON. Okay. So, No. 2. "Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath." I think it's very good, ha? No problem? REP. JAVIER. . . I think it's already covered by the oath. CHAIRMAN DRILON. Renouncing foreign citizenship. REP. JAVIER. Ah. . . but he has taken his oath already. CHAIRMAN DRILON. No. . .no, renouncing foreign citizenship. xxx xxx xxx

CHAIRMAN DRILON. Can I go back to No. 2. What's your problem, Boy? Those seeking elective office in the Philippines. REP. JAVIER. They are trying to make him renounce his citizenship thinking that ano. . . CHAIRMAN DRILON. His American citizenship. REP. JAVIER. To discourage him from running? CHAIRMAN DRILON. No. REP. A.D. DEFENSOR. No. When he runs he will only have one citizenship. When he runs for office, he will have only one. (Emphasis ours.) There is little doubt, therefore, that the intent of the legislators was not only for Filipinos reacquiring or retaining their Philippine citizenship underRepublic Act No. 9225 to take their oath of allegiance to the Republic of the Philippines, but also to explicitly renounce their foreign citizenship if they wish to run for elective posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos must only have one citizenship, namely, Philippine citizenship. TcEaAS By the same token, the oath of allegiance contained in the Certificate of Candidacy, which is substantially similar to the one contained in Section 3 of Republic Act No. 9225, does not constitute the personal and sworn renunciation sought under Section 5 (2) of Republic Act No. 9225. It bears to emphasize that the said oath of allegiance is a general requirement for all those who wish to run as candidates in Philippine elections; while the renunciation of foreign citizenship is an additional requisite only for those who have retained or reacquired Philippine citizenship under Republic Act No. 9225 and who seek elective public posts, considering their special circumstance of having more than one citizenship. Petitioner erroneously invokes the doctrine in Valles 21 and Mercado, 22 wherein the filing by a person with dual citizenship of a certificate of candidacy, containing an oath of allegiance, was already considered a renunciation of foreign citizenship. The ruling of this Court in Valles and Mercado is not applicable to the present case, which is now specially governed by Republic Act No. 9225, promulgated on 29 August 2003. In Mercado, which was cited in Valles, the disqualification of therein private respondent Manzano was sought under another law, Section 40 (d) of the Local Government Code, which reads: SEC. 40. Disqualifications. — The following persons are disqualified from running for any elective local position: xxx xxx xxx (d) Those with dual citizenship. The Court in the aforesaid cases sought to define the term "dual citizenship" vis-Ã -vis the concept of "dual allegiance". At the time this Court decided the cases of Valles and Mercado on

26 May 1999 and 9 August 2000, respectively, the more explicitly worded requirements of Section 5 (2) ofRepublic Act No. 9225 were not yet enacted by our legislature. 23 Lopez v. Commission on Elections 24 is the more fitting precedent for this case since they both share the same factual milieu. In Lopez, therein petitioner Lopez was a natural-born Filipino who lost his Philippine citizenship after he became a naturalized US citizen. He later reacquired his Philippine citizenship by virtue of Republic Act No. 9225. Thereafter, Lopez filed his candidacy for a local elective position, but failed to make a personal and sworn renunciation of his foreign citizenship. This Court unequivocally declared that despite having garnered the highest number of votes in the election, Lopez is nonetheless disqualified as a candidate for a local elective position due to his failure to comply with the requirements of Section 5 (2) ofRepublic Act No. 9225. Petitioner presents before this Court for the first time, in the instant Petition for Certiorari, an "Affidavit of Renunciation of Allegiance to the United States and Any and All Foreign Citizenship," 25 which he supposedly executed on 7 February 2007, even before he filed his Certificate of Candidacy on 26 March 2007. With the said Affidavit, petitioner puts forward in the Petition at bar a new theory of his case — that he complied with the requirement of making a personal and sworn renunciation of his foreign citizenship before filing his Certificate of Candidacy. This new theory constitutes a radical change from the earlier position he took before the COMELEC — that he complied with the requirement of renunciation by his oaths of allegiance to the Republic of the Philippines made before the Los Angeles PCG and in his Certificate of Candidacy, and that there was no more need for a separate act of renunciation. As a rule, no question will be entertained on appeal unless it has been raised in the proceedings below. Points of law, theories, issues and arguments not brought to the attention of the lower court, administrative agency or quasi-judicial body need not be considered by a reviewing court, as they cannot be raised for the first time at that late stage. Basic considerations of fairness and due process impel this rule. 26 Courts have neither the time nor the resources to accommodate parties who chose to go to trial haphazardly. 27 Likewise, this Court does not countenance the late submission of evidence. 28 Petitioner should have offered the Affidavit dated 7 February 2007 during the proceedings before the COMELEC. Section 1 of Rule 43 of the COMELEC Rules of Procedure provides that "In the absence of any applicable provisions of these Rules, the pertinent provisions of the Rules of Court in the Philippines shall be applicable by analogy or in suppletory character and effect." Section 34 of Rule 132 of the Revised Rules of Court categorically enjoins the admission of evidence not formally presented: SEC. 34. Offer of evidence. — The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. Since the said Affidavit was not formally offered before the COMELEC, respondent had no opportunity to examine and controvert it. To admit this document would be contrary to due process. 29 Additionally, the piecemeal presentation of evidence is not in accord with orderly justice. 30 SHCaDA The Court further notes that petitioner had already presented before the COMELEC an identical document, "Oath of Renunciation of Allegiance to the United States and Renunciation of Any and All Foreign Citizenship" executed on 27 June 2007, subsequent to his filing of his Certificate of Candidacy on 26 March 2007. Petitioner attached the said Oath of 27 June 2007 to his Motion for Reconsideration with the COMELEC en banc. The COMELEC en banc eventually refused to reconsider said document for being belatedly executed. What was extremely perplexing, not to mention suspect, was that petitioner did not submit the Affidavit of 7 February 2007 or

mention it at all in the proceedings before the COMELEC, considering that it could have easily won his case if it was actually executed on and in existence before the filing of his Certificate of Candidacy, in compliance with law. The justification offered by petitioner, that his counsel had advised him against presenting this crucial piece of evidence, is lame and unconvincing. If the Affidavit of 7 February 2007 was in existence all along, petitioner's counsel, and even petitioner himself, could have easily adduced it to be a crucial piece of evidence to prove compliance with the requirements of Section 5 (2) of Republic Act No. 9225. There was no apparent danger for petitioner to submit as much evidence as possible in support of his case, than the risk of presenting too little for which he could lose. And even if it were true, petitioner's excuse for the late presentation of the Affidavit of 7 February 2007 will not change the outcome of petitioner's case. It is a well-settled rule that a client is bound by his counsel's conduct, negligence, and mistakes in handling the case, and the client cannot be heard to complain that the result might have been different had his lawyer proceeded differently. 31 The only exceptions to the general rule — that a client is bound by the mistakes of his counsel — which this Court finds acceptable are when the reckless or gross negligence of counsel deprives the client of due process of law, or when the application of the rule results in the outright deprivation of one's property through a technicality. 32 These exceptions are not attendant in this case. The Court cannot sustain petitioner's averment that his counsel was grossly negligent in deciding against the presentation of the Affidavit of 7 February 2007 during the proceedings before the COMELEC. Mistakes of attorneys as to the competency of a witness; the sufficiency, relevancy or irrelevancy of certain evidence; the proper defense or the burden of proof, failure to introduce evidence, to summon witnesses and to argue the case — unless they prejudice the client and prevent him from properly presenting his case — do not constitute gross incompetence or negligence, such that clients may no longer be bound by the acts of their counsel. 33 aCSHDI Also belying petitioner's claim that his former counsel was grossly negligent was the fact that petitioner continuously used his former counsel's theory of the case. Even when the COMELEC already rendered an adverse decision, he persistently argues even to this Court that his oaths of allegiance to the Republic of the Philippines before the Los Angeles PCG and in his Certificate of Candidacy amount to the renunciation of foreign citizenship which the law requires. Having asserted the same defense in the instant Petition, petitioner only demonstrates his continued reliance on and complete belief in the position taken by his former counsel, despite the former's incongruous allegations that the latter has been grossly negligent. Petitioner himself is also guilty of negligence. If indeed he believed that his counsel was inept, petitioner should have promptly taken action, such as discharging his counsel earlier and/or insisting on the submission of his Affidavit of 7 February 2007 to the COMELEC, instead of waiting until a decision was rendered disqualifying him and a resolution issued dismissing his motion for reconsideration; and, thereupon, he could have heaped the blame on his former counsel. Petitioner could not be so easily allowed to escape the consequences of his former counsel's acts, because, otherwise, it would render court proceedings indefinite, tentative, and subject to reopening at any time by the mere subterfuge of replacing counsel. 34 Petitioner cites De Guzman v. Sandiganbayan, 35 where therein petitioner De Guzman was unable to present a piece of evidence because his lawyer proceeded to file a demurrer to evidence, despite the Sandiganbayan's denial of his prior leave to do so. The wrongful insistence of the lawyer in filing a demurrer to evidence had totally deprived De Guzman of any chance to present documentary evidence in his defense. This was certainly not the case in the Petition at bar.

Herein, petitioner was in no way deprived of due process. His counsel actively defended his suit by attending the hearings, filing the pleadings, and presenting evidence on petitioner's behalf. Moreover, petitioner's cause was not defeated by a mere technicality, but because of a mistaken reliance on a doctrine which is not applicable to his case. A case lost due to an untenable legal position does not justify a deviation from the rule that clients are bound by the acts and mistakes of their counsel. 36 Petitioner also makes much of the fact that he received the highest number of votes for the position of Vice-Mayor of Catarman during the 2007 local elections. The fact that a candidate, who must comply with the election requirements applicable to dual citizens and failed to do so, received the highest number of votes for an elective position does not dispense with, or amount to a waiver of, such requirement. 37 The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed that the candidate was qualified. The rules on citizenship qualifications of a candidate must be strictly applied. If a person seeks to serve the Republic of the Philippines, he must owe his loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state. 38 The application of the constitutional and statutory provisions on disqualification is not a matter of popularity. 39 aAcHCT WHEREFORE, the instant appeal is DISMISSED. The Resolution dated 28 September 2007 of the COMELEC en banc in SPA No. 07-361, affirming the Resolution dated 12 June 2007 of the COMELEC Second Division, is AFFIRMED. Petitioner is DISQUALIFIED to run for the position of Vice-Mayor of Catarman, Camiguin in the 14 May 2007 National and Local Elections, and if proclaimed, cannot assume the Office of Vice-Mayor of said municipality by virtue of such disqualification. Costs against petitioner. SO ORDERED. ||| (Jacot v. Dal, G.R. No. 179848, [November 27, 2008], 592 PHIL 661-680) [G.R. No. 176947. February 19, 2009.] GAUDENCIO M. CORDORA, petitioner, vs. COMMISSION ON ELECTIONS and GUSTAVO S. TAMBUNTING, respondents.

DECISION

CARPIO, J p: The Case This is a petition for certiorari and mandamus, with prayer for the issuance of a temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure. In EO Case No. 05-17, Gaudencio M. Cordora (Cordora) accused Gustavo S. Tambunting (Tambunting)of an election offense for violating Section 74 in relation to Section 262 of the Omnibus Election Code. The Commission on Elections' (COMELEC) En Banc dismissed Cordora's complaint in a Resolution 1 dated 18 August 2006. The present petition seeks to reverse the 18 August 2006 Resolution as well as the Resolution 2 dated 20 February 2007 of the COMELEC En Banc which denied Cordora's motion for reconsideration. cSICHD The Facts In his complaint affidavit filed before the COMELEC Law Department, Cordora asserted that Tambunting made false assertions in the following items:

That Annex A [Tambunting's Certificate of Candidacy for the 2001 elections] and Annex B [Tambunting's Certificate of Candidacy for the 2004 elections] state, among others, as follows, particularly Nos. 6, 9 and 12 thereof: 1. No. 6 — I am a Natural Born/Filipino Citizen 2. No. 9 — No. of years of Residence before May 14, 2001. 36 in the Philippines and 25 in the Constituency where I seek to be elected; 3. No. 12 — I am ELIGIBLE for the office I seek to be elected. 3 (Boldface and capitalization in the original) Cordora stated that Tambunting was not eligible to run for local public office because Tambunting lacked the required citizenship and residency requirements. To disprove Tambunting's claim of being a natural-born Filipino citizen, Cordora presented a certification from the Bureau of Immigration which stated that, in two instances, Tambunting claimed that he is an American: upon arrival in the Philippines on 16 December 2000 and upon departure from the Philippines on 17 June 2001. According to Cordora, these travel dates confirmed that Tambunting acquired American citizenship through naturalization in Honolulu, Hawaii on 2 December 2000. Cordora concluded: That Councilor Gustavo S. Tambunting contrary to the provision of Sec. 74 (OEC): [sic] Re: CONTENTS OF CERTIFICATE OF CANDIDACY: which requires the declarant/affiant to state, among others, under oath, that he is a Filipino (No. 6), No. 9- residence requirement which he lost when [he was] naturalized as an American Citizen on December 2, 2000 at [sic] Honolulu, Hawaii, knowingly and willfully affirmed and reiterated that he possesses the abovebasic requirements under No. 12 — that he is indeed eligible for the office to which he seeks to be elected, when in truth and in fact, the contraryis indubitably established by his own statements before the Philippine Bureau of Immigration . . . . 4 (Emphases in the original) aEcHCD Tambunting, on the other hand, maintained that he did not make any misrepresentation in his certificates of candidacy. To refute Cordora's claim that Tambunting is not a natural-born Filipino, Tambunting presented a copy of his birth certificate which showed that he was born of a Filipino mother and an American father. Tambunting further denied that he was naturalized as an American citizen. The certificate of citizenship conferred by the US government after Tambunting's father petitioned him through INS Form I-130 (Petition for Relative) merely confirmed Tambunting's citizenship which he acquired at birth. Tambunting's possession of an American passport did not mean that Tambunting is not a Filipino citizen. Tambunting also took an oath of allegiance on 18 November 2003 pursuant to Republic Act No. 9225 (R.A. No. 9225), or the Citizenship Retention and Reacquisition Act of 2003. Tambunting further stated that he has resided in the Philippines since birth. Tambunting has imbibed the Filipino culture, has spoken the Filipino language, and has been educated in Filipino schools. Tambunting maintained that proof of his loyalty and devotion to the Philippines was shown by his service as councilor of Parañaque. To refute Cordora's claim that the number of years of residency stated in Tambunting's certificates of candidacy is false because Tambunting lost his residency because of his naturalization as an American citizen, Tambunting contended that the residency requirement is not the same as citizenship. The Ruling of the COMELEC Law Department

The COMELEC Law Department recommended the dismissal of Cordora's complaint against Tambunting because Cordora failed to substantiate his charges against Tambunting. Cordora's reliance on the certification of the Bureau of Immigration that Tambunting traveled on an American passport is not sufficient to prove that Tambunting is an American citizen. The Ruling of the COMELEC En Banc The COMELEC En Banc affirmed the findings and the resolution of the COMELEC Law Department. The COMELEC En Banc was convinced that Cordora failed to support his accusation against Tambunting by sufficient and convincing evidence. The dispositive portion of the COMELEC En Banc's Resolution reads as follows: TAcDHS WHEREFORE, premises considered, the instant complaint is hereby DISMISSED for insufficiency of evidence to establish probable cause. SO ORDERED. 5 Commissioner Rene V. Sarmiento (Commissioner Sarmiento) wrote a separate opinion which concurred with the findings of the En BancResolution. Commissioner Sarmiento pointed out that Tambunting could be considered a dual citizen. Moreover, Tambunting effectively renounced his American citizenship when he filed his certificates of candidacy in 2001 and 2004 and ran for public office. Cordora filed a motion for reconsideration which raised the same grounds and the same arguments in his complaint. In its Resolution promulgated on 20 February 2007, the COMELEC En Banc dismissed Cordora's motion for reconsideration for lack of merit. SACHcD The Issue Cordora submits that the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it declared that there is no sufficient evidence to support probable cause that may warrant the prosecution of Tambunting for an election offense. Cordora's petition is not an action to disqualify Tambunting because of Tambunting's failure to meet citizenship and residency requirements. Neither is the present petition an action to declare Tambunting a non-Filipino and a non-resident. The present petition seeks to prosecute Tambunting for knowingly making untruthful statements in his certificates of candidacy. The Ruling of the Court The petition has no merit. We affirm the ruling of the COMELEC En Banc. Whether there is Probable Cause to Hold Tambunting for Trial for Having Committed an Election Offense There was no grave abuse of discretion in the COMELEC En Banc's ruling that there is no sufficient and convincing evidence to support a finding of probable cause to hold Tambunting for trial for violation of Section 74 in relation to Section 262 of the Omnibus Election Code. Probable cause constitutes those facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed. Determining probable cause is an intellectual activity premised on the prior physical presentation or submission of documentary or testimonial proofs either confirming, negating or qualifying the allegations in the complaint. 6 cESDCa Section 74 of the Omnibus Election Code reads as follows: Contents of certificate of candidacy. — The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; . . . the political party to which he belongs; civil status; his

date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. xxx xxx xxx The person filing a certificate of candidacy shall also affix his latest photograph, passport size; a statement in duplicate containing his bio-data and program of government not exceeding one hundred words, if he so desires. Section 262 of the Omnibus Election Code, on the other hand, provides that violation of Section 74, among other sections in the Code, shall constitute an election offense. Tambunting's Dual Citizenship Tambunting does not deny that he is born of a Filipino mother and an American father. Neither does he deny that he underwent the process involved in INS Form I-130 (Petition for Relative) because of his father's citizenship. Tambunting claims that because of his parents' differing citizenships, he is both Filipino and American by birth. Cordora, on the other hand, insists that Tambunting is a naturalized American citizen. We agree with Commissioner Sarmiento's observation that Tambunting possesses dual citizenship. Because of the circumstances of his birth, it was no longer necessary for Tambunting to undergo the naturalization process to acquire American citizenship. The process involved in INS Form I-130 only served to confirm the American citizenship which Tambunting acquired at birth. The certification from the Bureau of Immigration which Cordora presented contained two trips where Tambunting claimed that he is an American. However, the same certification showed nine other trips where Tambunting claimed that he is Filipino. Clearly, Tambunting possessed dual citizenship prior to the filing of his certificate of candidacy before the 2001 elections. The fact that Tambunting had dual citizenship did not disqualify him from running for public office. 7 HcSaAD Requirements for who desire to run for public office

dual

citizens

from

birth

We deem it necessary to reiterate our previous ruling in Mercado v. Manzano, wherein we ruled that dual citizenship is not a ground for disqualification from running for any elective local position. To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli;

(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers' country such children are citizens of that country; (3) Those who marry aliens if by the laws of the latter's country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are clearly possible given the constitutional provisions on citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual's volition. HSIaAT xxx xxx xxx [I]n including §5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase "dual citizenship" in R.A. No. 7160, §40(d) and inR.A. No. 7854, §20 must be understood as referring to "dual allegiance". Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is something completely beyond our control." By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment as the following discussion on §40(d) between Senators Enrile and Pimentel clearly shows: SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: "Any person with dual citizenship" is disqualified to run for any elective local position. Under the present Constitution, Mr. President, someone whose mother is a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the Republic. There is no requirement that such a natural-born citizen, upon reaching the age of majority, must elect or give up Philippine citizenship. aETASc On the assumption that this person would carry two passports, one belonging to the country of his or her father and one belonging to the Republic of the Philippines, may such a situation disqualify the person to run for a local government position?

SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would want to run for public office, he has to repudiate one of his citizenships. SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the country of the father claims that person, nevertheless, as a citizen? No one can renounce. There are such countries in the world. cECTaD SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an election for him of his desire to be considered a Filipino citizen. SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an election. Under the Constitution, a person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim the citizenship. SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentleman's example, if he does not renounce his other citizenship, then he is opening himself to question. So, if he is really interested to run, the first thing he should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I have only one citizenship." SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will always have one citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic. SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he also acknowledges other citizenships, then he will probably fall under this disqualification. 8 (Emphasis supplied) We have to consider the present case in consonance with our rulings in Mercado v. Manzano, 9 Valles v. COMELEC, 10 and AASJS v. Datumanong. 11Mercado and Valles involve similar operative facts as the present case. Manzano and Valles, like Tambunting, possessed dual citizenship by the circumstances of their birth. Manzano was born to Filipino parents in the United States which follows the doctrine of jus soli. Valles was born to an Australian mother and a Filipino father in Australia. Our rulings in Manzano and Valles stated that dual citizenship is different from dual allegiance both by cause and, for those desiring to run for public office, by effect. Dual citizenship is involuntary and arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. Thus, like any other natural-born Filipino, it is enough for a person with dual citizenship who seeks public office to file his certificate of candidacy and swear to the oath of allegiance contained therein. Dual allegiance, on the other hand, is brought about by the individual's active participation in the naturalization process. AASJS states that, under R.A. No. 9225, a Filipino who becomes a naturalized citizen of another country is allowed to retain his Filipino citizenship by swearing to the supreme authority of the Republic of the Philippines. The act of taking an oath of allegiance is an implicit renunciation of a naturalized citizen's foreign citizenship. aADSIc

R.A. No. 9225, or the Citizenship Retention and Reacquisition Act of 2003, was enacted years after the promulgation of Manzano and Valles. The oath found in Section 3 of R.A. No. 9225 reads as follows: I _______________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion. In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with dual citizenship per se, but with the status of naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. 12 Section 5 (3) of R.A. No. 9225 states that naturalized citizens who reacquire Filipino citizenship and desire to run for elective public office in the Philippines shall "meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of filing the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath" aside from the oath of allegiance prescribed in Section 3 of R.A. No. 9225. The twin requirements of swearing to an Oath of Allegiance and executing a Renunciation of Foreign Citizenship served as the bases for our recent rulings in Jacot v. Dal and COMELEC, 13 Velasco v. COMELEC, 14 and Japzon v. COMELEC, 15 all of which involve natural-born Filipinos who later became naturalized citizens of another country and thereafter ran for elective office in the Philippines. In the present case, Tambunting, a natural-born Filipino, did not subsequently become a naturalized citizen of another country. Hence, the twin requirements in R.A. No. 9225 do not apply to him. Tambunting's residency Cordora concluded that Tambunting failed to meet the residency requirement because of Tambunting's naturalization as an American. Cordora's reasoning fails because Tambunting is not a naturalized American. Moreover, residency, for the purpose of election laws, includes the twin elements of the fact of residing in a fixed place and the intention to return there permanently, 16 and is not dependent upon citizenship. In view of the above, we hold that Cordora failed to establish that Tambunting indeed willfully made false entries in his certificates of candidacy. On the contrary, Tambunting sufficiently proved his innocence of the charge filed against him. Tambunting is eligible for the office which he sought to be elected and fulfilled the citizenship and residency requirements prescribed by law. WHEREFORE, we DISMISS the petition. We AFFIRM the Resolutions of the Commission on Elections En Banc dated 18 August 2006 and 20 February 2007 in EO Case No. 05-17. SO ORDERED. ||| (Cordora v. Commission on Elections, G.R. No. 176947, [February 19, 2009], 599 PHIL 168-181) [G.R. No. 209835. September 22, 2015.] ROGELIO BATIN CABALLERO, petitioner, vs. COMMISSION ON ELECTIONS and JONATHAN ENRIQUE V. NANUD, JR., respondents.

DECISION

PERALTA, J p: Before us is a petition for certiorari with prayer for issuance of a temporary restraining order seeking to set aside the Resolution 1 dated November 6, 2013 of the Commission on Elections (COMELEC) En Banc which affirmed in toto the Resolution 2 dated May 3, 2013 of the COMELEC First Division canceling the Certificate of Candidacy (COC) of petitioner Rogelio Batin Caballero. Petitioner 3 and private respondent Jonathan Enrique V. Nanud, Jr. 4 were both candidates for the mayoralty position of the Municipality of Uyugan, Province of Batanes in the May 13, 2013 elections. Private respondent filed a Petition 5 to deny due course to or cancellation of petitioner's certificate of candidacy alleging that the latter made a false representation when he declared in his COC that he was eligible to run for Mayor of Uyugan, Batanes despite being a Canadian citizen and a non-resident thereof. During the December 10, 2012 conference, petitioner, through counsel, manifested that he was not properly served with a copy of the petition and the petition was served by registered mail not in his address in Barangay Imnajbu, Uyugan, Batanes. He, however, received a copy of the petition during the conference. Petitioner did not file an Answer but filed a Memorandum controverting private respondent's substantial allegations in his petition. Petitioner argued that prior to the filing of his COC on October 3, 2012, he took an Oath of Allegiance to the Republic of the Philippines before the Philippine Consul General in Toronto, Canada on September 13, 2012 and became a dual Filipino and Canadian citizen pursuant to Republic Act (RA) No. 9225, otherwise known as the Citizenship Retention and Reacquisition Act of 2003. Thereafter, he renounced his Canadian citizenship and executed an Affidavit of Renunciation before a Notary Public in Batanes on October 1, 2012 to conform with Section 5 (2) of RA No. 9225. 6 He claimed that he did not lose his domicile of origin in Uyugan, Batanes despite becoming a Canadian citizen as he merely left Uyugan temporarily to pursue a brighter future for him and his family; and that he went back to Uyugan during his vacation while working in Nigeria, California, and finally in Canada. On May 3, 2013, the COMELEC First Division issued a Resolution finding that petitioner made a material misrepresentation in his COC when he declared that he is a resident of Barangay Imnajbu, Uyugan, Batanes within one year prior to the election. The decretal portion of the resolution reads: WHEREFORE, premises considered, this Commission RESOLVED, as it hereby RESOLVES to GRANT the instant Petition. The Certificate of Candidacy of respondent Caballero is hereby CANCELLED. 7 The COMELEC First Division did not discuss the procedural deficiency raised by petitioner as he was already given a copy of the petition and also in consonance with the Commission's constitutional duty of determining the qualifications of petitioner to run for elective office. It found that while petitioner complied with the requirements of RA No. 9225 since he had taken his Oath of Allegiance to the Philippines and had validly renounced his Canadian citizenship, he failed to comply with the other requirements provided under RA No. 9225 for those seeking elective office, i.e., persons who renounced their foreign citizenship must still comply with the one year residency requirement provided for under Section 39 of the Local Government Code. Petitioner's naturalization as a Canadian citizen resulted in the abandonment of his domicile of origin in Uyugan, Batanes; thus, having abandoned his domicile of origin, it is incumbent upon him to prove that he was able to reestablish his domicile in Uyugan for him to be eligible to run for elective office in said locality which he failed to do. acEHCD Elections were subsequently held on May 13, 2013 and the election returns showed that petitioner won over private respondent. 8 Private respondent filed an Urgent Ex-parte Motion to Defer Proclamation. 9

On May 14, 2013, petitioner was proclaimed Mayor of Uyugan, Batanes. On May 16, 2013, petitioner filed a Motion for Reconsideration with the COMELEC En Banc assailing the May 3, 2013 Resolution issued by the COMELEC's First Division canceling his COC. On May 17, 2013, private respondent filed a Petition to Annul Proclamation. 10 On November 6, 2013, the COMELEC En Banc issued its assailed Resolution denying petitioner's motion for reconsideration. Petitioner filed with us the instant petition for certiorari with prayer for the issuance of a temporary restraining order. In the meantime, private respondent filed a Motion for Execution 11 of the May 3, 2013 Resolution of the COMELEC First Division as affirmed by the En Banc and prayed for the cancellation of petitioner's COC, the appropriate correction of the certificate of canvas to reflect that all votes in favor of petitioner are stray votes, declaration of nullity of petitioner's proclamation and proclamation of private respondent as the duly-elected Mayor of Uyugan, Batanes in the May 13, 2013 elections. On December 12, 2013, COMELEC Chairman Sixto S. Brillantes, Jr. issued a Writ of Execution. 12 Private respondent took his Oath of Office 13 on December 20, 2013. In the instant petition for certiorari, petitioner raises the following assignment of errors, to wit: THE COMELEC EN BANC GRAVELY ERRED IN DISREGARDING THE CLEAR IMPORT OF PROCEDURAL RULES PROVIDED FOR UNDER COMELEC RESOLUTION NO. 9523 PROMULGATED ON 25 SEPTEMBER 2012. THE COMELEC EN BANC GRAVELY ERRED IN FINDING THAT PETITIONER ABANDONED HIS PHILIPPINE DOMICILE WHEN HE WORKED IN SEVERAL FOREIGN COUNTRIES FOR "GREENER PASTURE." EVEN ASSUMING THAT PETITIONER HAS ABANDONED HIS PHILIPPINE DOMICILE WHEN HE BECAME A CANADIAN CITIZEN, HIS REACQUISITION OF HIS FILIPINO CITIZENSHIP, TAKING OATH OF ALLEGIANCE TO THE PHILIPPINE GOVERNMENT NINE (9) MONTHS PRIOR TO HIS ELECTION ON 13 MAY 2013, IS A SUBSTANTIAL COMPLIANCE WITH THE LAW ON RESIDENCY. 14 Petitioner contends that when private respondent filed a petition to deny due course or to cancel his COC with the Office of the Municipal Election Officer of Uyugan, Batanes, a copy thereof was not personally served on him; that private respondent later sent a copy of the petition to him by registered mail without an attached affidavit stating the reason on why registered mail as a mode of service was resorted to. Petitioner argues that private respondent violated Section 4, paragraphs (1) 15 and (4), 16 Rule 23 of the COMELEC Rules of Procedure, as amended by COMELEC Resolution No. 9523, thus, his petition to deny due course or cancel petitioner's certificate of candidacy should have been denied outright. We are not convinced. While private respondent failed to comply with the above-mentioned requirements, the settled rule, however, is that the COMELEC Rules of Procedure are subject to liberal construction. Moreover, the COMELEC may exercise its power to suspend its own rules as provided under Section 4, Rule 1 of their Rules of Procedure.

Sec. 4. Suspension of the Rules. — In the interest of justice and in order to obtain speedy disposition of all matters pending before the Commission, these rules or any portion thereof may be suspended by the Commission. Under this authority, the Commission is similarly enabled to cope with all situations without concerning itself about procedural niceties that do not square with the need to do justice, in any case without further loss of time, provided that the right of the parties to a full day in court is not substantially impaired. 17 In Hayudini v. COMELEC, 18 we sustained the COMELEC's liberal treatment of respondent's petition to deny due course or cancel petitioner's COC despite its failure to comply with Sections 2 and 4 of Rule 23 of the COMELEC Rules of Procedure, as amended by Resolution No. 9523, i.e., pertaining to the period to file petition and to provide sufficient explanation as to why his petition was not served personally on petitioner, respectively, and held that: As a general rule, statutes providing for election contests are to be liberally construed in order that the will of the people in the choice of public officers may not be defeated by mere technical objections. Moreover, it is neither fair nor just to keep in office, for an indefinite period, one whose right to it is uncertain and under suspicion. It is imperative that his claim be immediately cleared, not only for the benefit of the winner but for the sake of public interest, which can only be achieved by brushing aside technicalities of procedure that protract and delay the trial of an ordinary action. This principle was reiterated in the cases of Tolentino v. Commission on Elections and De Castro v. Commission on Elections, where the Court held that "in exercising its powers and jurisdiction, as defined by its mandate to protect the integrity of elections, the COMELEC must not be straitjacketed by procedural rules in resolving election disputes." Settled is the rule that the COMELEC Rules of Procedure are subject to liberal construction. The COMELEC has the power to liberally interpret or even suspend its rules of procedure in the interest of justice, including obtaining a speedy disposition of all matters pending before it. This liberality is for the purpose of promoting the effective and efficient implementation of its objectives — ensuring the holding of free, orderly, honest, peaceful, and credible elections, as well as achieving just, expeditious, and inexpensive determination and disposition of every action and proceeding brought before the COMELEC. Unlike an ordinary civil action, an election contest is imbued with public interest. It involves not only the adjudication of private and pecuniary interests of rival candidates, but also the paramount need of dispelling the uncertainty which beclouds the real choice of the electorate. And the tribunal has the corresponding duty to ascertain, by all means within its command, whom the people truly chose as their rightful leader. 19 SDHTEC Here, we find that the issue raised, i.e., whether petitioner had been a resident of Uyugan, Batanes at least one (1) year before the elections held on May 13, 2013 as he represented in his COC, pertains to his qualification and eligibility to run for public office, therefore imbued with public interest, which justified the COMELEC's suspension of its own rules. We adopt the COMELEC's ratiocination in accepting the petition, to wit: This Commission recognizes the failure of petitioner to comply strictly with the procedure for filing a petition to deny due course to or cancel certificate of candidacy set forth in Section 4, Rule 23 of the COMELEC Rules of Procedure as amended by COMELEC Resolution No. 9523, which requires service of a copy of the petition to respondent prior to its filing. But then, we should also consider the efforts exerted by petitioner in serving a copy of his petition to respondent after being made aware

that such service is necessary. We should also take note of the impossibility for petitioner to personally serve a copy of the petition to respondent since he was in Canada at the time of its filing as shown in respondent's travel records. The very purpose of prior service of the petition to respondent is to afford the latter an opportunity to answer the allegations contained in the petition even prior to the service of summons by the Commission to him. In this case, respondent was given a copy of the petition during the conference held on 10 December 2012 and was ultimately accorded the occasion to rebut all the allegations against him. He even filed a Memorandum containing his defenses to petitioner's allegations. For all intents and purposes, therefore, respondent was never deprived of due process which is the very essence of this Commission's Rules of Procedure. Even the Supreme Court acknowledges the need for procedural rules to bow to substantive considerations "through a liberal construction aimed at promoting their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. . . . xxx xxx xxx When a case is impressed with public interest, a relaxation of the application of the rules is in order. . . . . Unquestionably, the instant case is impressed with public interest which warrants the relaxation of the application of the [R]ules of [P]rocedure, consistent with the ruling of the Supreme Court in several cases. 20 Petitioner next claims that he did not abandon his Philippine domicile. He argues that he was born and baptized in Uyugan, Batanes; studied and had worked therein for a couple of years, and had paid his community tax certificate; and, that he was a registered voter and had exercised his right of suffrage and even built his house therein. He also contends that he usually comes back to Uyugan, Batanes during his vacations from work abroad, thus, his domicile had not been lost. Petitioner avers that the requirement of the law in fixing the residence qualification of a candidate running for public office is not strictly on the period of residence in the place where he seeks to be elected but on the acquaintance by the candidate on his constituents' vital needs for their common welfare; and that his nine months of actual stay in Uyugan, Batanes prior to his election is a substantial compliance with the law. Petitioner insists that the COMELEC gravely abused its discretion in canceling his COC. HSAcaE We are not persuaded. RA No. 9225, which is known as the Citizenship Retention and Reacquisition Act of 2003, declares that natural-born citizens of the Philippines, who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country, can re-acquire or retain his Philippine citizenship under the conditions of the law. 21 The law does not provide for residency requirement for the reacquisition or retention of Philippine citizenship; nor does it mention any effect of such reacquisition or retention of Philippine citizenship on the current residence of the concerned natural-born Filipino. 22 RA No. 9225 treats citizenship independently of residence. 23 This is only logical and consistent with the general intent of the law to allow for dual citizenship. Since a natural-born Filipino may hold, at the same time, both Philippine and foreign citizenships, he may establish residence either in the Philippines or in the foreign country of which he is also a citizen. 24 However, when a natural-born Filipino with dual citizenship seeks for an elective public office, residency in the Philippines becomes material. Section 5 (2) of RA No. 9225 provides:

SEC. 5. Civil and Political Rights and Liabilities. — Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: xxx xxx xxx (2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by theConstitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. Republic Act No. 7160, which is known as the Local Government Code of 1991, provides, among others, for the qualifications of an elective local official. Section 39 thereof states: SEC. 39. Qualifications. — (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sanggunian bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. Clearly, the Local Government Code requires that the candidate must be a resident of the place where he seeks to be elected at least one year immediately preceding the election day. Respondent filed the petition for cancellation of petitioner's COC on the ground that the latter made material misrepresentation when he declared therein that he is a resident of Uyugan, Batanes for at least one year immediately preceding the day of elections. The term "residence" is to be understood not in its common acceptation as referring to "dwelling" or "habitation," but rather to "domicile" or legal residence, 25 that is, "the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi)." 26 A domicile of origin is acquired by every person at birth. It is usually the place where the child's parents reside and continues until the same is abandoned by acquisition of new domicile (domicile of choice). It consists not only in the intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. 27 Petitioner was a natural born Filipino who was born and raised in Uyugan, Batanes. Thus, it could be said that he had his domicile of origin in Uyugan, Batanes. However, he later worked in Canada and became a Canadian citizen. In Coquilla v. COMELEC, 28 we ruled that naturalization in a foreign country may result in an abandonment of domicile in the Philippines. This holds true in petitioner's case as permanent resident status in Canada is required for the acquisition of Canadian citizenship. 29 Hence, petitioner had effectively abandoned his domicile in the Philippines and transferred his domicile of choice in Canada. His frequent visits to Uyugan, Batanes during his vacation from work in Canada cannot be considered as waiver of such abandonment. The next question is what is the effect of petitioner's retention of his Philippine citizenship under RA No. 9225 on his residence or domicile? In Japzon v. COMELEC, 30 wherein respondent Ty reacquired his Philippine citizenship under RA No. 9225 and run for Mayor of General Macarthur, Eastern Samar and whose residency in the said place was put in issue, we had the occasion to state, thus: HESIcT

[Petitioner's] reacquisition of his Philippine citizenship under Republic Act No. 9225 had no automatic impact or effect on his residence/domicile. He could still retain his domicile in the USA, and he did not necessarily regain his domicile in the Municipality of General Macarthur, Eastern Samar, Philippines. Ty merely had the option to again establish his domicile in the Municipality of General Macarthur, Eastern Samar, Philippines, said place becoming his new domicile of choice. The length of his residence therein shall be determined from the time he made it his domicile of choice, and it shall not retroact to the time of his birth. 31 Hence, petitioner's retention of his Philippine citizenship under RA No. 9225 did not automatically make him regain his residence in Uyugan, Batanes. He must still prove that after becoming a Philippine citizen on September 13, 2012, he had reestablished Uyugan, Batanes as his new domicile of choice which is reckoned from the time he made it as such. The COMELEC found that petitioner failed to present competent evidence to prove that he was able to reestablish his residence in Uyugan within a period of one year immediately preceding the May 13, 2013 elections. It found that it was only after reacquiring his Filipino citizenship by virtue of RA No. 9225 on September 13, 2012 that petitioner can rightfully claim that he reestablished his domicile in Uyugan, Batanes, if such was accompanied by physical presence thereat, coupled with an actual intent to reestablish his domicile there. However, the period from September 13, 2012 to May 12, 2013 was even less than the one year residency required by law. Doctrinally entrenched is the rule that in a petition for certiorari, findings of fact of administrative bodies, such as respondent COMELEC in the instant case, are final unless grave abuse of discretion has marred such factual determinations. 32 Clearly, where there is no proof of grave abuse of discretion, arbitrariness, fraud or error of law in the questioned Resolutions, we may not review the factual findings of COMELEC, nor substitute its own findings on the sufficiency of evidence. 33 Records indeed showed that petitioner failed to prove that he had been a resident of Uyugan, Batanes for at least one year immediately preceding the day of elections as required under Section 39 of the Local Government Code. Petitioner's argument that his nine (9) months of actual stay in Uyugan, Batanes, prior to the May 13, 2013 local elections is a substantial compliance with the law, is not persuasive. In Aquino v. Commission on Elections, 34 we held: . . . A democratic government is necessarily a government of laws. In a republican government those laws are themselves ordained by the people. Through their representatives, they dictate the qualifications necessary for service in government positions. And as petitioner clearly lacks one of the essential qualifications for running for membership in the House of Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City would substitute for a requirement mandated by the fundamental law itself. 35 AcICHD Petitioner had made a material misrepresentation by stating in his COC that he is a resident of Uyugan, Batanes for at least one (1) year immediately preceding the day of the election, thus, a ground for a petition under Section 78 of the Omnibus Election Code. Section 74, in relation to Section 78, of the OEC governs the cancellation of, and grant or denial of due course to COCs, to wit: SEC. 74. Contents of certificate of candidacy. — The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs;

civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge. xxx xxx xxx SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. — A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. We have held that in order to justify the cancellation of COC under Section 78, it is essential that the false representation mentioned therein pertains to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate — the right to run for the elective post for which he filed the certificate of candidacy. 36 We concluded that material representation contemplated by Section 78 refers to qualifications for elective office, such as the requisite residency, age, citizenship or any other legal qualification necessary to run for a local elective office as provided for in the Local Government Code. 37 Furthermore, aside from the requirement of materiality, the misrepresentation must consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. 38 We, therefore, find no grave abuse of discretion committed by the COMELEC in canceling petitioner's COC for material misrepresentation. WHEREFORE, the petition for certiorari is DISMISSED. The Resolution dated May 3, 2013 of the COMELEC First Division and the Resolution dated November 6, 2013 of the COMELEC En Banc and are hereby AFFIRMED. SO ORDERED. ||| (Caballero v. Commission on Elections, G.R. No. 209835, [September 22, 2015]) [G.R. No. 88831. November 8, 1990.] MATEO CAASI, petitioner, vs. THE HON. COURT OF APPEALS and MERITO C. MIGUEL, respondents. [G.R. No. 84508. November 8, 1990.] ANECITO CASCANTE, petitioner, vs. MERITO C. MIGUEL, respondents.

THE COMMISSION ON ELECTIONS and

Ireneo B. Orlino for petitioner in G.R. Nos. 88831 & 84508. Montemayor & Montemayor Law Office for private respondent. SYLLABUS

1. POLITICAL LAW; SUFFRAGE AND ELECTIONS; ELIGIBILITY OF CANDIDATES; IMMIGRATION TO THE UNITED STATES, CONSTITUTED AN ABANDONMENT OF DOMICILE AND RESIDENCE IN THE PHILIPPINES. — In the case of Merito Miguel, the Court deems it significant that in the "Application for Immigrant Visa and Alien Registration" (Optional Form No. 230, Department of State) which Miguel filled up in his own handwriting and submitted to the US Embassy in Manila before his departure for the United States in 1984, Miguel's answer to Question No. 21 therein regarding his "Length of intended stay (if permanently, so state)," Miguel's answer was, "Permanently." On its face, the green card that was subsequently issued by the United States Department of Justice and Immigration and Registration Service to the respondent Merito C. Miguel identifies him in clear bold letters as a RESIDENT ALIEN. Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. For he did not go to the United States merely to visit his children or his doctor there, he entered the United States with the intention to live there permanently as evidenced by his application for an immigrant's (not a visitor's or tourist's) visa. Based on that application of his, he was issued by the U.S. Government the requisite green card or authority to reside there permanently. 2. ID.; ID.; ID.; "IMMIGRATION" AND "IMMIGRANT", DEFINED. — "Immigration is the removing into one place from another; the act of immigrating, the entering into a country with the intention of residing in it. "An immigrant is a person who removes into a country for the purpose of permanent residence. As shown infra 84, however, statutes sometimes give a broader meaning to the term immigrant.'" (3 CJS 674.) 3. ID.; ID.; ID.; SECTION 68 OF THE OMNIBUS ELECTION CODE (B.P. BLG. 881), APPLICABLE TO THE CASE AT BAR, NOT SECTION 18, ARTICLE IX OF THE1987 CONSTITUTION. — Section 18, Article XI of the 1987 Constitution which provides that "any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law" is not applicable to Merito Miguel for he acquired the status of an immigrant of the United States before he was elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan. The law applicable to him is Section 68 of the Omnibus Election Code (B.P. Blg. 881), which provides: "Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless such person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws." 4. ID.; ID.; ID.; REQUIRED PRIOR WAIVER OF GREEN CARD, CONSTRUED. — To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office" (Sec. 68, Omnibus Election Code). 5. ID.; ID.; ID.; RESIDENCE REQUIREMENT; REASON THEREFOR. — The reason for Section 68 of the Omnibus Election Code is not hard to find Residence in the municipality where he intends to run for elective office for at least one (1) year at the time of filing his certificate of candidacy, is one of the qualifications that a candidate for elective public office must possess (Sec. 42, Chap. 1, Title 2, Local Government Code). Miguel did not possess that qualification because he was a permanent resident of the United States and he resided in Bolinao for a period of only three (3) months (not one year) after his return to the Philippines in November 1987 and before he ran for mayor of that municipality on January 18, 1988. In banning from elective public office Philippine citizens who are permanent residents or immigrants of a foreign country, the Omnibus Election Code has laid down a clear policy of excluding from the right to hold elective public office those Philippine citizens who possess dual loyalties and allegiance. The law has reserved that privilege for its citizens who have

cast their lot with our country "without mental reservations or purpose of evasion." The assumption is that those who are resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for with one eye on their public duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof. 6. ID.; ID.; ID.; WAIVER OF IMMIGRANT STATUS, SHOULD BE AS INDUBITABLE AS THE APPLICATION FOR IT. — Miguel's application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local elections on January 18, 1988, our conclusion is that he was disqualified to run for said public office, hence, his election thereto was null and void.

DECISION

GRIÑO-AQUINO, J p: These two cases were consolidated because they have the same objective; the disqualification under Section 68 of the Omnibus Election Code of the private respondent, Merito Miguel, for the position of municipal mayor of Bolinao, Pangasinan, to which he was elected in the local elections of January 18, 1988, onthe ground that he is a green card holder, hence, a permanent resident of the United States of America, not of Bolinao. LLpr G.R. No. 84508 is a petition for review on certiorari of the decision dated January 13, 1988 of the COMELEC First Division, dismissing the three (3) petitions of Anecito Cascante (SPC No. 87551), Cederico Catabay (SPC No. 87-595) and Josefino C. Celeste (SPC No. 87-604), for the disqualification of Merito C. Miguel, filed prior to the local elections on January 18, 1988. G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petition for review of the decision dated June 21, 1989, of the Court of Appeals in CA-G.R. SP No. 14531 dismissing the petition for quo warranto filed by Mateo Caasi, a rival candidate for the position of municipal mayor of Bolinao, Pangasinan, also to disqualify Merito Miguel on account of his being a green card holder. In his answer to both petitions, Miguel admitted that he holds a green card issued to him by the US Immigration Service, but he denied that he is a permanent resident of the United States. He allegedly obtained the green card for convenience in order that he may freely enter the United States for his periodic medical examination and to visit his children there. He alleged that he is a permanent resident of Bolinao, Pangasinan that he voted in all previouselections, including the plebiscite on February 2, 1987 for the ratification of the 1987 Constitution, and the congressional elections on May 18, 1987. After hearing the consolidated petitions before it, the COMELEC, with the exception of Commissioner Anacleto Badoy, Jr., dismissed the petitions on the ground that: "The possession of a green card by the respondent (Miguel) does not sufficiently establish that he has abandoned his residence in the Philippines. On the contrary, inspite (sic) of his green card, Respondent has sufficiently indicated his intention to continuously reside in Bolinao as shown by his having voted in successive elections in said municipality. As the respondent meets the basic requirements of citizenship and

residence for candidates to elective local officials (sic) as provided for in Section 42 of the Local Government Code, there is no legal obstacle to his candidacy for mayor of Bolinao, Pangasinan." (p. 12, Rollo, G.R. No. 84508) In his dissenting opinion, Commissioner Badoy, Jr. opined that: "A green card holder being a permanent resident of or an immigrant of a foreign country and respondent having admitted that he is a green card holder, it is incumbent upon him, under Section 68 of the Omnibus Election Code, to prove that he 'has waived his status as a permanent resident or immigrant' to be qualified to run for elected office. This respondent has not done." (p. 13, Rollo, G.R. No. 84508.) In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court of Appeals and Merito Miguel, respondents," the petitioner prays for a review of the decision dated June 21, 1989 of the Court of Appeals in CAG.R. SP No. 14531 "Merito C. Miguel, petitioner vs. Hon. Artemio R. Corpus, etc., respondents," reversing the decision of the Regional Trial Court which denied Miguel's motion to dismiss the petition for quo warranto filed by Caasi. The Court of Appeals ordered the regional trial court to dismiss and desist from further proceeding in the quo warranto case. The Court of Appeals held: cdphil

". . . it is pointless for the Regional Trial Court to hear the case questioning the qualification of the petitioner as resident of the Philippines, after theCOMELEC has ruled that the petitioner meets the very basic requirements of citizenship and residence for candidates to elective local officials (sic) and that there is no legal obstacles (sic) for the candidacy of the petitioner, considering that decisions of the Regional Trial Courts on quo warranto cases under the Election Code are appealable to the COMELEC." (p. 22, Rollo, G.R. No. 88831.) These two cases pose the twin issues of: (1) whether or not a green card is proof that the holder is a permanent resident of the United States, and (2) whether respondent Miguel had waived his status as a permanent resident of or immigrant to the U.S.A. prior to the local elections on January 18, 1988. Section 18, Article XI of the 1987 Constitution provides: "Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law." In the same vein, but not quite, Section 68 of the Omnibus Election Code of the Philippines (B.P. Blg. 881) provides: "SEC. 68. Disqualifications . . . Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. (Sec. 25, 1971, EC)." In view of current rumor that a good number of elective and appointive public officials in the present administration of President Corazon C. Aquino are holders of green cards in foreign countries, their effect on the holders' right to hold elective public office in the Philippines is a question that excites much interest in the outcome of this case. dctai In the case of Merito Miguel, the Court deems it significant that in the "Application for Immigrant Visa and Alien Registration" (Optional Form No. 230, Department of State) which Miguel filled up in his own handwriting and submitted to the US Embassy in Manila before his departure for the United

States in 1984, Miguel's answer to Question No. 21 therein regarding his "Length of intended stay (if permanently, so state)," Miguel's answer was, "Permanently." On its face, the green card that was subsequently issued by the United States Department of Justice and Immigration and Registration Service to the respondent Merito C. Miguel identifies him in clear bold letters as a RESIDENT ALIEN. On the back of the card, the upper portion, the following information is printed: "Alien Registration Receipt Card "Person identified by this card is entitled to reside permanently and work in the United States." (Annex A pp. 189-190, Rollo of G.R. No. 84508.) Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. For he did not go to the United States merely to visit his children or his doctor there, he entered the United States with the intention to live there permanently as evidenced by his application for an immigrant's (not a visitor's or tourist's) visa. Based on that application of his, he was issued by the U.S. Government the requisite green card or authority to reside there permanently. cdrep "Immigration is the removing into one place from another; the act of immigrating, the entering into a country with the intention of residing in it. "An immigrant is a person who removes into a country for the purpose of permanent residence. As shown infra 84, however, statutes sometimes give a broader meaning to the term immigrant.'" (3 CJS 674.) As a resident alien in the U.S., Miguel owes temporary and local allegiance to the U.S., the country in which he resides (3 CJS 527). This is in return for the protection given to him during the period of his residence therein. "Aliens residing in the United States, while they are permitted to remain, are in general entitled to the protection of the laws with regard to their rights of person and property and to their civil and criminal responsibility. "In general, aliens residing in the United States, while they are permitted to remain, are entitled to the safeguards of the constitution with regard to their rights of person and property and to their civil and criminal responsibility. Thus resident alien friends are entitled to the benefit of the provision of the Fourteenth Amendment to the federal constitution that no state shall deprive 'any person' of life, liberty, or property without due process of law, or deny to 'any person' the equal protection of the law, and the protection of this amendment extends to the right to earn a livelihood by following the ordinary occupations of life. So an alien is entitled to the protection of the provision of the Fifth Amendment to the federal constitution that no person shall be deprived of life, liberty, or property without due process of law." (3 CJS 529-530.) Section 18, Article XI of the 1987 Constitution which provides that "any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law" is not applicable to Merito Miguel for he acquired the status of an immigrant of the United States before he was elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan. The law applicable to him is Section 68 of the Omnibus Election Code (B.P. Blg. 881), which provides: "xxx xxx xxx "Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless such person has

waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws." cdrep Did Miguel, by returning to the Philippines in November 1987 and presenting himself as a candidate for mayor of Bolinao in the January 18, 1988 localelections, waive his status as a permanent resident or immigrant of the United States? To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office" (Sec. 68, Omnibus Election Code). LLjur Respondent Merito Miguel admits that he holds a green card, which proves that he is a permanent resident or immigrant of the United States, but the records of this case are starkly bare of proof that he had waived his status as such before he ran for election as municipal mayor of Bolinao on January 18, 1988. We, therefore, hold that he was disqualified to become a candidate for that office. The reason for Section 68 of the Omnibus Election Code is not hard to find Residence in the municipality where he intends to run for elective office for at least one (1) year at the time of filing his certificate of candidacy, is one of the qualifications that a candidate for elective public office must possess (Sec. 42, Chap. 1, Title 2, Local Government Code). Miguel did not possess that qualification because he was a permanent resident of the United States and he resided in Bolinao for a period of only three (3) months (not one year) after his return to the Philippines in November 1987 and before he ran for mayor of that municipality on January 18, 1988. In banning from elective public office Philippine citizens who are permanent residents or immigrants of a foreign country, the Omnibus Election Code has laid down a clear policy of excluding from the right to hold elective public office those Philippine citizens who possess dual loyalties and allegiance. The law has reserved that privilege for its citizens who have cast their lot with our country "without mental reservations or purpose of evasion." The assumption is that those who are resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for with one eyeon their public duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof. Miguel insists that even though he applied for immigration and permanent residence in the United States, he never really intended to live there permanently, for all that he wanted was a green card to enable him to come and go to the U.S. with ease. In other words, he would have this Court believe that he applied for immigration to the U.S. under false pretenses; that all this time he only had one foot in the United States but kept his other foot in the Philippines. Even if that were true, this Court will not allow itself to be a party to his duplicity by permitting him to benefit from it, and giving him the best of both worlds so to speak. Miguel's application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local elections on January 18, 1988, our conclusion is that he was disqualified to run for said public office, hence, his election thereto was null and void. LLjur

WHEREFORE, the appealed orders of the COMELEC and the Court of Appeals in SPC Nos. 87-551, 87-595 and 87-604, and CA-G.R. SP No. 14531 respectively, are hereby set aside. The election of respondent Merito C. Miguel as municipal mayor of Bolinao, Pangasinan is hereby annulled. Costs against the said respondent. SO ORDERED. ||| (Caasi v. Court of Appeals, G.R. No. 88831, 84508, [November 8, 1990], 269 PHIL 237-247) [G.R. No. 119976. September 18, 1995.] IMELDA MARCOS, petitioner, vs. COMMISSION ON ELECTIONS and MONTEJO, respondents.

ROMUALDEZCIRILO ROY

Estelito P. Mendoza for petitioner. The Solicitor General for public respondent. Paquito N . Ochoa, Jr. and Gracelda N . Andres for private respondent. SYLLABUS 1. CIVIL LAW; DOMICILE; CONSTRUED. — 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 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." 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. 2. ID.; ID.; RESIDENCE, CONSTRUED. — 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. 3. ID.; ID.; DIFFERENTIATED FROM RESIDENCE. — 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. 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. 4. POLITICAL LAW; ELECTIONS; RESIDENCE USED SYNONYMOUSLY WITH 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. 5. ID.; ID.; ID.; ABSENCE FROM PERMANENT RESIDENCE WITHOUT INTENTION TO ABANDON IT DOES NOT RESULT IN LOSS OR CHANGE OF DOMICILE. — 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 theConstitution speaks of "residence" in election law, it actually means only "domicile." 6. ID.; ID.; ID.; FACT OF RESIDENCE, NOT STATEMENT IN CERTIFICATE OF CANDIDACY, DECISIVE FACTOR IN DETERMINING RESIDENCY QUALIFICATION REQUIREMENT. — It is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining whether or not an individual has satisfied the 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. cdlex 7. ID.; ID.; ID.; ID.; CASE AT BAR. — It stands to reason therefore, that petitioner merely committed an honest mistake in jotting down 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 was 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. 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. cdll 8. ID.; ID.; ID.; ABSENCE FROM LEGAL RESIDENCE OR DOMICILE OF A TEMPORARY OR SEMI-PERMANENT NATURE DOES NOT CONSTITUTE LOSS OF RESIDENCE. — 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. 9. CIVIL LAW; DOMICILE; A MINOR FOLLOWS THE DOMICILE OF HIS PARENTS; CASE AT BENCH. — A 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. 10. ID.; ID.; REQUISITES TO EFFECT CHANGE OF DOMICILE. — Domicile of origin is not easily lost. To successfully effect a change of domicile, one must demonstrate: 1. An actual removal or an actual change of domicile; 2. A bona fide intention of abandoning the former place of residence and establishing a new one; and 3. Acts which correspond with the purpose. 11. ID.; ID.; ID.; CASE AT BENCH. — 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. 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). 12. ID.; ID.; ID.; MARRIAGE, NOT A CAUSE FOR LOSS OF DOMICILE. — 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 1954. For there is a clearly established distinction between the Civil Code concepts of "domicile" and "residence." The presumption that the wife automatically gains the husband's domicile by operation of law upon marriage cannot be inferred from the use of the term "residence" in Article 110 of the Civil Code because the Civil Code is one area where the two concepts are well delineated. 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: La mujer esta obligada a seguir a su marido donde quiera que fije su residencia. Los Tribunales, sin embargo, podran con justa causa eximirla de esta obligacion cuando el marido transende su residencia a ultramar o' a pais extranjero. Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article, which means wherever (the husband) wishes to establish residence. This part of the article clearly contemplates only actual residence because it refers to a positive act of fixing a family home or residence. Moreover, this interpretation is further strengthened by the phrase "cuando el marido translade su residencia" in the same provision which means, "when the husband shall transfer his residence," referring to another positive act of relocating the family to another home or place of actual residence. The article obviously cannot be understood to refer to domicile which is a fixed, fairly-permanent concept when it plainly connotes the possibility of transferring from one place to another not only once, but as often as the husband may deem fit to move his family, a circumstance more consistent with the concept of actual residence. 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. 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 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. 13. ID.; ID.; TERM RESIDENCE REFERS TO "ACTUAL RESIDENCE." — 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. 14. STATUTORY CONSTRUCTION; STATUTE REQUIRING RENDITION OF JUDGMENT WITHIN SPECIFIED TIME, MERELY DIRECTORY. — It is a settled doctrine that a statute requiring rendition of judgment within a specified time is generally construed to be merely directory, "so that non-compliance with them does not invalidate the judgment on the theory that if the statute had intended such result it would have clearly indicated it." The difference between a mandatory and a directory provision is often made on grounds of necessity. 15. CONSTITUTIONAL LAW; COMELEC; JURISDICTION TO DECIDE PENDING DISQUALIFICATION CASE NOT LOST BY HOLDING OF ELECTIONS. — With the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78 of B.P. 881, it is evident that the respondent Commission does not lose jurisdiction to hear and decide a pending disqualification case under Section 78 of B.P. 881 even after the elections. 16. ID.; LEGISLATURE; HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET); SOLE JUDGE OF ALL CONTESTS RELATING TO ELECTIONS, RETURNS AND QUALIFICATIONS OF MEMBERS OF CONGRESS; CANDIDATE MUST HAVE BEEN PROCLAIMED. — As to the House of Representatives Electoral Tribunal's supposed assumption of jurisdiction over the issue of petitioner's qualifications after the May 8, 1995 elections, suffice it to say that HRET's jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of members of Congress begins only after a candidate has become a member of the House of Representatives. 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. PUNO, J ., concurring opinion: 1. CIVIL LAW; DOMICILE; DOMICILE OF ORIGIN AND DOMICILE OF CHOICE; ESTABLISHED BY CANDIDATE'S CONTINUED STAY IN HER PARENT'S RESIDENCE. — 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. Justice Puno considers 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. 2. ID.; ID.; DOMICILE BY OPERATION OF LAW; ACQUIRED BY MARRIAGE AND DELIBERATE CHOICE OF A DIFFERENT DOMICILE BY THE HUSBAND. — 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. 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. Justice Puno respectfully submits 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. 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. prLL 3. ID.; ID.; ID.; CASE AT BENCH. — 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." 4. ID.; ID.; ID.; PRINCIPLE THAT AFTER THE HUSBAND'S DEATH, WIFE RETAINS LAST DOMICILE OF HER HUSBAND, SHOULD NOW BE ABANDONED. — 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. 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. 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 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. The rulings relied upon by Mr. Justice Davide in CJS and AM JUR 2d are American state court decisions handed down between the years 1917 and 1938, or before the time when women were accorded equality of rights with men. Undeniably, the women's liberation movement resulted in far-ranging state legislations in the United States to eliminate gender inequality. 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. 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." 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. 5. ID.; ID.; ID.; WIFE REACQUIRED DOMICILE OF ORIGIN UPON DEATH OF HUSBAND. — Prescinding from these premises, Justice Puno respectfully submits 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, Justice Puno 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. Llibris 6. ID.; ID.; ID.; ID.; DELIBERATE CHOICE BY WIFE MANIFEST IN CASE AT BAR. — 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 among others that: "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. 7. POLITICAL LAW; ELECTIONS; CERTIFICATE OF CANDIDACY; AMENDMENT TO CORRECT A BONA FIDE MISTAKE, ALLOWED AS A MATTER OF RIGHT. — 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. (Alialy v. COMELEC , 2 SCRA 957, 960 [1961]; Canceran v. COMELEC , 107 Phil. 607 [1960]; Gabaldon v. COMELEC , 99 Phil. 898 [1956]) 8. CONSTITUTIONAL LAW; FREEDOM FROM HARASSMENT AND DISCRIMINATION OF BONA FIDE CANDIDATES FOR PUBLIC OFFICE; RIGHT VIOLATED BY LEGAL AND EXTRA-LEGAL OBSTACLES AGAINST CANDIDATE TO PREVENT HER FROM RUNNING. — Section 10, Article IX-C of theConstitution mandates that "bona fide candidates for any public office shall be free from any form of harassment and discrimination." A detached reading of the records of the case at bench will show that all forms of legal and extra-legal obstacles have been thrown against petitioner to prevent her from running as the people's representative in the First District of Leyte. In petitioner's Answer to the petition to disqualify her, she averred 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 (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. 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. 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. 9. POLITICAL LAW; ELECTIONS; ONE YEAR RESIDENCY REQUIREMENT; RATIONALE; CANDIDATE'S LIFETIME CONTACTS WITH FIRST DISTRICT OF LEYTE SATISFIES INTENT. — In Gallego v. Vera, we explained that the reason for this residence requirement is "to exclude a stranger or newcomer, unacquainted with the conditions and needs of a community and not identified with the latter, from an elective office to serve that community. . . ." Petitioner's lifetime contacts with the First District of Leyte cannot be contested. Nobody can claim that she is not acquainted with its problems because she is a stranger to the place. None can argue she cannot satisfy the intent of the Constitution. 10. ID.; ID.; ELECTION CASES; DOMINANT CONSIDERATION IN RESOLUTION THEREOF IS THE NEED TO EFFECTUATE WILL OF THE ELECTORATE. — 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. FRANCISCO, J ., concurring opinion: 1. CIVIL LAW; DOMICILE; DEFINED. — 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) 2. ID.; ID.; CLASSIFICATIONS. — 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). 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). 3. ID.; ID.; CHANGE OF DOMICILE; REQUISITES. — 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 oranimus 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). 4. POLITICAL LAW; ELECTIONS; RESIDENCE SYNONYMOUS WITH DOMICILE. — 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). 5. ID.; ID.; ID.; NOT ABANDONED OR LOST BY REGISTRATION OF VOTER IN A PLACE OTHER THAN HIS PLACE OF ORIGIN. — 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. 6. ID.; ID.; ID.; MARITAL DOMICILE; LOST UPON DEATH OF HUSBAND; WIFE REVERTED TO HER ORIGINAL DOMICILE; CASE AT BAR. — 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. 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 onto 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. 7. ID.; ID.; ID.; PARTY CLAIMING THAT A PERSON HAS ABANDONED OR LOST HIS RESIDENCE OF ORIGIN MUST SHOW AND PROVE SUCH LOSS OR ABANDONMENT. — 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. 8. ID.; ID.; ID.; ONE-YEAR RESIDENCE REQUIREMENT; REQUIREMENT MET IN CASE AT BENCH. — 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. 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 certificate and resided with her brother in San Jose. She resided in San Jose, Tacloban City until August of 1994 when she was allowed by the PCGG to move and reside in her sequestered residential house in Olot, Tolosa, Leyte. 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. 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. PADILLA, J ., dissenting opinion: 1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; COMELEC DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN DISQUALIFYING CANDIDATE FOR FAILURE TO COMPLY WITH THE ONE YEAR RESIDENCE QUALIFICATION. — 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. Petitioner's 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)." 2. POLITICAL LAW; ELECTIONS; DISQUALIFICATION; CANDIDATE WHO OBTAINED THE SECOND HIGHEST NUMBER OF VOTES CAN NOT BE DECLARED WINNER OF ELECTIVE OFFICE WHERE CANDIDATE WHO OBTAINED THE HIGHEST NUMBER OF VOTES IS DECLARED DISQUALIFIED OR NOT ELIGIBLE FOR OFFICE. — 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. (Labo vs. Comelec, G.R. 86564, August 1, 1989, 176 SCRA 1) 3. ID.; ID.; REPUBLIC ACT NO. 6646 (AN ACT INTRODUCING REFORMS IN THE ELECTORAL SYSTEM AND FOR OTHER PURPOSES); VOTES CAST FOR A CANDIDATE DECLARED DISQUALIFIED BY FINAL JUDGMENT SHALL NOT BE COUNTED; CANDIDATE WHO OBTAINED THE SECOND HIGHEST NUMBER OF VOTES WHERE THE WINNING CANDIDATE IS DECLARED DISQUALIFIED DEEMED THE WINNER. — Under Sec. 6 of 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. 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 Commissionon Elections 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. 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. REGALADO, J ., dissenting opinion: 1. CIVIL LAW; DOMICILE; DOMICILE OF ORIGIN; CONSTRUED. — 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. 2. ID.; ID.; KINDS. — 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 proprio motu; the last which is consequential, as that of a wife arising from marriage, is sometimes called domicilium necesarium. 3. ID.; ID.; DOMICILE BY OPERATION OF LAW; ACQUIRED BY MARRIAGE. — When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law, not only international or American but of our own enactment, she acquired her husband's domicile of origin in Batac, Ilocos Norte and correspondingly lost her own domicile of origin in Tacloban City. 4. ID.; ID.; REQUISITES FOR CHANGE OF DOMICILE. — 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. 5. ID.; ID.; ONCE LOST CAN BE RECOVERED IN ACCORDANCE WITH LAW; NO AUTOMATIC REVERSION OR REACQUISITION OF DOMICILE. — 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. 6. ID.; ID.; VOLUNTARY ABANDONMENT OF DOMICILE DOES NOT AUTOMATICALLY RESTORE DOMICILE OF ORIGIN. — 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. 7. ID.; ID.; ID.; CASE AT BAR. — 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 byoperation 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. LexLibris 8. ID.; ID.; DOMICILE BY OPERATION OF LAW; AFTER THE HUSBAND'S DEATH, THE WIFE HAS THE RIGHT TO ELECT HER OWN DOMICILE. — The American rule is likewise to the effect that while after the husband's death the wife has the right to elect her own domicile, she nevertheless retains the last domicile of her deceased husband until she makes an actual change. In the absence of affirmative evidence, to the contrary, the presumption is that a wife's domicile or legal residence follows that of her husband and will continue after his death. 9. ID.; FAMILY CODE; RIGHT AND POWER TO FIX FAMILY HOME CAN NOT AFFECT DOMICILE FIXED BY LAW. — I cannot appreciate the premises advanced in support of the majority's theory based on Articles 68 and 69 of the Family Code. All that is of any relevance therein is that under this new code, the right and power to fix the family domicile is now shared by the spouses. I cannot perceive how that joint right, which in the first place was never exercised by the spouses, could affect the domicile fixed by the law for petitioner in 1954 and, for her husband, long prior thereto. It is true that a wife now has the coordinate power to determine the conjugal or family domicile, but that has no bearing on this case. With the death of her husband, and each of her children having gotten married and established their own respective domiciles, the exercise of that joint power was and is no longer called for or material in the present factual setting of this controversy. Instead, what is of concern in petitioner's case was the matter of her having acquired or not her own domicile of choice. 10. POLITICAL LAW; ELECTIONS; ONE YEAR RESIDENCY REQUIREMENT; NOT MET BY CANDIDATE'S RESIDENCY FOR SEVEN (7) MONTHS IMMEDIATELY PRECEDING ELECTION; PREVIOUS RESIDENCY AT DOMICILE OF ORIGIN NOT COUNTED WHERE THE SAME WAS LOST DUE TO MARRIAGE AND NOT REACQUIRED AFTER HUSBAND'S DEATH. — 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. DAVIDE, JR., J ., dissenting opinion: 1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; PROPER REMEDY FROM A DECISION, ORDER OR RULING OF THE COMELEC. — 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]). 2. ID.; ID.; ID.; ID.; WRIT OF CERTIORARI; MAY BE GRANTED ONLY IN ABSENCE OR EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION. — 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). 3. ID.; ID.; ID.; ID.; ID.; ID.; CASE AT BENCH, NOT A CASE FOR ISSUANCE OF WRIT. — 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. 4. POLITICAL LAW; ELECTIONS; DOMICILE; LOSS OR ABANDONMENT THEREOF IN CASE AT BAR. — 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. 5. ID.; ID.; ID.; DOMICILE OF CHOICE LOST BY OPERATION OF LAW BY MARRIAGE. — 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. 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). 6. CIVIL LAW; FAMILY CODE; FAMILY DOMICILE; FIXING THEREOF, A JOINT DECISION OF SPOUSES. — 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). 7. ID.; DOMICILE, DOMICILE BY OPERATION OF LAW; DEATH OF HUSBAND REVIVES POWER OF WIFE TO ACQUIRE HER OWN DOMICILE; NO AUTOMATIC RESTORATION OF WOMAN'S DOMICILE OF ORIGIN. — 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. 8. ID.; ID.; LOSS OF DOMICILE; MARRIAGE, NOT A GROUND. — 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 onSection 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. 9. ID.; ID.; ABANDONMENT THEREOF IN CASE AT BENCH. — This Court should not accept as gospel truth the self-serving claim of the petitioner in her affidavit 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). aisadc 10. REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY; SELF-SERVING STATEMENT, WITHOUT PROBATIVE VALUE. — 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. 11. ID.; ID.; BURDEN OF PROOF; ONE WHO ASSERTS A FACT HAS THE BURDEN OF PROVING IT. — 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. cdlex ROMERO, J ., separate opinion:

POLITICAL LAW; ELECTIONS; RESIDENCE; DOMICILE BY OPERATION OF LAW; WIDOW NO LONGER BOUND BY THE DOMICILE OF THE DEPARTED HUSBAND; WIDOW MAY CHOOSE DOMICILE; ONE YEAR RESIDENCE REQUIREMENT, MET IN CASE AT BAR. — 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. 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. VITUG, J., separate opinion: 1. CONSTITUTIONAL LAW; CONSTITUTIONAL PROVISIONS, GENERALLY MANDATORY IN CHARACTER. — 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). 2. ID.; COMELEC; WITH JURISDICTION OVER PRE-PROCLAMATION CONTROVERSIES. — The Commission on Elections (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 candidatesto 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). 3. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT ON THE OBSERVANCE OF ONEYEAR RESIDENCY REQUIREMENT OF THE COMELEC, GENERALLY UPHELD ON APPEAL. — The matter before us specifically calls for the observance of the constitutional one-year residency requirement. This issue (whether or not there is here such compliance), to my mind, is basically a question of fact or at least inextricably linked to such determination. The findings and judgment of the COMELEC, in accordance with the long established rule and subject only to a number of exceptions under the basic heading of "grave abuse of discretion," are not reviewable by this Court. 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. 4. CIVIL LAW; DOMICILE; PLACE OF HABITUAL RESIDENCE. — 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). 5. POLITICAL LAW; ELECTIONS; DOMICILE SYNONYMOUS WITH RESIDENCE. — 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. . . . (Romualdez vs. Regional Trial Court, Branch 7,Tacloban City [226 SCRA 408, 409]) 6. ID.; ID.; ID.; ELEMENTS FOR CHANGE OF DOMICILE. — 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. 7. CONSTITUTIONAL LAW; COMELEC; ITS JURISDICTION ENDS WHEN JURISDICTION OF ELECTORAL TRIBUNAL BEGINS. — 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. LexLibris 8. ID.; ID.; PROCLAMATION OF CANDIDATE, NOT A MINISTERIAL FUNCTION. — 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. 9. POLITICAL LAW; ELECTIONS; CANDIDATE WHO OBTAINED THE SECOND HIGHEST NUMBER OF VOTES NOT NECESSARILY ENTITLED TO BE DECLARED WINNER OF ELECTIVE OFFICE WHERE CANDIDATE WHO OBTAINED THE HIGHEST NUMBER OF VOTES IS LATER DECLARED DISQUALIFIED OR NOT ELIGIBLE. — 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. 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). MENDOZA, J., separate opinion: 1. CONSTITUTIONAL LAW; COMELEC; WITHOUT POWER TO DISQUALIFY CANDIDATE FOR LACK OF ELIGIBILITY. — 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. 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. cdll 2. POLITICAL LAW; ELECTION LAWS; ABSENCE OF PROVISION FOR PREPROCLAMATION CONTEST BASED ON INELIGIBILITY. — 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 preproclamation contests but only election protests or quo warranto proceedings against winning candidates. 3. ID.; ID.; ID.; REASONS. — 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. 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. Third is the policy underlying the prohibition against preproclamation cases inelections 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, returnsand 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. 4. ID.; ID.; PETITION TO DISQUALIFY CANDIDATE FOR INELIGIBILITY FALLS WITHIN THE JURISDICTION OF ELECTORAL TRIBUNAL. — Montejo's petition before the COMELEC was 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. 5. REMEDIAL LAW; SUPREME COURT; QUO WARRANTO; QUALIFICATION OF CANDIDATE PASSED UPON ONLY AFTER PROCLAMATION OF CANDIDATE. — 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, age, or residence. But in the generality of cases in which this Court passed upon the qualifications of respondents for office, this Court did so in the context of election protests orquo warranto proceedings filed after the proclamation of the respondents or protestees as winners.

6. POLITICAL LAW; ELECTIONS; ABSENCE OF PROVISION FOR PREPROCLAMATION CONTESTS BASED ON INELIGIBILITY; CANNOT BE SUPPLIED BY A MERE RULE OF THE COMELEC. — 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]) 7. ID.; ID.; DISQUALIFICATION PROCEEDINGS DIFFERENTIATED FROM DECLARATION OF INELIGIBILITY. — The assimilation in Rule 25 of theCOMELEC 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 Sections 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. 8. ID.; ID.; POSSESSION OF QUALIFICATIONS FOR PUBLIC OFFICE DOES NOT IMPLY THAT CANDIDATE IS NOT DISQUALIFIED. — 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. 9. ID.; ID.; DISQUALIFICATION PROCEEDINGS BASED ON INELIGIBILITY; ELECTION PROTEST OR ACTION FOR QUO WARRANTO, PROPER REMEDY. — 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. 10. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; COMELEC WITHOUT JURISDICTION TO ASSUME DISQUALIFICATION OF CANDIDATE BASED ON INELIGIBILITY. — For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95009; 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 onElections in SPA No. 95-009, including its questioned orders dated 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 be considered void. LLjur

DECISION

KAPUNAN, J p: A constitutional provision should be construed as to give it effective operation and suppress the mischief at which it is aimed. 1 The 1987 Constitution mandates that an aspirant for election to the House of Representatives be "a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the election." 2 The mischief which this provision — reproduced verbatim from the 1973 Constitution — seeks to prevent is the possibility of a "stranger or newcomer unacquainted with the conditions and needs of a community and not identified with the latter, from an elective office to serve that community." 3 Petitioner, Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of Representative of the First District of Leyte with the Provincial Election Supervisor on March 8, 1995, providing the following information in item no. 8: 4 RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION: ______ Years and seven Months. On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the First District of Leyte and a candidate for the same position, filed a "Petition for Cancellation and Disqualification" 5 with the Commission on Elections alleging that petitioner did not meet the constitutional requirement for residency. In his petition, private respondent contended that Mrs. Marcos lacked the Constitution's one year residency requirement for candidates to the House of representatives on the evidence of declarations made by her in Voter Registration Record 94No. 3349772 6 and in her Certificate of Candidacy. He prayed that "an order be issued declaring (petitioner) disqualified and canceling the certificate of candidacy." 7 On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy, changing the entry "seven" months to "since childhood" in item no. 8 of the amended certificate. 8 On the same day, the Provincial Election Supervisor of Leyte informed petitioner that: [T]his office cannot receive or accept the aforementioned Certificate of Candidacy on the ground that it is filed out of time, the deadline for the filing of the same having already lapsed on March 20, 1995. The Corrected/Amended Certificate of Candidacy should have been filed on or before the March 20, 1995 deadline. 9 Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with the COMELEC's Head Office in Intramuros, Manila on March 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was likewise filed with the head office on the same day. In said Answer, petitioner averred that the entry of the word "seven" in her original Certificate of Candidacy was the result of an "honest misinterpretation" 10 which she sought to rectify by adding the words "since childhood" in her Amended/Corrected Certificate of Candidacy and that "she has always maintained Tacloban City as her domicile or residence." 11 Impugning respondent's motive in filing the petition seeking her disqualification, she noted that: When respondent (petitioner herein,) announced that she was intending to register as a voter in Tacloban City and run for Congress in the First District of Leyte, petitioner

immediately opposed her intended registration by writing a letter stating that "she is not a resident of said city but of Barangay Olot, Tolosa, Leyte. After respondent had registered as a voter in Tolosa following completion of her six month actual residence therein, petitioner filed a petition with the COMELEC to transfer the town of Tolosa from the First District to the Second District and pursued such a move up to the Supreme Court, his purpose being to remove respondent as petitioner's opponent in the congressional election in the First District. He also filed a bill, along with other Leyte Congressmen, seeking the creation of another legislative district to remove the town of Tolosa out of the First District, to achieve his purpose. However, such bill did not pass the Senate. Having failed on such moves, petitioner now filed the instant petition for the same objective, as it is obvious that he is afraid to submit along with respondent for the judgment and verdict of the electorate of the First District of Leyte in an honest, orderly, peaceful, free and clean elections on May 8, 1995. 12 On April 24, 1995, the Second Division of the Commission on Elections (COMELEC), by a vote of 2 to 1, 13 came up with a Resolution 1) finding private respondent's Petition for Disqualification in SPA 95-009 meritorious; 2) striking off petitioner's Corrected/Amended Certificate of Candidacy of March 31, 1995; and 3) canceling her original Certificate 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 'Residencyin the CONSTITUENCY where I seek to be elected immediately preceding the election.' Thus, the explanation of respondent fails to be persuasive. prLL

From the foregoing, respondent's defense of an honest mistake or misinterpretation, therefore, is devoid of merit. To further buttress respondent's contention that an amendment may be made, she cited the case of Alialy v. COMELEC (2 SCRA 957). The reliance of respondent on the case of Alialy is misplaced. The case only applies to the 'inconsequential deviations which cannot affect the result of the election, or deviations from provisions intended primarily to secure timely and orderly conduct of elections.' The Supreme Court in that case considered the amendment only as a matter of form. But in the instant case, the amendment cannot be considered as a matter of form or an inconsequential deviation. The change in the number of years of residence in the place where respondent seeks to be elected is a substantial matter which determines her qualification as a candidacy, specially those intended to suppress, accurate material representation in the original certificate which adversely affects the filer. To admit the amended certificate is to condone the evils brought by the shifting minds of manipulating candidate, to 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 onserved 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 a several occasions declared that she was a resident of Manila. Although she spent her school days in Tacloban, she is considered to have abandoned such place when she chose to stay and reside in other different places. In the case of Romualdez vs. RTC (226 SCRA 408) the Court explained how one acquires a new domicile by choice. There must concur: (1) residence or bodily presence in the new locality; (2) intention to remain there; and (3) intention to abandon the old domicile. In other words there must basically be animus manendi with animus non revertendi. When respondent chose to stay in Ilocos and later on in Manila, coupled with her intention to stay there by registering as a voter there and expressly declaring that she is a resident of that place, she is deemed to have abandoned Tacloban City, where she spent her childhood and school days, as her place of domicile. Pure intention to reside in that place is not sufficient, there must likewise be conduct indicative of such intention. Respondent's statements to the effect that she has always intended to return to Tacloban, without the accompanying conduct to prove that intention, is not conclusive of her choice of residence. Respondent has not presented any evidence to show that her conduct, one year prior the election, showed intention to reside in Tacloban. Worse, what was evident was that prior to her residence in Tolosa, she had been a resident of Manila. It is evident from these circumstances that she was not a resident of the First District of Leyte "since childhood." To further support the assertion that she could have not been a resident of the First District of Leyte for more than one year, petitioner correctly pointed out that on January 28, 1995; respondent registered as a voter at precinct No. 18-A of Olot, Tolosa, Leyte. In doing so, she placed in her Voter Registration Record that she resided in the municipality of Tolosa for a period of six months. This may be inconsequential as argued by the respondent since it refers only to her residence in Tolosa, Leyte. But her failure to prove that she was a resident of the First District of Leyte prior to her residence in Tolosa leaves nothing but a convincing proof that she had been a resident of the district for six months only." 15

In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en banc denied petitioner's Motion for Reconsideration 16 of the April 24, 1995 Resolution declaring her not qualified to run for the position of Member of the House of Representatives for the First Legislative District of Leyte. 17 The Resolution tersely stated: After deliberating on the Motion for Reconsideration, the Commission RESOLVED to DENY it, no new substantial matters having been raised therein to warrant reexamination 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. LLcd On account of the Resolutions disqualifying petitioner from running for the congressional seat of the First District of Leyte and the public respondent's Resolution suspending her proclamation, petitioner comes to this court for relief. Petitioner raises several issues in her Original and Supplemental Petitions. The principal issues may be classified into two general areas: I. The Issue of Petitioner's qualifications Whether or not petitioner was a resident, for election purposes, of the First District of Leyte for a period of one year at the time of the May 8, 1995elections. II. The Jurisdictional Issue a) Prior to the elections Whether or not the COMELEC properly exercised its jurisdiction in disqualifying petitioner outside the period mandated by the Omnibus Election Code for disqualification cases under Article 78 of the said Code. b) After the Elections Whether or not the House of Representatives Electoral Tribunal assumed exclusive jurisdiction over the question of petitioner's qualifications after the May 8, 1995 elections. I. Petitioner's qualification A perusal of the Resolution of the COMELEC's Second Division reveals a startling confusion in the application of settled concepts of "Domicile" and "Residence" in election law. While the COMELEC seems to be in agreement with the general proposition that for the purposes of election law, residence is synonymous with domicile, the Resolution reveals a tendency to substitute or mistake the concept of domicile for actual residence, a conception not intended for the purpose of determining a candidate's qualifications for election to the House of Representatives as required by the 1987 Constitution. As it were, residence, for the purpose of meeting the qualification for an elective position, has a settled meaning in our jurisdiction.

Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is their place of habitual residence." In Ong vs. Republic 20 this court took the concept of domicile to mean an individual's "permanent home", "a place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent." 21 Based on the foregoing, domicile includes the twin elements of "the fact of residing or physical presence in a fixed place" and animus manendi, or the intention of returning there permanently. Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a given area, community or country. The essential distinction between residence and domicile in law is that residence involves the intent to leave when the purpose for which the resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a person's intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established it is residence. 22 It is thus, quite perfectly normal for an individual to have different residences in various places. However, a person can only have a single domicile, unless, for various reasons, he successfully abandons his domicile in favor of another domicile of choice. In Uytengsu vs. Republic, 23 we laid this distinction quite clearly: "There is a difference between domicile and residence. 'Residence' is used to indicate a place of abode, whether permanent or temporary; 'domicile' denotes a fixed permanent residence to which, when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for the same purpose at any time, but he may have numerous places of residence. His place of residence is generally his place of domicile, but it is not by any means necessarily so since no length of residence without intention of remaining will constitute domicile." For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with domicile. In Nuval vs. Guray, 24 the Court held that "the term residence . . . is synonymous with domicile which imports not only intention to reside in a fixed place, but also personal presence in that place, coupled with conduct indicative of such intention." 25 Larena vs. Teves 26 reiterated the same doctrine in a case involving the qualifications of the respondent therein to 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 an individual has satisfied the constitution's residency qualification requirement. The said statement becomes material only when there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. It would be plainly ridiculous for a candidate to deliberately and knowingly make a statement in a certificate of candidacy which would lead to his or her disqualification. It stands to reason therefore, that petitioner merely committed an honest mistake in jotting down 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 was 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 actual residence in a space which required 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. dctai 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 registered 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 semipermanent nature does not constitute loss of residence. Thus, the assertion by the COMELEC that "she could not have been a resident of Tacloban City since childhood up to the time she filed her certificate of candidacy because she became a resident of many places" flies in the face of settled jurisprudence in which this Court carefully made distinctions between (actual) residence and domicile for election law purposes. In Larena vs. Teves, 33 supra, we stressed: [T]his court is of the opinion and so holds that a person who has his own house wherein he lives with his family in a municipality without having ever had the intention of abandoning it, and without having lived either alone or with his family in another municipality, has his residence in the former municipality, notwithstanding his having registered as an elector in the other municipality in question and having been a candidate for various insular and provincial positions, stating every time that he is a resident of the latter municipality. More significantly, in Faypon vs. Quirino, 34 we explained that: A citizen may leave the place of his birth to look for "greener pastures," as the saying goes, to improve his lot, and that, of course includes study in other places, practice of his avocation, or engaging in business. When an election is to be held, the citizen who left his birthplace to improve his lot may desire to return to his native town to cast his ballot but for professional or business reasons, or for any other reason, he may not absent himself from his professional or business activities; so there he registers himself as voter as he has the qualifications to be one and is not willing to give up or lose the opportunity to choose the officials who are to run the government especially in

national elections. Despite such registration, the animus revertendi to his home, to his domicile or residence of origin has not forsaken him. This may be the explanation why the registration of a voter in a place other than his residence of origin has not been deemed sufficient to constitute abandonment or loss of such residence. It finds justification in the natural desire and longing of every person to return to his place of birth. This strong feeling of attachment to the place of one's birth must be overcome by positive proof of abandonment for another. From the foregoing, it can be concluded that in its above-cited statements supporting its proposition that petitioner was ineligible to run for the position of Representative of the First District of Leyte, the COMELEC was obviously referring to petitioner's various places of (actual) residence, not her domicile. In doing so, it not only ignored settled jurisprudence on residence in election law and the deliberations of the constitutional commission but also the provisions of the Omnibus Election Code (B.P. 881). 35 What is undeniable, however, are the following set of facts which establish the fact of petitioner's domicile, which we lift verbatim from theCOMELEC'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 Malacañang 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 past 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) reestablish her domicile in said place by merely expressing her intention to live there again." We do not agree. First, a 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 she reached the age of eight years old, 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 1954. For there is a clearly established distinction between the Civil Code concepts of "domicile" and "residence." 39The 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: ARTICLE 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: LexLib

La mujer esta obligada a seguir a su marido donde quiera que fije su residencia. Los Tribunales, sin embargo, podran con justa causa eximirla de esta obligacion cuando el marido transende su residencia a ultramar o' a pais extranjero. Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article, which means wherever (the husband) wishes to establish residence. This part of the article clearly contemplates only actual residence because it refers to a positive act of fixing a family home or residence. Moreover, this interpretation is further strengthened by the phrase "cuando el marido translade su residencia" in the same provision which means, "when the husband shall transfer his residence," referring to another positive act of relocating the family to another home or place of actual residence. The article obviously cannot be understood to refer to domicile which is a fixed, fairly-permanent concept when it plainly connotes the possibility of transferring from one place to another not only once, but as often as the husband may deem fit to move his family, a circumstance more consistent with the concept of actual residence. The right of the husband to fix the actual residence is in harmony with the intention of the law to strengthen and unify the family, recognizing the fact that the husband and the wife bring into the marriage different domiciles (of origin). This difference could, for the sake of family unity, be reconciled only by allowing the husband to fix a single place of actual residence. Very significantly, Article 110 of the Civil Code is found under Title V under the heading: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately preceding Article 110 is Article 109 which obliges the husband and wife to live together, thus: ARTICLE 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 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 a place; on the other hand, domicile can exist without actually living in the place. The important thing for domicile is that, once residence has been established in one place, there be an intention to stay there permanently, even if residence is also established in some other place. 41 In fact, even the matter of a common residence between the husband and the wife during the marriage is not an iron-clad principle. In cases applying the Civil Code on the question of a common matrimonial residence, our jurisprudence has recognized certain situations 42 where the spouses could not be compelled to live with each other such that the wife is either allowed to maintain a residence different from that of her husband or, for obviously practical reasons, revert

to her original domicile (apart from being allowed to opt for a new one). In De la Vina vs. Villareal 43 this Court held that "[a] married woman may acquire a residence or domicile separate from that of her husband during the existence of the marriage where the husband has given cause for divorce." 44 Note that the Court allowed the wife either to obtain new residence or to choose a new domicile in such an event. In instances where the wife actually opts, under the Civil Code, to live separately from her husband either by taking new residence or reverting to her domicile of origin, the Court has held that the wife could not be compelled to live with her husband on pain of contempt. In Arroyo vs. Vasques de Arroyo 45 the Court held that: Upon examination of the authorities, we are convinced that it is not within the province of the courts at 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 the 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 vs. 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. aisadc 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 necesarium. Even assuming for the sake of argument that petitioner gained a new "domicile" after her marriage and only acquired a right to choose a new one after her husband died, petitioner's acts following her return to the country clearly indicate that she not only impliedly but expressly chose her domicile of origin (assuming this was lost by operation of law) as her domicile. This "choice" was unequivocally expressed in her letters to the Chairman of the PCGG when petitioner sought the PCGG's permission to "rehabilitate (our) ancestral house in Tacloban and Farm in Olot, Leyte . . . to make them livable for the Marcos family to have a home in our homeland." 47 Furthermore, petitioner obtained her residence certificate in 1992 in Tacloban, Leyte, while living in her brother's house, an act which supports the domiciliary intention clearly manifested in her letters to the PCGG Chairman. She could not have gone straight to her home in San Juan, as it was in a state of disrepair, having been previously looted by vandals. Her "homes" and "residences" following her arrival in various parts of Metro Manila merely qualified as temporary or "actual residences," not domicile. Moreover, and proceeding from our discussion pointing out specific situations where the female spouse either reverts to her domicile of origin or chooses a new one during the subsistence of the marriage, it would be highly illogical for us to assume that she cannot regain her original domicile upon the death of her husband absent a positive act of selecting a new one where situations exist within the subsistence of the marriage itself where the wife gains a domicile different from her husband. In the light of all the principles relating to residence and domicile enunciated by this court up to this point, we are persuaded that the facts established by the parties weigh heavily in favor of a conclusion supporting petitioner's claim of legal residence or domicile in the First District of Leyte. II. The jurisdictional issue

Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering that the assailed resolutions were rendered on April 24, 1995, fourteen (14) days before the election in violation of Section 78 of the Omnibus Election Code. 48 Moreover, petitioner contends that it is the House of Representatives Electoral Tribunal and not the COMELEC which has jurisdiction over the election of members of the House of Representatives in accordance with Article VI, Sec. 17 of the Constitution. This is untenable. It is a settled doctrine that a statute requiring rendition of judgment within a specified time is generally construed to be merely directory, 49 "so that non-compliance with them does not invalidate the judgment on the theory that if the statute had intended such result it would have clearly indicated it." 50 The difference between a mandatory and a directory provision is often made on grounds of necessity. Adopting the same view held by several American authorities, this court in Marcelino v. 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 merelyon the ground of having failed to reach a decision within a given or prescribed period. cdll 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 respondentCommission does not lose jurisdiction to hear and decide a pending disqualification case under Section 78 of B.P. 881 even after the elections. cdlex As to the House of Representatives Electoral Tribunal's supposed assumption of jurisdiction over the issue of petitioner's qualifications after the May 8, 1995 elections, suffice it to say that HRET's jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of members of Congress begins only after a candidate has become a member of the House of Representatives. 53 Petitioner not being a member of the House of Representatives, it is obvious that the HRET at this point has no jurisdiction over the question. It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us to either to ignore or deliberately make distinctions in law solely on the basis of the personality of a petitioner in a case. Obviously a distinction was made on such a ground here. Surely, many established principles of law, even of election laws were flouted for the sake perpetuating power during the pre-EDSA regime. We renege on these sacred ideals, including the meaning and spirit of EDSA by ourselves bending established 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 mistake 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. RespondentCOMELEC 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. LLjur ||| (Romualdez-Marcos v. Commission on Elections, G.R. No. 119976, [September 18, 1995], 318 PHIL 329-466) [G.R. No. 120265. September 18, 1995.] AGAPITO A. AQUINO, petitioner, vs. COMMISSION ON ELECTIONS, MOVE MAKATI, MATEO BEDON, and JUANITO ICARO, respondents. Haydee B. Yorac, R.A.V . Saguisag and Clarence D. Guerrero for petitioner. Felix D. Carao, Jr., collaborating counsel for petitioner. Pete Quirino Quadra for private respondents Move Makati and Mateo B. Bedon. SYLLABUS 1. ELECTION LAW; COMMISSION ON ELECTIONS; JURISDICTION OVER QUALIFICATION CASES OF CANDIDATES FOR MEMBERS OF HOUSE OF REPRESENTATIVES; CONTINUES EVEN AFTER THE ELECTION. — Petitioner vigorously contends that after the May 8, 1995 elections, the COMELEC lost its jurisdiction over the question of petitioner's qualifications to run for member of the House of Representatives. He claims that jurisdiction over the petition for disqualification is exclusively lodged with the House of Representatives Electoral Tribunal (HRET). Given the yet — unresolved question of jurisdiction, petitioner avers that the COMELEC committed serious error and grave abuse of discretion in directing the suspension of his proclamation as the winning candidate in the Second Congressional District of Makati City. We disagree. Petitioner conveniently confuses the distinction between an unproclaimed candidate to the House of Representatives and a member of the same. Obtaining the highest number of votes in an election does not automatically vest the position in the winning candidate. Under Section 17 of Article VI of the 1987 Constitution, the Senate and the House of Representatives shall have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualifications of their respective Members. The electoral tribunal clearly assumes jurisdiction over all contests relative to the election, returns and qualifications of candidates for either the Senate or the House only when the latter become members of either the Senate or the House of Representatives. A candidate who has not been proclaimed and who has not taken his oath of office cannot be said to be a member of the House of Representatives subject to Section 17 of Article VI of the Constitution. While the proclamation of a winning candidate in an election is ministerial, B.P. 881 in conjunction with Sec. 6 of R.A. 6646 allows suspension of proclamation under circumstances mentioned therein. Thus, petitioner's contention that "after the conduct of the election and (petitioner) has been established the winner of the electoral exercise from the moment of election, the COMELEC is automatically divested of authority to pass upon the question of qualification" finds no basis in law, because even after the elections the COMELEC is empowered by Section 6 (in relation to Section 7) of R.A. 6646 to continue to hear and decide questions relating to qualifications of candidates. 2. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; HOUSE OF REPRESENTATIVES; QUALIFICATION OF CANDIDATES FOR MEMBERS; RESIDENCY REQUIREMENT; CANDIDATE MUST PROVE THAT HE HAS ESTABLISHED NOT JUST RESIDENCE BUT DOMICILE OF CHOICE. — Clearly, the place "where a party actually or constructively has his permanent home," where he, no matter where he may be found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the

purposes of election law. The manifest purpose of this deviation from the usual conceptions of residency in law as explained in Gallego vs. Vera, (73 Phil. 453 [1941]) is "to exclude strangers or newcomers unfamiliar with the conditions and needs of the community" from taking advantage of favorable circumstances existing in that community for electoral gain. While there is nothing wrong with the practice of establishing residence in a given area for meeting election law requirements, this nonetheless defeats the essence of representation, which is to place through the assent of voters those most cognizant and sensitive to the needs of a particular district, if a candidate falls short of the period of residency mandated by law for him to qualify. That purpose could be obviously best met by individuals who have either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice. It would, therefore, be imperative for this Court to inquire into the threshold question as to whether or not petitioner actually was a resident for a period of one year in the area now encompassed by the Second Legislative District of Makati at the time of his election or whether or not he was domiciled in the same. 3. ID.; ID.; ID.; ID.; ID.; RESIDENCE SYNONYMOUS WITH DOMICILE FOR ELECTION PURPOSES. — We agree with COMELEC's contention that in order that petitioner could qualify as a candidate for Representative of the Second District of Makati City the latter "must prove that he has established not just residence but domicile of choice." The Constitution requires that a person seeking election to the House of Representatives should be a resident of thedistrict in which he seeks election for a period of not less than one (1) year prior to the elections. Residence, for election law purposes, has a settled meaning in our jurisdiction. In Co v. Electoral Tribunal of the House of Representatives (199 SCRA 692 [1991]) this Court held that the term "residence" has always been understood as synonymous with "domicile" not only under the previous Constitutions but also under the 1987 Constitution. 4. ID.; ID.; ID.; ID.; ID.; CLEAR AND POSITIVE PROOF SHOWING A SUCCESSFUL ABANDONMENT OF DOMICILE MUST BE ESTABLISHED; CASE AT BAR. — While property ownership is not and should never be an indicia of the right to vote or to be voted upon, the fact that petitioner himself claims that he has other residences in Metro Manila coupled with the short length of time he claims to be a resident of the condominium unit in Makati (and the fact, of his stated domicile in Tarlac) "indicate that the sole purpose of (petitioner) in transferring his physical residence" is not to acquire a new residence or domicile "but only to qualify as a candidate for Representative of the Second District of Makati City." The absence of clear and positive proof showing a successful abandonment of domicile under the conditions stated above, the lack of identification — sentimental, actual or otherwise — with the area, and the suspicious circumstances under which the lease agreement was effected all belie petitioner's claim of residency for the period required by the Constitution, in the Second District of Makati. As the COMELEC en banc emphatically pointed out: [T]he lease agreement was executed mainly to support the one year residence requirement as a qualification for a candidate of Representative, by establishing a commencement date of his residence. If a perfectly valid lease agreement cannot, by itself establish a domicile of choice, this particular lease agreement cannot do better. Moreover, his assertion that he has transferred his domicile from Tarlac to Makati is a bare assertion which is hardly supported by the facts in the case at bench. Domicile of origin is not easily lost. To successfully effect a change of domicile, petitioner must prove an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts which correspond with the purpose. These requirements are hardly met by the evidence adduced in support of petitioner's claims of a change of domicile from Tarlac to the Second District of Makati. In the absence of clear and positive proof, the domicile of origin should be deemed to continue. 5. ID.; ELECTORAL REFORM LAW OF 1987 (R.A. 6646); EFFECT OF DISQUALIFICATION; OBTAINING THE HIGHEST NUMBER OF VOTES WILL NOT RESULT IN THE SUSPENSION OR TERMINATION OF THE PROCEEDINGS WHEN THE EVIDENCE OF GUILT IS STRONG. — Under Section 6 of R.A. 6646, not only is a disqualification case against a candidate allowed to continue

after the election (and does not oust the COMELEC of its jurisdiction), but his obtaining the highest number of votes will not result in the suspension or termination of the proceedings against him when the evidence of guilt is strong. While the phrase "when the evidence of guilt is strong" seems to suggest that the provisions of Section 6 ought to be applicable only to disqualification cases under Section 68 of the Omnibus Election Code, Section 7 of R.A. 6646 allows the application of the provisions of Section 6 to cases involving disqualification based on ineligibility under Section 78 of B.P. 881. 6. ID.; INELIGIBILITY OF CANDIDATE; DOES NOT ENTITLE THE ELIGIBLE CANDIDATE RECEIVING THE NEXT HIGHEST NUMBER OF VOTES TO BE DECLARED ELECTED. — In the more recent cases of Labo, Jr. v. Comelec (176 SCRA 1 [1989]); Abella v. Comelec (201 SCRA 253 [1991]); and Benito v. Comelec, (235 SCRA 436 [1994]), this Court reiterated and upheld the ruling in Topacio v. Paredes, and Geronimo v. Ramos to the effect that the ineligibility of a candidate receiving the majority votes does not entitle the eligible candidate receiving the next higher number of votes to be declared elected, and that a minority or defeated candidate cannot be declared elected to the office. In these cases, we put emphasis on our pronouncement in Geronimo v. Ramos that: The fact that a candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in sincere belief that that candidate was alive, qualified, or eligible; they should not be treated as stray, void or meaningless. PADILLA, J ., separate concurring opinion: 1. ELECTION LAW; QUALIFICATION OF CANDIDATES; RESIDENCY REQUIREMENT; CANDIDATE MUST PROVE THAT HE HAD ACTUALLY AND PHYSICALLY RESIDED IN THE PLACE TO BE VOTED UPON. — In G.R. No. 119976, Marcos vs. Comelec, J . Padilla have maintained that the phrase "a resident thereof for a period of not less than one year" means actual and physical presence in the legislative district of the congressional candidate, and that said period of one year must be satisfied regardless of whether or not a person's residence or domicile coincides. To my mind, petitioner should be declared disqualified to run as representative in the 2nd district of Makati City in the 8 May 1995 elections not because he failed to prove his residence therein as his domicile of choice, but because he failed altogether to prove that he had actually and physically resided therein for a period of not less than one (1) year immediately preceding the 8 May 1995 elections. Petitioner evidently wants to impress the Court that his other residences in Metro Manila could never have become his domicile of choice because it never entered his mind and suddenly, seemingly not contented with these residences, he rents a condominium unit in Makati, and calls it his domicile of choice — all these without adding clear and convincing evidence that he did actually live and reside in Makati for at least one year prior to 8 May 1995 — and that he no longer lived and resided in his other residences during said one year period. It follows, likewise, that the lease contract relied upon by petitioner, standing alone, established only the alleged date (April 25, 1994) of its due execution. Stated otherwise, the lease contract tells us that petitioner had been leasing a condominium unit in Makati City for more than a year prior to 8 May 1995, but it does not prove that petitioner actually and physically resided therein for the same period, in the light of his admission that he maintained other residences in Metro Manila. 2. ID.; DISQUALIFICATION OF CANDIDATES; VOTES CAST IN FAVOR OF SAID CANDIDATE SHALL NOT BE COUNTED. — J . Padilla agrees with the proposition advanced by the Solicitor General that Sec. 6 of R.A. 6646 clearly provides that votes cast for a disqualified candidate shall not be counted. There can be no dispute that if a final judgment is rendered before the election, declaring a particular candidate as disqualified, such disqualified candidate shall not be voted for and votes cast for him shall not be counted, thus posing no problem in proclaiming the candidate who receives

the highest number of votes among the qualified candidates. But what about after the election? Sec. 6 appears categorical enough in stating: "if for any reason" no final judgment of disqualification is rendered before the elections, and the candidate facing disqualification is voted for and receives the winning number of votes, the Comelec or the Court is not ousted of its jurisdiction to hear and try the case up to final judgment, hence, the power to even suspend the proclamation of the erstwhile winning candidate when evidence of guilt is strong. It thus appear clear that the law does not dichotomize the effect of a final judgment of disqualification in terms of time considerations. There is only one natural and logical effect: the disqualified candidate shall not be voted and, if voted, the votes case for him shall not be counted. Ubi lex non ditinguit nec nos distinguere debemus (where the law does not distinguish, we should not distinguish.) 3. ID.; ID.; ID.; CANDIDATE WHO RECEIVED THE HIGHEST NUMBER OF VOTES SHOULD BE PROCLAIMED. — At this point, what J . Padilla said in Marcos, supra, follows: "What happens then when after the elections are over, one is declared disqualified? Then, votes cast for him "shall not be counted" and in legal contemplation, he no longer received the highest number of votes. It stands to reason that Section 6 of RA 6646 does not make the second placer the winner simply because a "winning candidate is disqualified," but that the law considers him as the candidate who had obtained the highest number of votes as a result of the votes cast for the disqualified candidate not being counted or considered. As this law clearly reflects the legislative policy on the matter, then there is no reason why this Court should not re-examine and consequently abandon the doctrine in the Jun Labo case. It has been stated that "the qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, most especially when it is mandated by no less than the Constitution." Therefore the candidate who received the highest number of votes from among the qualified candidates, should be proclaimed. cdasia FRANCISCO, J ., concurring and dissenting opinion: 1. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; HOUSE OF REPRESENTATIVE ELECTORAL TRIBUNAL; PROCLAMATION OF WINNER IN THE CONTESTED ELECTION AN ESSENTIAL REQUISITE TO VEST JURISDICTION THEREON. — Section 17 of Article VI of the 1987 Constitution is clear and unambiguous that HRET jurisdiction applies only to the members of the House of Representatives. The operative acts necessary for an electoral candidate's rightful assumption of the office for which he ran are his proclamation and his taking an oath of office. Petitioner cannot in anyway be considered as a member of the House of Representatives for the purpose of divesting the Commission on Elections of jurisdiction to declare his disqualification and invoking instead HRET's jurisdiction, it indubitably appearing that he has yet to be proclaimed, much less has he taken an oath of office. That the jurisdiction conferred upon HRET extends only to Congressional members is further established by judicial notice of HRET Rules of Procedure, and HRET decisions consistently holding that the proclamation of a winner in the contested election is the essential requisite vesting jurisdiction on the HRET. 2. ID.; ID.; HOUSE OF REPRESENTATIVES QUALIFICATION OF MEMBERS; RESIDENCY REQUIREMENT; DECISION TO TRANSFER LEGAL RESIDENCE MUST BEBONA FIDE AND UNEQUIVOCAL. — Petitioner insists that domicile is a matter of personal intention. Thus, petitioner asserts that if he decides to transfer his legal residence so he can qualify for public office then he is entirely free to do so. This argument to hold water, must be supported by clear and convincing proofs that petitioner has effectively abandoned his former domicile and that his intention is not doubtful. Indeed, domicile once established is considered to continue and will not be deemed lost until a new one is established (Co. v. Electoral Tribunal of the House of Representatives, 199 SCRA 692, 711 [1991]). Petitioner from childhood until his last election as senator has consistently maintained Conception, Tarlac, as his domicile. He moved to Amapola Street, Palm Village, Makati, and thereafter claimed the same to be his new domicile. This claim, however, is dismally unsupported by the records. The lease contract entered into by petitioner for a period of two years on the third floor

condominium unit in Palm Village, Makati, in my view, does not prove his intent to abandon his domicile of origin. The intention to establish domicile must be an intention to remain indefinitely or permanently in the new place. This element is lacking in this instance. Worse, public respondent Commission even found that "respondent Aquino himself testified that his intention was really for only one (1) year because he has other 'residences' in Manila or in Quezon City (citing TSN, May 2, 1995, p. 92)." Noting that petitioner is already barred from running for senator due to the constitutional consecutive two-term limit, his search for a place where he could further and continue his political career and sudden transfer thereto make his intent suspect. The best test of intention to establish legal residence comes from one's acts and not by mere declarations alone. To acquire, to effect a change of domicile, the intention must be bona fide and unequivocal (28 C.J.S. 11). Petitioner, in my view, miserably failed to show a bona fide and unequivocal intention to effect the change of his domicile. 3. ID.; ID.; ID.; ID.; RULES PROVIDED BY THE CONSTITUTION NOT BRUSHED ASIDE BY THE ENACTMENT OF R.A. No. 7854. — The theory of legal impossibility is advanced to justify noncompliance with the constitutional qualification on residency. Petitioner explains his theory in this wise: ". . . THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF CONGRESSIONAL CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE ONLY EXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTION AND BARELY FOUR MONTHS IN THE CASE OF PETITIONER'S DISTRICT IN MAKATI." Apparently, this theory is an offshoot of Republic Act No. 7854, an act converting the municipality of Makati into a highly urbanized city. This law enacted on January 2, 1995, established a Second Congressional district in Makati in which petitioner ran as a Congressional candidate. Since the second district, according to petitioner, is barely four (4) months old then the one (1) year residence qualification provided by the Constitution is inapplicable. Petitioner's acts, however, as borne by the records, belie his own theory. Originally, he placed in his certificate of candidacy an entry of ten (10) months residence in Makati. Petitioner then had it amended to one (1) year and thirteen (13) days to correct what he claims as a mere inadvertent mistake. I doubt the sincerity of this representation. If petitioner is indeed persuaded by his own theory, the ten months residence he initially wrote would have more than sufficiently qualified him to run in the barely four-month old Makati district. The amendment only reveals the true intent of petitioner to comply with the one year constitutional requirement for residence, adding an extra thirteen (13) days for full measure. Petitioner apparently wanted to argue one way (theory of legal impossibility), but at the same time played it safe in the other (the constitutional one year residence requirement). And that is not all. If we were to adhere to petitioner's theory of legal impossibility, then residents in that district shorn of the constitutional six months residence requirement for prospective voters (Article V, Section 1 of the 1987 Constitution) would have certainly qualified to vote. That would have legitimized the entry and electoral exercise of flying voters — one of the historic nemeses of a clean and honest election. Furthermore, to subscribe to petitioner's contention that the constitutional qualification of candidates should be brushed aside in view of the enactment of R.A. No. 7854 will indubitably violate the manner and procedure for the amendment or revision of the constitution outlined under Article XVIII of the 1987 Constitution. A legislative enactment, it has to be emphasized, cannot render nugatory the constitution. The constitution is superior to a statute. It is the fundamental and organic law of the land to which every state must conform and harmonize.

4. ELECTION LAW; COMMISSION ON ELECTIONS; JURISDICTION THEREOF CANNOT BE QUESTIONED IF THE PARTY ACTIVELY PARTICIPATED IN THE PROCEEDINGS THEREIN. — It is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief to afterwards deny that same jurisdiction to escape an adverse decision.

Perforce, petitioner's asseveration that the COMELEC has no jurisdiction to rule on his qualification must fail. 5. ID.; DISQUALIFICATION OF CANDIDATE; VOTES CAST IN HIS FAVOR SHALL NOT BE COUNTED. — It has been contended that a second place candidate cannot be proclaimed a substitute winner. Justice Francisco finds the proposition quite unacceptable. A disqualified "candidate" is not a candidate and the votes which may have been cast in his favor are nothing but stray votes of no legal consequence. A disqualified person like the petitioner receives no vote or zero vote. In short, no-candidate-no vote. Petitioner had therefore no right, in fact and in law, to claim first place for he has nothing to base his right. The legislative intent is clear as provided by R.A. 6646, Section 6, in that votes cast for a disqualified candidate shall not be counted as they are considered stray(Section 211, Rule 24, Omnibus Election Code). It is only from the ranks of qualified candidates can one be chosen as first placer and not from without. Necessarily, petitioner, a disqualified candidate, cannot be a first placer as he claims himself to be. To count the votes for a disqualified candidate would, in my view, disenfranchise voters who voted for a qualified candidate. Legitimate votes cast for a qualified candidate should not be penalized alongside a disqualified candidate. With this in mind, the other qualified candidate who garnered the highest number of votes should be proclaimed the duly elected representative of the district. Justice Francisco feels that the Labo doctrine ought to be abandoned. DAVIDE, JR., J ., dissenting opinion: 1. ELECTION LAWS; OMNIBUS ELECTION CODE (BATAS PAMBANSA 881); PETITION TO DENY DUE COURSE TO OR CANCEL A CERTIFICATE OF CANDIDACY; RULE PROVIDED UNDER SECTION 78 THEREOF NOT SUPERSEDED BY RULE 25 OF THE COMELEC RULES OF PROCEDURE. — The petition to disqualify the petitioner in SPA No. 95-113 is not a petition to deny due course to or cancel a certificate of candidacy under Section 78. Nowhere in the petition in SPA No. 95-113 is it alleged by the private respondents that a material representation contained in the petitioner's certificate of candidacy is false. What is being attacked therein is the petitioner's lack of the one-year residence qualification in the new Second Legislative District of Makati City where he sought to be elected for the office of Congressman. The rule governing disqualification cases on the ground of ineligibility, which is also invoked by the private respondents, is Rule 25 of the COMELEC Rules of Procedure, as amended on 15 February 1993. The amendment allows the filing of a petition to disqualify a candidate on the ground that he does not possess all the qualifications provided for by the Constitution or by existing laws. In its original form, the rule only applied to petitions for disqualification based on the commission of any act declared by law to be a ground for disqualification. The rule as thus amended now reads as follows: Rule 25 — Disqualification of Candidates SECTION 1. Grounds for Disqualification. — Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate. The italicized portion is the amendment to Rule 25, which the COMELEC must have deemed necessary to fill up a procedural hiatus in cases of disqualifications based on other grounds in the light of this Court's interpretation in Loong vs.Commission on Elections (216 SCRA 760 [1992]) that Rule 25 refers only to disqualifications under Section 12 and 68 of the Omnibus Election Code. This Court explicitly stated therein as follows: We do not agree with private respondent Ututalum's contention that the petition for disqualification, as in the case at bar, may be filed at any time after the last day for filing a certificate of candidacy but not later than the date of proclamation, applying Section 3, Rule 25 of the Comelec Rules of Procedure. Rule 25 of the Comelec Rules of Procedure refers to Disqualification of Candidates; and Section 1 of said rule provides that any candidate who commits any act declared by law to be ground for disqualification may be disqualified from continuing as a candidate. The grounds for disqualification is expressed in Sections 12 and 68 of the Code. The petition filed by private respondent Ututalum with the respondent Comelec to disqualify petitioner Loong on the ground that the latter made a false representation in his certificate of candidacy as to

his age, clearly does not fall under the grounds of disqualification as provided for in Rule 25 but is expressly covered by Rule 23 of the Comelec Rules of Procedure governing petitions to cancel certificate of candidacy. Moreover, Section 3, Rule 25 which allows the filing of the petition at any time after the last day for the filing of certificates of candidacy but not later than the date of proclamation, is merely a procedural rule issued by respondent Commission which, although a constitutional body, has no legislative powers. Thus, it can not supersede Section 78 of the Omnibus Election Code which is a legislative enactment. cdtai 2. ID.; ELECTORAL REFORMS LAW OF 1987 (R.A. 6646); PETITION TO DENY DUE COURSE TO OR CANCEL A CERTIFICATE OF CANDIDATES; "PROCEDURE HEREINABOVE PROVIDED" MENTIONED UNDER SECTION 7 REFERS TO THE EFFECT OF DISQUALIFICATION CASES. — Even if we assume for the sake of argument that the petition in SPA No. 95-113 fall under Section 78 of the Omnibus Election Code, still Section 6 of R.A. No. 6646 cannot be applied by virtue of Section 7 thereof. The "procedure hereinabove provided" mentioned in Section 7 cannot be construed to refer to Section 6 which does not provide for a procedure but for the EFFECTS of disqualification cases. It can only refer to the procedure provided in Section 5 of the said Act on nuisance candidates and which is the only procedure that precedes Section 7 of the said Act. Heretofore, no law provided for the procedure to govern cases under Section 78. Applying to such cases, through Section 7 of R.A. 6646, the procedure applicable to cases of nuisance candidates is prudent and wise, for both cases necessarily require that they be decided before the day of the election; hence, only summary proceedings thereon can adequately respond to the urgency of the matter. 3. ID.; ID.; EFFECTS OF DISQUALIFICATION; RULE PROVIDED UNDER SECTION 6 MERELY SUPPLEMENTS SECTION 72 OF THE OMNIBUS ELECTION CODE. — Section 6 merely supplements Section 72 of the Omnibus Election Code by granting the COMELEC or the Court the authority to continue hearing the case and to suspend the proclamation if the evidence of guilt is strong. As observed by this Court in its majority opinion "the phrase 'when the evidence of guilt is strong' seems to suggest that the provisions of Section 6 ought to be applicable only to disqualification cases under Section 68 of the Omnibus Election Code." 4. ID.; ID.; ID.; COMELEC NOT AUTHORIZED TO CONTINUE HEARING THE CASE AFTER THE ELECTION EVEN WITH THE AMENDMENT OF RULE 25 OF THE COMELEC RULES OF PROCEDURE. — The amended Rule 25 of the COMELEC Rules of Procedure, which is the only rule governing petitions filed before election or proclamation for the disqualification of a candidate on the ground that he lacks the qualifications provided for by the Constitution or by law, does not, as can be gathered from Section 5 thereof, authorize the COMELEC to continue hearing the case after the election. 5. ID.; ID.; ID.; RULE CANNOT BE APPLIED TO A CASE WHICH DOES NOT INVOLVE REGIONAL, PROVINCIAL AND CITY OFFICIALS AND WHERE SUSPENSION OF PROCLAMATION IS NOT WARRANTED BECAUSE OF ABSENCE OF STRONG EVIDENCE OF GUILT OR INELIGIBILITY. — Even assuming that the second sentence of Section 6 of R.A. No. 6646 is applicable to disqualification cases based on the ground of lack of qualification, it cannot be applied to a case which does not involve elective regional, provincial, and city officials, and where suspension of proclamation is not warranted because of the absence of strong evidence of guilt or ineligibility. In such a case, the candidate sought to be disqualified but who obtains the highest number of votes has to be proclaimed. Once he is proclaimed, the COMELEC cannot continue with the case, and the remedy of the opponent is to contest the winning candidate's eligibility within ten days from proclamation in a quo warranto proceeding which is within the jurisdiction of the metropolitan or municipal trial courts, in the case of barangay officials; the regional trial courts, in the case of municipal officials (Section 2[2], Article IX-C, Constitution; Section 253, paragraph 2, B.P. Blg. 881); the House of Representatives Electoral Tribunal, in the case of Congressmen; the Senate Electoral Tribunal, in the case of Senators (Section 17, Article VI, Constitution); and the Supreme Court en banc, in the case of the President or Vice-President (Section 4, Article VII, Constitution). If what is

involved is an elective regional, provincial, or city official, and the case cannot be decided before the election, the COMELEC can, even after the proclamation of the candidate sought to be disqualified, proceed with the case by treating it as a petition for quo warranto, since such a case properly pertains to the exclusive jurisdiction of the COMELEC (Section 2[2], Article IX-C, Constitution; Section 253, B.P. Blg. 881). But even granting for the sake of argument that Sections 6 and 7 of R.A. No. 6646, in relation to Section 78 of the Omnibus Election Code and the amended Rule 25 of the COMELEC Rules of Procedure, are applicable, the order of suspension of the petitioner's proclamation issued on 15 May 1995 is null and void for having been issued with grave abuse of discretion. What was before the COMELEC en banc at that stage was the decision of the Second Division of 6 May 1995 dismissing the petition to disqualify the petitioner and declaring him qualified for the position. That decision is a direct and positive rejection of any claim that the evidence of the petitioner's guilt is strong. Note that it was only on 2 June 1995, when the COMELEC en banc reversed the decision of the Second Division, that it was found that the evidence of the petitioner's ineligibility is strong. It would have been otherwise if the Second Division had disqualified the petitioner. VITUG, J ., separate opinion: 1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; SCOPE OF POWER TO ENFORCE AND ADMINISTER ALL LAWS AND REGULATIONS RELATIVE TO THE CONDUCT OF ELECTION. — The Commission on Elections (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 to its authority pass upon the qualification and disqualification prescribed by law of candidates to an elective office. Indeed, preproclamation controversies are expressly placed under the COMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3, Constitution). 2. ID.; ID.; FINDINGS AND JUDGMENT THEREOF NOT REVIEWABLE BY THE COURT EXCEPT IN CASE OF GRAVE ABUSE OF DISCRETION. — The matter before us specifically calls for the observance of the constitutional one-year residency requirement. This issue (whether or not there is here such compliance), to my mind, is basically a question of fact or at least inextricably linked to such determination. The findings and judgment of the COMELEC, in accordance with the long established rule and subject only to a number of exceptions under the basic heading of "grave abuse of discretion," are not reviewable by this Court. 3. ELECTION LAWS; QUALIFICATION OF CANDIDATES; RESIDENCE; SYNONYMOUS WITH DOMICILE. — Justice Vitug does not find much need to do a complex exercise on what seems to him 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." 4. ID.; COMMISSION ON ELECTIONS; PROCLAMATION OF CANDIDATE, NOT MERELY A MINISTERIAL FUNCTION. — 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. He believes, 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. 5. ID.; DISQUALIFICATION OF CANDIDATE; DOES NOT ENTITLE THE CANDIDATE WHO OBTAINED THE SECOND HIGHEST NUMBER OF VOTES TO BE DECLARED WINNER. — There the Court held in Geronimo v. Ramos, (136 SCRA 435): ". . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. 'Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.) The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless.' MENDOZA, J ., separate opinion: 1. ELECTION LAW; ELECTORAL REFORM LAW OF 1987 (R.A. 6646) EFFECT OF DISQUALIFICATION CASES; SUSPENSION OF PROCLAMATION APPLIES TO THOSE WHO ARE GUILTY OF USING "GUNS, GOONS OR GOLD" TO INFLUENCE THE OUTCOME OF ELECTIONS. — The May 15, 1995 resolution of the COMELEC en banc, suspending the proclamation of petitioner should he obtain the highest number of votes for Representative of the Second District of Makati, Metro Manila, purports to have been issued pursuant to 6 of R.A. No. 6646. This provision authorizes the COMELEC to order the suspension of the proclamation "whenever the evidence of his guilt is strong." As explained in my separate opinion in G.R. No. 119976, however, this provision refers to proceedings under § 68 of the Omnibus Election Code which provides for the disqualification of candidates found guilty of using what in political parlance have been referred to as "guns, goons or gold" to influence the outcome of elections. Since the disqualification of petitioner in this case was not sought on this ground, the application of 6 of R.A. No. 6646 is clearly a grave abuse of discretion on the part of the COMELEC. 2. ID.; ID.; ID.; CANDIDATE OBTAINING THE NEXT HIGHEST NUMBER OF VOTES, ENTITLED TO BE DECLARED THE WINNER. — In the event the candidate who obtained the highest number of votes is declared ineligible, the one who received the next highest number of votes is entitled to be declared the winner.

3. ID.; OMNIBUS ELECTION LAW (BP 881); PETITION TO DENY DUE COURSE TO OR CANCEL CERTIFICATE OF CANDIDACY; MAY BE FILED EXCLUSIVELY ON THE GROUND THAT A MATERIAL REPRESENTATION CONTAINED IN THE CERTIFICATE IS FALSE. — The petition to disqualify petitioner in the COMELEC may not be justified under 78 of the OEC which authorizes the filing of a petition for the cancellation of certificates of candidacy since such a petition may be filed "exclusively on the ground that a material representation contained [in the certificate] as required under Section 74 is false." There was no allegation that in stating in his certificate of candidacy that he is a resident of Ampola St., Palm Village, Guadalupe Viejo, Makati, Metro Manila, petitioner made any false representation. cdll

DECISION

KAPUNAN, J p: The sanctity of the people's will must be observed at all times if our nascent democracy is to be preserved. In any challenge having the effect of reversing a democratic choice, expressed through the ballot, this Court should be ever so vigilant in finding solutions which would give effect to the will of the majority, for sound public policy dictates that all elective offices are filled by those who have received the highest number of votes cast in an election. When a challenge to a winning candidate's qualifications however becomes inevitable, the ineligibility ought to be so noxious to the Constitution that giving effect to the apparent will of the people would ultimately do harm to our democratic institutions. On March 20, 1995, petitioner Agapito A. Aquino filed his Certificate of Candidacy for the position of Representative for the new Second Legislative District of Makati City. Among others, Aquino provided the following information in his certificate of candidacy, viz.: (7) RESIDENCE (Complete Address): 284 AMAPOLA COR. ADALLA STS., PALM VILLAGE, MAKATI. xxx xxx xxx (8) RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION: _____ Years and 10 Months. xxx xxx xxx THAT I AM ELIGIBLE for said Office; That I will support and defend the Constitution of the Republic of the Philippines and will maintain true faith and allegiance thereto; That I will obey the law, rules and decrees promulgated by the duly constituted authorities; That the obligation imposed to such is assumed voluntarily, without mental reservation or purpose of evasion, and that the facts therein are true to the best of my knowledge. 1 On April 24, 1995, Move Makati, a duly registered political party, and Mateo Bedon, Chairman of the LAKAS-NUCD-UMDP of Barangay Cembo, Makati City, filed a petition to disqualify Agapito A. Aquino 2 on the ground that the latter lacked the residence qualification as a candidate for congressman which, under Section 6, Art. VI of the 1987 the Constitution, should be for a period not less than one (1) year immediately preceding the May 8, 1995 elections. The petition was docketed as SPA No. 95-113 and was assigned to the Second Division of the Commission on Elections (COMELEC).

On April 25, 1995, a day after said petition for disqualification was filed, petitioner filed another certificate of candidacy amending the certificate dated March 20, 1995. This time, petitioner stated in Item 8 of his certificate that he had resided in the constituency where he sought to be elected for one (1) year and thirteen (13) days. 3 On May 2, 1995, petitioner filed his Answer dated April 29, 1995 praying for the dismissal of the disqualification case. 4 On the same day, May 2, 1995, a hearing was conducted by the COMELEC wherein petitioner testified and presented in evidence, among others, his Affidavit dated May 2, 1995, 5 lease contract between petitioner and Leonor Feliciano dated April 1, 1994, 6 Affidavit of Leonor Feliciano dated April 28, 19957 and Affidavit of Daniel Galamay dated April 28, 1995. 8 After hearing of the petition for disqualification, the Second Division of the COMELEC promulgated a Resolution dated May 6, 1995, the decretal portion of which reads: WHEREFORE, in view of the foregoing, this Commission (Second Division) RESOLVES to DISMISS the instant petition for Disqualification against respondent AGAPITO AQUINO and declares him ELIGIBLE to run for the Office of Representative in the Second Legislative District of Makati City. SO ORDERED. 9 On May 7, 1995, Move Makati and Mateo Bedon filed a Motion for Reconsideration of the May 6, 1995 resolution with the COMELEC en banc. Meanwhile, on May 8, 1995, elections were held. In Makati City where three (3) candidates vied for the congressional seat in the Second District, petitioner garnered thirty eight thousand five hundred forty seven (38,547) votes as against another candidate, Agusto Syjuco, who obtained thirty five thousand nine hundred ten (35,910) votes. 10 On May 10, 1995, private respondents Move Makati and Bedon filed an Urgent Motion Ad Cautelum to Suspend Proclamation of petitioner. Thereafter, they filed an Omnibus Motion for Reconsideration of the COMELEC's Second Division resolution dated May 6, 1995 and a 2nd Urgent MotionAd Cautelum to Suspend Proclamation of petitioner. On May 15, 1995, COMELEC en banc issued an Order suspending petitioner's proclamation. The dispositive portion of the order reads: WHEREFORE, pursuant to the provisions of Section 6 of Republic Act No. 6646, the Board of Canvassers of the City of Makati is hereby directed to complete the canvassing of election returns of the Second District of Makati, but to suspend the proclamation of respondent Agapito A. Aquino should he obtain the winning number of votes for the position of Representative of the Second District of the City of Makati, until the motion for reconsideration filed by the petitioners on May 7, 1995, shall have been resolved by the Commission. The Executive Director, this Commission, is directed to cause the immediate implementation of this Order. The Clerk of Court of the Commission is likewise directed to inform the parties by the fastest means available of this Order, and to calendar the hearing of the Motion for Reconsideration on May 17, 1995, at 10:00 in the morning, PICC Press Center, Pasay City. SO ORDERED. 11 On May 16, 1995, petitioner filed his Comment/Opposition with urgent motion to lift order of suspension of proclamation.

On June 1, 1995, petitioner filed a "Motion to File Supplemental Memorandum and Motion to Resolve Urgent Motion to Resolve Motion to Lift Suspension of Proclamation" wherein he manifested his intention to raise, among others, the issue of whether of not the determination of the qualifications of petitioner after the elections is lodged exclusively in the House of Representatives Electoral Tribunal pursuant to Section 17, Article VI of the 1987 Constitution. Resolving petitioner's motion to lift suspension of his proclamation, the COMELEC en banc issued an Order on June 2, 1995, the decretal portion thereof reading: Pursuant to the said provisions and considering the attendant circumstances of the case, the Commission RESOLVED to proceed with the promulgation but to suspend its rules, to accept the filing of the aforesaid motion, and to allow the parties to be heard thereon because the issue of jurisdiction now before the Commission has to be studied with more reflection and judiciousness. 12 On the same day, June 2, 1995, the COMELEC en banc issued a Resolution reversing the resolution of the Second Division dated May 6, 1995. Thefallo reads as follows: WHEREFORE, in view of the foregoing, petitioners' Motion for Reconsideration of the Resolution of the Second Division, promulgated on May 6, 1995, is GRANTED. Respondent Agapito A. Aquino is declared ineligible and thus disqualified as a candidate for the Office of Representative of the Second Legislative District of Makati City in the May 8, 1995 elections, for lack of the constitutional qualification of residence. Consequently, the order of suspension of proclamation of the respondent should he obtain the winning number of votes, issued by this Commission on May 15, 1995 is now made permanent. LLcd Upon the finality of this Resolution, the Board of Canvassers of the City of Makati shall immediately reconvene and, on the basis of the completed canvass of election returns, determine the winner out of the remaining qualified candidates, who shall be immediately be proclaimed. SO ORDERED. 13 Hence, the instant Petition for Certiorari 14 assailing the orders dated May 15, 1995 and June 2, 1995, as well as the resolution dated June 2, 1995 issued by the COMELEC en banc. Petitioner raises the following errors for consideration, to wit: A THE COMELEC HAS NO JURISDICTION TO DETERMINE AND ADJUDGE THE DISQUALIFICATION ISSUE INVOLVING CONGRESSIONAL CANDIDATES AFTER THE MAY 8, 1995 ELECTIONS, SUCH DETERMINATION BEING RESERVED TO AND LODGE EXCLUSIVELY WITH THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL B ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, SAID JURISDICTION CEASED IN THE INSTANT CASE AFTER THE ELECTIONS, AND THE REMEDY/IES AVAILABLE TO THE ADVERSE PARTIES LIE/S IN ANOTHER FORUM WHICH, IT IS SUBMITTED, IS THE HRET CONSISTENT WITH SECTION 17, ARTICLE VI OF THE 1987 CONSTITUTION C THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT PROCEEDED TO PROMULGATE ITS QUESTIONED DECISION (ANNEX "C", PETITION) DESPITE IT OWN RECOGNITION THAT A THRESHOLD ISSUE OF

JURISDICTION HAS TO BE JUDICIOUSLY REVIEWED AGAIN, ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION, AND SERIOUS ERROR IN DIRECTING WITHOUT NOTICE THE SUSPENSION OF THE PROCLAMATION OF THE PETITIONER AS THE WINNING CONGRESSIONAL CANDIDATE AND DESPITE THE MINISTERIAL NATURE OF SUCH DUTY TO PROCLAIM (PENDING THE FINALITY OF THE DISQUALIFICATION CASE AGAINST THE PETITIONER) IF ONLY NOT TO THWART THE PEOPLE'S WILL D THE COMELEC'S FINDING OF NON-COMPLIANCE WITH THE RESIDENCY REQUIREMENT OF ONE YEAR AGAINST THE PETITIONER IS CONTRARY TO EVIDENCE AND TO APPLICABLE LAWS AND JURISPRUDENCE E IN ANY CASE, THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF CONGRESSIONAL CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE ONLY EXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTION AND BARELY FOUR MONTHS IN THE CASE OF PETITIONER'S DISTRICT IN MAKATI F THE COMELEC COMMITTED SERIOUS ERROR AMOUNTING TO LACK OF JURISDICTION WHEN IT ORDERED THE BOARD OF CANVASSERS TO "DETERMINE AND PROCLAIM THE WINNER OUT OF THE REMAINING QUALIFIED CANDIDATES" AFTER THE ERRONEOUS DISQUALIFICATION OF YOUR PETITIONER IN THAT SUCH DIRECTIVE IS IN TOTAL DISREGARD OF THE WELL SETTLED DOCTRINE THAT A SECOND PLACE CANDIDATE OR A PERSON WHO WAS REPUDIATED BY THE ELECTORATE IS A LOSER AND CANNOT BE PROCLAIMED AS SUBSTITUTE WINNER. 15 I

In his first three assignments of error, petitioner vigorously contends that after the May 8, 1995 elections, the COMELEC lost its jurisdiction over the question of petitioner's qualifications to run for member of the House of Representative. He claims that jurisdiction over the petition for disqualification is exclusively lodged with the House of Representatives Electoral Tribunal (HRET). Given the yet — unresolved question of jurisdiction, petitioner avers that the COMELEC committed serious error and grave abuse of discretion in directing the suspension of his proclamation as the winning candidate in the Second Congressional District of Makati City. We disagree. Petitioner conveniently confuses the distinction between an unproclaimed candidate to the House of Representatives and a member of the same. Obtaining the highest number of votes in an election does not automatically vest the position in the winning candidate. Section 17 of Article VI of the 1987 Constitution reads: The Senate and the House of Representatives shall have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualifications of their respective Members. Under the above-stated provision, the electoral tribunal clearly assumes jurisdiction over all contests relative to the election, returns and qualifications of candidates for either the Senate or the House only when the latter become members of either the Senate or the House of Representatives. A candidate who has not been proclaimed 16 and who has not taken his oath of

office cannot be said to be a member of the House of Representatives subject to Section 17 of Article VI of the Constitution. While the proclamation of a winning candidate in an election is ministerial, B.P. 881in conjunction with Sec. 6 of R.A. 6646 allows suspension of proclamation under circumstances mentioned therein. Thus, petitioner's contention that "after the conduct of the election and (petitioner) has been established the winner of the electoral exercise from the moment of election, the COMELEC is automatically divested of authority to pass upon the question of qualification" finds no basis in law, because even after the elections the COMELEC is empowered by Section 6 (in relation to Section 7) of R.A. 6646 to continue to hear and decide questions relating to qualifications of candidates. Section 6 states: SECTION 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. Under the above-quoted provision, not only is a disqualification case against a candidate allowed to continue after the election (and does not oust the COMELEC of its jurisdiction), but his obtaining the highest number of votes will not result in the suspension or termination of the proceedings against him when the evidence of guilt is strong. While the phrase "when the evidence of guilt is strong" seems to suggest that the provisions of Section 6 ought to be applicable only to disqualification cases under Section 68 of the Omnibus Election Code, Section 7 of R.A. 6646 allows the application of the provisions of Section 6 to cases involving disqualification based on ineligibility under Section 78 of B.P. 881. Section 7 states: SECTION 7. Petition to Deny Due Course or to Cancel a Certificate of Candidacy. — The procedure hereinabove provided shall apply to petition to deny due course to or cancel a certificate of candidacy based on Sec. 78 of Batas Pambansa 881. II We agree with COMELEC's contention that in order that petitioner could qualify as a candidate for Representative of the Second District of Makati City the latter "must prove that he has established not just residence but domicile of choice." 17 The Constitution requires that a person seeking election to the House of Representatives should be a resident of the district in which he seeks election for a period of not less than one (1) year prior to the elections. 18 Residence, for election law purposes, has a settled meaning in our jurisdiction. In Co v. Electoral Tribunal of the House of Representatives 19 this Court held that the term "residence" has always been understood as synonymous with "domicile" not only under the previous Constitutions but also under the 1987 Constitution. The Court there held: 20 The deliberations of the Constitutional Commission reveal that the meaning of residence vis-a-vis the qualifications of a candidate for Congress continues to remain the same as that of domicile, to wit: Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, there was an attempt to require residence in the place not less than one year immediately preceding the day of elections. So my question is: What is the Committee's concept of residence 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 (emphasis ours) (Records of the 1987 Constitutional Convention, Vol. II, July 22, 1986, p. 87). xxx xxx xxx Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo has raised the same point that 'resident' has been interpreted at times as a matter of intention rather than actual residence. Mr. De Los Reyes: Domicile. Ms. Rosario Braid: Yes, So, would the gentlemen consider at the proper time to go back to actual residence rather than mere intention to reside? Mr. De los Reyes: But we might encounter some difficulty especially considering that the provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted by law. So, we have to stick to the original concept that it should be by domicile and not physical and actual residence. (Records of the 1987 Constitutional Commission, Vol. II, July 22, 1986, p. 110). The framers of the Constitution adhered to the earlier definition given to the word "residence" which regarded it as having the same meaning as domicile. Clearly, the place "where a party actually or constructively has his permanent home," 21 where he, no matter where he may be found at any given time, eventually intends to return and remain, i.e., his domicile, is that to which the Constitution refers when it speaks of residence for the purposes of election law. The manifest purpose of this deviation from the usual conceptions of residency in law as explained in Gallego vs. Vera 22 is "to exclude strangers or newcomers unfamiliar with the conditions and needs of the community" from taking advantage of favorable circumstances existing in that community for electoral gain. While there is nothing wrong with the practice of establishing residence in a given area for meeting election law requirements, this nonetheless defeats the essence of representation, which is to place through the assent of voters those most cognizant and sensitive to the needs of a particular district, if a candidate falls short of the period of residency mandated by law for him to qualify. That purpose could be obviously best met by individuals who have either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice. It would, therefore, be imperative for this Court to inquire into the threshold question as to whether or not petitioner actually was a resident for a period of one year in the area now encompassed by the Second Legislative District of Makati at the time of his election or whether or not he was domiciled in the same. Llibris As found by the COMELEC en banc petitioner in his Certificate of Candidacy for the May 11, 1992 elections, indicated not only that he was aresident of San Jose, Concepcion, Tarlac in 1992 but that he was a resident of the same for 52 years immediately preceding that election. 23 At the time, his certificate indicated that he was also a registered voter of the same district. 24 His birth certificate places Concepcion, Tarlac as the birthplace of both of his parents Benigno and Aurora. 25 Thus, from data furnished by petitioner himself to the COMELEC at various times during his political career, what stands consistently clear and unassailable is that his domicile of origin of record up to the time of filing of his most recent certificate of candidacy for the 1995 elections was Concepcion, Tarlac. Petitioner's alleged connection with the Second District of Makati City is an alleged lease agreement of a condominium unit in the area. As the COMELEC, in its disputed Resolution noted: The intention not to establish a permanent home in Makati City is evident in his leasing a condominium unit instead of buying one. While a lease contract maybe

indicative of respondent's intention to reside in Makati City it does not engender the kind of permanency required to prove abandonment of one's original domicile especially since, by its terms, it is only for a period of two (2) years, and respondent Aquino himself testified that his intention was really for only one (1) year because he has other "residences" in Manila or Quezon City. 26 While property ownership is not and should never be an indicia of the right to vote or to be voted upon, the fact that petitioner himself claims that he has other residences in Metro Manila coupled with the short length of time he claims to be a resident of the condominium unit in Makati (and the fact of his stated domicile in Tarlac) "indicate that the sole purpose of (petitioner) in transferring his physical residence" 27 is not to acquire a new residence or domicile "but only to qualify as a candidate for Representative of the Second District of Makati City." 28 The absence of clear and positive proof showing a successful abandonment of domicile under the conditions stated above, the lack of identification — sentimental, actual or otherwise — with the area, and the suspicious circumstances under which the lease agreement was effected all belie petitioner's claim of residency for the period required by the Constitution, in the Second District of Makati. As the COMELEC en banc emphatically pointed out: [T]he lease agreement was executed mainly to support the one year residence requirement as a qualification for a candidate of Representative, by establishing a commencement date of his residence. If a perfectly valid lease agreement cannot, by itself establish a domicile of choice, this particular lease agreement cannot do better. 29 Moreover, his assertion that he has transferred his domicile from Tarlac to Makati is a bare assertion which is hardly supported by the facts in the case at bench. Domicile of origin is not easily lost. To successfully effect a change of domicile, petitioner must prove an actual removal or an actual change of domicile, a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts which correspond with the purpose. 30 These requirements are hardly met by the evidence adduced in support of petitioner's claims of a change of domicile from Tarlac to the Second District of Makati. In the absence of clear and positive proof, the domicile of origin should be deemed to continue. Finally, petitioner's submission that it would be legally impossible to impose the one year residency requirement in a newly created political district is specious and lacks basis in logic. A new political district is not created out of thin air. It is carved out from part of a real and existing geographic area, in this case the old Municipality of Makati. That people actually lived or were domiciled in the area encompassed by the new Second District cannot be denied. Modern-day carpetbaggers cannot be allowed take advantage of the creation of new political districts by suddenly transplanting themselves in such new districts, prejudicing their genuine residents in the process of taking advantage of existing conditions in these areas. It will be noted, as COMELEC did in its assailed resolution, that petitioner was disqualified from running in the Senate because of the constitutional two-term limit, and had to shop around for a place where he could run for public office. Nothing wrong with that, but he must first prove with reasonable certainty that he has effected a change of residence for election law purposes for the period required by law. This he has not effectively done. III The next issue here is whether or not the COMELEC erred in issuing its Order instructing the Board of Canvassers of Makati City to proclaim as winner the candidate receiving the next higher number of votes. The answer must be in the negative.

To contend that Syjuco should be proclaimed because he was the "first" among the qualified candidates in the May 8, 1995 elections is to misconstrue the nature of the democratic electoral process and the sociological and psychological underpinnings behind voters' preferences. The result suggested by private respondent would lead not only to our reversing the doctrines firmly entrenched in the two cases of Labo vs. Comelec 31 but also to a massive disenfranchisement of the thousands of voters who cast their vote in favor of a candidate they believed could be validly voted for during the elections. Had petitioner been disqualified before the elections, the choice, moreover, would have been different. The votes for Aquino given the acrimony which attended the campaign, would not have automatically gone to second placer Syjuco. The nature of the playing field would have substantially changed. To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under such circumstances. In these cases, the pendulum of judicial opinion in our country has swung from one end to the other. In the early case of Topacio v. Paredes 32 we declared as valid, votes cast in favor of a disqualified, ineligible or dead candidate provided the people who voted for such candidate believed in good faith that at the time of the elections said candidate was either qualified, eligible or alive. The votes cast in favor of a disqualified, ineligible or dead candidate cannot be considered stray votes, consequently, the candidate who obtained the next higher number of votes cannot be proclaimed as winner. According to this Court in the said case, "there is not, strictly speaking, a contest, that the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving the plurality of the legally cast ballots." Then in Ticson v. Comelec, 33 this Court held that votes cast in favor of a non-candidate in view of his unlawful change of party affiliation (which was then a ground for disqualification) cannot be considered in the canvassing of election returns and the votes fall into the category of invalid and nonexistent votes because a disqualified candidate is no candidate at all and is not a candidate in the eyes of the law. As a result, this Court upheld the proclamation of the only candidate left in the disputed position. In Geronimo v. Ramos 34 we reiterated our ruling in Topacio v. Paredes that the candidate who lost in an election cannot be proclaimed the winner in the event the candidate who ran for the position is ineligible. We held in Geronimo: [I]t would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the elections. (20 Corpus Juris 2nd, S 243, p. 676.) However, in Santos v. Comelec 35 we made a turnabout from our previous ruling in Geronimo v. Ramos and pronounced that "votes cast for a disqualified candidate fall within the category of invalid or non-existent votes because a disqualified candidate is no candidate at all in the eyes of the law," reverting to our earlier ruling in Ticson v. Comelec.

In the more recent cases of Labo, Jr. v. Comelec; 36 Abella v. Comelec; 37 and Benito v. Comelec, 38 this Court reiterated and upheld the ruling inTopacio v. Paredes and Geronimo v. Ramos to the effect that the ineligibility of a candidate receiving the majority votes does not entitle the eligible candidate receiving the next higher number of votes to be declared elected, and that a minority or defeated candidate cannot be declared elected to the office. In these cases, we put emphasis on our pronouncement in Geronimo v. Ramos that: The fact that a candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in sincere belief that that candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. Synthesizing these rulings we declared in the latest case of Labo, Jr. v. COMELEC that: 39 While Ortega may have garnered the second highest number of votes for the office of city mayor, the fact remains that he was not the choice of the sovereign will. Petitioner Labo was overwhelmingly voted by the electorate for the office of mayor in the belief that he was then qualified to serve the people of Baguio City and his subsequent disqualification does not make respondent Ortega the mayor-elect. This is the import of the recent case ofAbella v. Comelec (201 SCRA 253 [1991]), wherein we held that: While it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed the fact remains that the local elections of Feb. 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes was counted and she obtained the highest number of votes. The net effect is that petitioner lost in the election. He was repudiated by the electorate. . . . What matters is that in the event a candidate for an elected position who is voted for and who obtains the highest number of votes is disqualified for not possessing the eligibility, requirements at the time of the election as provided by law,the candidate who obtains the second highest number of votes for the same position cannot assume the vacated position (Emphasis supplied). Our ruling in Abella applies squarely to the case at bar and we see no compelling reason to depart therefrom. Like Abella, petitioner Ortega lost in the election. He was repudiated by the electorate. He was obviously not the choice of the people of Baguio City. Thus, while respondent Ortega (G.R No. 105111) originally filed a disqualification case with the Comelec (docketed as SPA-92-029) seeking to deny due course to petitioner's (Labo's) candidacy, the same did not deter the people of Baguio City from voting for petitioner Labo, who, by then, was allowed by the respondent Comelec to be voted upon, the resolution for his disqualification having yet to attain the degree of finality (Sec. 78, Omnibus Election Code). And in the earlier case of Labo v. Comelec (supra), We held:

Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City. The latest ruling of the Court in this issue is Santos v. Commission on 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 disregarded as stray. In effect, the second placer won by default. That decisions was supported by eight members of the Court then (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay, and Aquino, JJ., concurring) with three dissenting (Teehankee, acting C.J., Abad Santos and Melencio-Herrera) and another two reserving their votes (Plana and Gutierrez, Jr.). One was on official leave (Fernando, C.J.). Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Santos (136 SCRA 435), which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio vs. Paredes (23 Phil. 238) was supported by ten members of the Court. . . . The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office. LexLibris Indeed, this has been the rule in the United States since 1849 (State ex rel. Dunning v. Giles, 52 Am. Dec. 149). It is therefore incorrect to argue that since a candidate has been disqualified, the votes intended for the disqualified candidate should, in effect, be considered null and void. This would amount to disenfranchising the electorate in whom, sovereignty resides. At the risk of being repetitious, the people of Baguio City opted to elect petitioner Labo bona fide without any intention to misapply their franchise, and in the honest belief that Labo was then qualified to be the person to whom they would entrust the exercise of the powers of the government. Unfortunately, petitioner Labo turned out to be disqualified and cannot assume the office.

Whether or not the candidate whom the majority voted for can or cannot be installed, under no circumstances can a minority or defeated candidate be deemed elected to the office. Surely, the 12,602 votes cast for petitioner Ortega is not a larger number than the 27,471 votes cast for petitioner Labo (as certified by the Election Registrar of Baguio City; rollo, p. 109; G.R No. 105111). This, it bears repeating, expresses the more logical and democratic view. We cannot, in another shift of the pendulum, subscribe to the contention that the runner-up in an election in which the winner has been disqualified is actually the winner among the remaining qualified candidates because this clearly represents a minority view supported only by a scattered number of obscure American state and English court decisions. 40 These decisions neglect the possibility that the runner-up, though obviously qualified, could receive votes so measly and insignificant in

number that the votes they receive would be tantamount to rejection. Theoretically, the "second placer" could receive just one vote. In such a case, it is absurd to proclaim the totally repudiated candidate as the voters' "choice." Moreover, even in instances where the votes received by the second placer may not be considered numerically insignificant, voters' preferences are nonetheless so volatile and unpredictable that the result among qualified candidates, should the equation change because of the disqualification of an ineligible candidate, would not be selfevident. Absence of the apparent though ineligible winner among the choices could lead to a shifting of votes to candidates other than the second placer. By any mathematical formulation, the runner-up in an election cannot be construed to have obtained a majority or plurality of votes cast where an "ineligible" candidate has garnered either a majority or plurality of the votes. In fine, we are left with no choice but to affirm the COMELEC's conclusion declaring herein petitioner ineligible for the elective position of Representative of Makati City's Second District on the basis of respondent commission's finding that petitioner lacks the one year residence in the district mandated by the 1987 Constitution. A democratic government is necessarily a government of laws. In a republican government those laws are themselves ordained by the people. Through their representatives, they dictate the qualifications necessary for service in government positions. And as petitioner clearly lacks one of the essential qualifications for running for membership in the House of Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City would substitute for a requirement mandated by the fundamental law itself. WHEREFORE, premises considered, the instant petition is hereby DISMISSED. Our Order restraining respondent COMELEC from proclaiming the candidate garnering the next highest number of votes in the congressional elections for the Second District of Makati City is made PERMANENT. SO ORDERED. CDta ||| (Aquino v. Commission on Elections, G.R. No. 120265, [September 18, 1995], 318 PHIL 467-539) [G.R. No. 186006. October 16, 2009.] NORLAINIE MITMUG LIMBONA, petitioner, vs. COMMISSION ON ELECTIONS and MALIK "BOBBY" T. ALINGAN, respondents.

RESOLUTION

NACHURA, J p: Before this Court is a Petition for Certiorari under Rule 65, in relation to Rule 64, assailing the Resolution 1 dated November 23, 2007 of the Second Division of the Commission on Elections (Comelec) and the Resolution 2 of the Comelec En Banc dated January 14, 2009 in SPA No. 07-621. The factual and procedural antecedents are as follows: Prior to the May 14, 2007 elections, petitioner Norlainie Mitmug Limbona and her husband, Mohammad "Exchan" Limbona, each filed a Certificate of Candidacy for Mayor of Pantar, Lanao del Norte. On April 2, 2007, private respondent Malik "Bobby" Alingan filed a disqualification case against Mohammad before the Provincial Election Supervisor of Lanao del Norte. On April 12, 2007, Alingan also filed a petition for disqualification against petitioner. 3 Both disqualification cases were premised on the ground that petitioner and her husband lacked the one-year residency requirement and both were not registered voters of Pantar. 4

On April 17, 2007, petitioner executed an Affidavit of Withdrawal of her certificate of candidacy, 5 which was subsequently approved by the Comelec. 6 Petitioner also filed a Motion to Dismiss the disqualification case against her for being moot and academic. 7 On election day, May 14, 2007, the Comelec resolved to postpone the elections in Pantar because there was no final list of voters yet. A special election was scheduled for July 23, 2007. 8 IDEScC On May 24, 2007, the Comelec First Division promulgated a Resolution disqualifying Mohammad as candidate for mayor for failure to comply with the one-year residency requirement. 9 Petitioner then filed her Certificate of Candidacy as substitute candidate on July 21, 2007. On July 23, 2007, Alingan filed a petition for disqualification against petitioner for, among others, lacking the one-year residency requirement (SPA No. 07-621). 10 In a Resolution in SPA No. 07-621 11 dated November 23, 2007, the Comelec Second Division ruled that petitioner was disqualified from running for Mayor of Pantar. The Comelec held that petitioner only became a resident of Pantar in November 2006. It explained that petitioner's domicile of origin was Maguing, Lanao del Norte, her birthplace. When she got married, she became a resident of Barangay Rapasun, Marawi City, where her husband wasBarangay Chairman until November 2006. Barangay Rapasun, the Comelec said, was petitioner's domicile by operation of law under the Family Code. The Comelec found that the evidence petitioner adduced to prove that she has abandoned her domicile of origin or her domicile in Marawi City two years prior to the elections consisted mainly of self-serving affidavits and were not corroborated by independent and competent evidence. The Comelec also took note of its resolution in another case where it was found that petitioner was not even a registered voter in Pantar. Petitioner filed a Motion for Reconsideration. 12 The Comelec resolved the motion in an En Banc Resolution dated January 14, 2009, 13 affirming the Second Division's Resolution disqualifying petitioner. The Comelec said that the issue of whether petitioner has complied with the one-year residency rule has been decided by the Supreme Court in Norlainie Mitmug Limbona v. Commission on Elections and Malik "Bobby" T. Alingan promulgated on June 25, 2008. The Comelec noted that, in said case, the Supreme Court upheld the Comelec First Division's Decision in SPA No. 07-611 disqualifying petitioner from running for mayor of Pantar for failure to comply with the residency requirement. Petitioner is now before this Court assailing the Comelec's November 23, 2007 and January 14, 2009 Resolutions. She posits that the Comelec erred in disqualifying her for failure to comply with the one-year residency requirement. She alleges that in a disqualification case against her husband filed by Nasser Macauyag, another mayoralty candidate, the Comelec considered her husband as a resident of Pantar and qualified to run for any elective office there. Petitioner avers that since her husband was qualified to run in Pantar, she is likewise qualified to run. 14 CEaDAc Petitioner also stresses that she was actually residing and was physically present in that municipality for almost two years prior to the May 2007 elections. During the time she had been residing in Pantar, she associated and mingled with residents there, giving her ample time to know the needs, difficulties, aspirations, and economic potential of the municipality. This, she said, is proof of her intention to establish permanent residency there and her intent to abandon her domicile in Marawi City. She next argues that, even as her husband was Punong Barangay of Rapasun, Marawi City, he never abandoned Pantar as his hometown and domicile of origin. She avers that the performance of her husband's duty in Rapasun did not prevent the latter from having his domicile elsewhere. Hence, it was incorrect for the Comelec to have concluded that her husband changed his domicile only on November 11, 2006. 15 At the very least, petitioner says, the Comelec's

conflicting resolutions on the issue of her husband's residence should create a doubt that should be resolved in her and her husband's favor. 16 She further contends that to disqualify her would disenfranchise the voters of Pantar, the overwhelming majority of whom elected her as mayor during the July 23, 2007 special elections. 17 The Comelec, through the Office of the Solicitor General (OSG), filed its Comment, insisting that the Comelec correctly disqualified petitioner from running as mayor for lack of the one-year residency requirement. 18 The OSG argues that there is no evidence that petitioner has abandoned her domicile of origin or her domicile in Marawi City. 19 Moreover, the OSG said that this Court has ruled on the issue of petitioner's residency in Norlainie Mitmug Limbona v. Commission on Elections and Malik "Bobby" T. Alingan. 20 Lastly, the OSG contends that the Comelec's ruling in Nasser A. Macauyag v. Mohammad Limbona is not binding on petitioner because she was not a party to the case. 21 We dismiss the Petition. The issue of petitioner's disqualification for failure to comply with the one-year residency requirement has been resolved by this Court in Norlainie Mitmug Limbona v. Commission on Elections and Malik "Bobby" T. Alingan. 22 This case stemmed from the first disqualification case filed by herein respondent against petitioner, docketed as SPA No. 07-611. Although the petitioner had withdrawn the Certificate of Candidacy subject of the disqualification case, the Comelec resolved the petition and found that petitioner failed to comply with the one-year residency requirement, and was, therefore, disqualified from running as mayor of Pantar. A unanimous Court upheld the findings of the Comelec, to wit: WHEREFORE, the petition for certiorari is DISMISSED. The September 4, 2007 Resolution of the Commission on Elections in SPA Case No. 07-611 disqualifying petitioner Norlainie Mitmug Limbona from running for office of the Mayor of Pantar, Lanao del Norte, and the January 9, 2008 Resolution denying the motion for reconsideration, are AFFIRMED. In view of the permanent vacancy in the Office of the Mayor, the proclaimed Vice-Mayor shallSUCCEED as Mayor. The temporary restraining order issued on January 29, 2008 is ordered LIFTED. SO ORDERED. 23 The Court found that petitioner failed to satisfy the one-year residency requirement. It held: The Comelec correctly found that petitioner failed to satisfy the one-year residency requirement. The term "residence" as used in the election law is synonymous with "domicile", which imports not only intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. The manifest intent of the law in fixing a residence qualification is to exclude a stranger or newcomer, unacquainted with the conditions and needs of a community and not identified with the latter, from an elective office to serve that community. DCaEAS For purposes of election law, the question of residence is mainly one of intention. There is no hard and fast rule by which to determine where a person actually resides. Three rules are, however, well established: first, that a man must have a residence or domicile somewhere; second, that where once established it remains until a new one is acquired; and third, a man can have but one domicile at a time. In order to acquire a domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to

abandon the old domicile. A person's "domicile" once established is considered to continue and will not be deemed lost until a new one is established. To successfully effect a change of domicile one must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one, and definite acts which correspond with the purpose. In other words, there must basically beanimus 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. Petitioner's claim that she has been physically present and actually residing in Pantar for almost 20 months prior to the elections, is self-serving and unsubstantiated. As correctly observed by the Comelec: In the present case, the evidence adduced by respondent, which consists merely of self-serving affidavits cannot persuade Us that she has abandoned her domicile of origin or her domicile in Marawi City. It is alleged that respondent "has been staying, sleeping and doing business in her house for more than 20 months" in Lower Kalanganan and yet, there is no independent and competent evidence that would corroborate such statement. Further, We find no other act that would indicate respondent's intention to stay in Pantar for an indefinite period of time. The filing of her Certificate of Candidacy in Pantar, standing alone, is not sufficient to hold that she has chosen Pantar as her new residence. We also take notice of the fact that in SPA No. 07-611, this Commission has even found that she is not a registered voter in the said municipality warranting her disqualification as a candidate. DHcSIT We note the findings of the Comelec that petitioner's domicile of origin is Maguing, Lanao del Norte, which is also her place of birth; and that her domicile by operation of law (by virtue of marriage) is Rapasun, Marawi City. The Comelec found that Mohammad, petitioner's husband, effected the change of his domicile in favor of Pantar, Lanao del Norte only on November 11, 2006. Since it is presumed that the husband and wife live together in one legal residence, then it follows that petitioner effected the change of her domicile also on November 11, 2006. Articles 68 and 69 of the Family Code provide: Art. 68.The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. Art. 69.The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (Emphasis ours) Considering that petitioner failed to show that she maintained a separate residence from her husband, and as there is no evidence to prove otherwise, reliance on these provisions of the Family Code is proper and is in consonance with human experience. Thus, for failure to comply with the residency requirement, petitioner is disqualified to run for the office of mayor of Pantar, Lanao del Norte. . . . . 24

Petitioner's Motion for Reconsideration of the above-quoted Decision was denied with finality on March 3, 2009. 25 Petitioner filed another Motion for Reconsideration, 26 which the Court treated as a Second Motion for Reconsideration and, consequently, denied in a Resolution dated June 2, 2009. 27Of late, petitioner has filed a "Manifestation" that raises yet again the issues already resolved in the petition and which the Court has, accordingly, merely noted without action. 28 Thus, our ruling therein has now attained finality. Consequently, the issue of petitioner's compliance with the one-year residency requirement is now settled. We are bound by this Court's ruling in the earlier Limbona case where the issue was squarely raised and categorically resolved. We cannot now rule anew on the merits of this case, especially since the present Petition merely restates issues already passed upon by the Comelec and affirmed by this Court. IcaHCS WHEREFORE, the foregoing premises considered, the Petition is DISMISSED and the Resolution dated November 23, 2007 of the Second Division of the Commission on Elections and the Resolution of the Commission on Elections En Banc dated January 14, 2009 in SPA No. 07621 are AFFIRMED. SO ORDERED. ||| (Limbona v. Commission on Elections, G.R. No. 186006 (Resolution), [October 16, 2009], 619 PHIL 226-234) [G.R. No. 86564. August 1, 1989.] RAMON JR., petitioner, vs. THE COMMISSION ON ELECTIONS (COMELEC) AND LUIS LARDIZABAL, respondents.

EN

L. LABO, BANC

Estelito P. Mendoza for petitioner. Rillera and Quintana for private respondent. SYLLABUS 1. SPECIAL CIVIL ACTION; QUO WARRANTO; PETITION FILED TIMELY. — The Court has considered the arguments of the parties and holds that the petition for quo warranto was filed on time. We agree with the respondents that the fee was paid during the ten-day period as extended by the pendency of the petition when it was treated by the COMELEC as a pre-proclamation proceeding which did not require the payment of a filing fee. At that, we reach this conclusion only on the assumption that the requirement for the payment of the fees in quo warranto proceedings was already effective. There is no record that Res. No. 1450 was even published; and as for Res. No. 1996, this took effect only on March 3, 1988, seven days after its publication in the February 25, 1988 issues of the Manila Chronicle and the Philippine Daily Inquirer, or after the petition was filed. 2. ID.; ID.; PAYMENT OF FILING FEES NECESSARY FOR CONFERMENT OF JURISDICTION; COURT MAY ALLOW PAYMENT WITHIN A REASONABLE TIME. — It is true that in the Manchester Case, we required the timely payment of the filing fee as a precondition for the timeliness of the filing of the case itself. In Sun Insurance Office, Ltd. v. Asuncion, however, this Court, taking into account the special circumstances of that case, reiterated the rule that the trial court acquires jurisdiction over a case only upon the payment of the prescribed filing fee. However, this court may allow the payment of the said fee within a reasonable time. In the event of non-compliance therewith, the case shall be dismissed. The same idea is expressed in Rule 42, Section 18, of the COMELECRules of Procedure adopted on June 20, 1988.

3. CIVIL PROCEDURE; ACTION; RESOLUTION ON THE MERITS INSTEAD OF REMANDING THE CASE TO THE TRIAL COURT FOR FURTHER PROCEEDINGS; AS DEMANDED BY THE DICTATES OF JUSTICE. — Remand of the case to the lower court for further reception of evidence is not necessary where the court is in a position to resolve the dispute based on the records before it. On many occasions, the Court, in the public interest and the expeditious administration of justice, has resolved actions on the merits instead of remanding them to the trial court for further proceedings, such as where the ends of justice would not be subserved by the remand of the case or when public interest demands an early disposition of the case or where the trial court had already received all the evidence of the parties. 4. ID.; ID.; DOCTRINE OF RES JUDICATA NOT APPLICABLE TO QUESTIONS OF CITIZENSHIP; DEFENSE TO BE SEASONABLY INVOKED. — There is also the claim that the decision can no longer be reversed because of the doctrine of res judicata, but this too must be dismissed. This doctrine does not apply to questions of citizenship, as the Court has ruled in several cases. Moreover, it does not appear that it was properly and seasonably pleaded, in a motion to dismiss or in the answer, having been invoked only when the petitioner filed his reply to the private respondent's comment. Besides, one of the requisites of res judicata, to wit, identity of parties, is not present in this case. 5. POLITICAL LAW; NATURALIZATION; ACQUISITION OF CITIZENSHIP BY NATURALIZATION. — The petitioner's contention that his marriage to an Australian national in 1976 did not automatically divest him of Philippine citizenship is irrelevant. There is no claim or finding that he automatically ceased to be a Filipino because of that marriage. He became a citizen of Australia because he was naturalized as such through a formal and positive process, simplified in his case because he was married to an Australian citizen. As a condition for such naturalization, he formally took the Oath of Allegiance and/or made the Affirmation of Allegiance. 6. ID.; CITIZENSHIP; MODES OF LOSING PHILIPPINE CITIZENSHIP. — CA No. 63 enumerates the modes by which Philippine citizenship may be lost. Among these are: (1) naturalization in a foreign country; (2) express renunciation of citizenship; and (3) subscribing to an oath of allegiance to support the Constitution or laws of a foreign country, all of which are applicable to the petitioner. It is also worth mentioning in this connection that under Article IV, Section 5, of the present Constitution, "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law." 7. ID.; ID.; ANNULMENT OF MARRIAGE TO A FOREIGNER NOT AN AUTOMATIC RESTORATION OF PHILIPPINE CITIZENSHIP. — Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled after it was found that his marriage to the Australian citizen was bigamous, that circumstance alone did not automatically restore his Philippine citizenship. His divestiture of Australian citizenship does not concern us here. That is a matter between him and his adopted country. What we must consider is the fact that he voluntarily and freely rejected Philippine citizenship and willingly and knowingly embraced the citizenship of a foreign country. The possibility that he may have been subsequently rejected by Australia, as he claims, does not mean that he has been automatically reinstated as a citizen of the Philippines. 8. ID.; ID.; MEANS OF REACQUIRING PHILIPPINE CITIZENSHIP. — Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. It does not appear in the record, nor does the petitioner claim, that he has reacquired Philippine citizenship by any of these methods. 9. ID.; ID.; LACK OF PHILIPPINE CITIZENSHIP ON THE DAY OF LOCAL ELECTIONS; GROUND FOR DISQUALIFICATION AS A CANDIDATE FOR MAYOR. — The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen of the Philippines. In fact, he was not even a qualified voter under the Constitution itself because of his alienage. He was therefore ineligible as a candidate for mayor of Baguio City under Section 42 of the Local Government Code.

10. ID.; ELECTION; QUALIFICATIONS OF CANDIDATE FOR PUBLIC OFFICE, CONTENDING REQUIREMENTS. — The probability that many of those who voted for the petitioner may have done so in the belief that he was qualified only strengthens the conclusion that the results of the election cannot nullify the qualifications for the office now held by him. These qualifications are continuing requirements; once any of them is lost during incumbency, title to the office itself is deemed forfeited. In the case at bar, the citizenship and voting requirements were not subsequently lost but were not possessed at all in the first place on the day of the election. The petitioner was disqualified from running as mayor and, although elected, is not now qualified to serve as such. 11. ID.; ELECTION; CANDIDATE OBTAINING THE SECOND HIGHEST NUMBER OF VOTES; NOT QUALIFIED TO REPLACE THE DISQUALIFIED CANDIDATE;SANTOS RULING REVERSED. — 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. Re-examining Santos v. Commission on Election, 137 SCRA 740 the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, which represents the more logical and democratic rule. 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.

DECISION

CRUZ, J p: The petitioner asks this Court to restrain the Commission on Elections from looking into the question of his citizenship as a qualification for his office as Mayor of Baguio City. The allegation that he is a foreigner, he says, is not the issue. The issue is whether or not the public respondent has jurisdiction to conduct any inquiry into this matter, considering that the petition for quo warranto against him was not filed on time. cdphil It is noteworthy that this argument is based on the alleged tardiness not of the petition itself but of the payment of the filing fee, which the petitioner contends was an indispensable requirement. The fee is, curiously enough, all of P300.00 only. This brings to mind the popular verse that for want of a horse the kingdom was lost. Still, if it is shown that the petition was indeed filed beyond the reglementary' period, there is no question that this petition must be granted and the challenge abated. The petitioner's position is simple. He was proclaimed mayor-elect of Baguio City on January 20, 1988. The petition for quo warranto was filed by the private respondent on January 26,1988, but no filing fee was paid on that date. This fee was finally paid on February 10, 1988, or twenty-one days after his proclamation. As the petition by itself alone was ineffectual without the filing fee, it should be deemed filed only when the fee was paid. This was done beyond the reglementary period provided for under Section 253 of the Omnibus Election Code reading as follows: SEC. 253. Petition for quo warranto. — Any voter contesting the election of a Member of the Batasang Pambansa, regional, provincial, or city officer onthe ground of ineligibility or of disloyalty to the Republic of the Philippines shall files sworn petition for quo warranto with the Commission within ten days after the proclamation of the result of the election.

The petitioner adds that the payment of the filing fee is required under Rule 36, Section 5, of the Procedural Rules of the COMELEC providing that — Sec. 5. No petition for quo warranto shall be given due course without the payment of a filing fee in the amount of Three Hundred Pesos (P300.00) and the legal research fee as required by law. and stresses that there is abundant jurisprudence holding that the payment of the filing fee is essential to the timeliness of the filing of the petition itself. He cites many rulings of the Court to this effect, specifically Manchester v. Court of Appeals. 1 For his part, the private respondent denies that the filing fee was paid out of time. In fact, he says, it was filed ahead of time. His point is that when he filed his "Petition for Quo Warranto with Prayer for Immediate Annulment of Proclamation and Restraining Order or Injunction" on January 26, 1988, the COMELEC treated it as a pre-proclamation controversy and docketed it as SPC Case No. 88-288. No docket fee was collected although it was offered. It was only on February 8, 1988, that the COMELEC decided to treat his petition as solely for quo warranto and re-docketed it as EPC Case No. 88-19, serving him notice on February 10, 1988. He immediately paid the filing fee on that date. The private respondent argues further that during the period when the COMELEC regarded his petition as a pre-proclamation controversy, the time for filing an election protest or quo warranto proceeding was deemed suspended under Section 248 of the Omnibus Election Code. 2 At any rate, he says, Rule 36, Section 5, of the COMELEC Rules of Procedure cited by the petitioner, became effective only on November 15, 1988, seven days after publication of the said Rules in the Official Gazette pursuant to Section 4, Rule 44 thereof. 3 These rules could not retroact to January 26,1988, when he filed his petition with the COMELEC. In his Reply, the petitioner argues that even if the Omnibus Election Code did not require it, the payment of filing fees was still necessary under Res. No. 1996 and, before that, Res. No. 1450 of the respondent COMELEC, promulgated on January 12, 1988, and February 26, 1980, respectively. To this, the private respondent counters that the latter resolution was intended for the local elections held on January 30, 1980, and did not apply to the 1988 local elections, which were supposed to be governed by the first-mentioned resolution. However, Res. No. 1996 took effect only on March 3, 1988, following the lapse of seven days after its publication as required by RA No. 6646, otherwise known as the Electoral Reform Law of 1987, which became effective on January 5,1988. Its Section 30 provides in part: Sec. 30. Effectivity of Regulations and Orders of the Commission. — The rules and regulations promulgated by the Commission shall take effect on the seventh day after their publication in the Official Gazette or in at least (2) daily newspapers of general circulation in the Philippines. The Court has considered the arguments of the parties and holds that the petition for quo warranto was filed on time. We agree with the respondents that the fee was paid during the tenday period as extended by the pendency of the petition when it was treated by the COMELEC as a pre-proclamation proceeding which did not require the payment of a filing fee. At that, we reach this conclusion only on the assumption that the requirement for the payment of the fees in quo warranto proceedings was already effective. There is no record that Res. No. 1450 was even published; and as for Res. No. 1996, this took effect only on March 3, 1988, seven days after its publication in the February 25, 1988 issues of the Manila Chronicle and the Philippine Daily Inquirer, or after the petition was filed. cdasia The petitioner forgets Tañada v. Tuvera 4 when he argues that the resolutions became effective "immediately upon approval" simply because it was so provided therein. We held in that

case that publication was still necessary under the due process clause despite such effectivity clause. In any event, what is important is that the filing fee was paid, and whatever delay there may have been is not imputable to the private respondent's fault or neglect. It is true that in the Manchester Case, we required the timely payment of the filing fee as a precondition for the timeliness of the filing of the case itself. In Sun Insurance Office, Ltd. v. Asuncion, 5 however, this Court, taking into account the special circumstances of that case, declared: This Court reiterates the rule that the trial court acquires jurisdiction over a case only upon the payment of the prescribed filing fee. However, the court may allow the payment of the said fee within a reasonable time. In the event of non-compliance therewith, the case shall be dismissed. The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted on June 20, 1988, thus: Sec. 18. Non-payment of prescribed fees. — If the fees above prescribed are not paid, the Commission may refuse to take action thereon until they are paid and may dismiss the action or the proceeding. (Emphasis supplied.) The Court notes that while arguing the technical point that the petition for quo warranto should be dismissed for failure to pay the filing fee ontime, the petitioner would at the same time minimize his alleged lack of citizenship as "a futile technicality." It is regrettable, to say the least, that the requirement of citizenship as a qualification for public office can be so demeaned. what is worse is that it is regarded as an even less important consideration than the reglementary period the petitioner insists upon. This matter should normally end here as the sole issue originally raised by the petitioner is the timeliness of the quo warranto proceedings against him. However, as his citizenship is the subject of that proceeding, and considering the necessity for an early resolution of that more important question clearly and urgently affecting the public interest, we shall directly address it now in this same action. The Court has similarly acted in a notable number of cases, thus: From the foregoing brief statement of the nature of the instant case, it would appear that our sole function in this proceeding should be to resolve the single issue of whether or not the Court of Appeals erred in ruling that the motion for new trial of the GSIS in question should indeed be deemed pro forma. But going over the extended pleadings of both parties, the Court is immediately impressed that substantial justice may not be timely achieved, if we should decide this case upon such a technical ground alone. We have carefully read all the allegations and arguments of the parties, very ably and comprehensively expounded by evidently knowledgeable and unusually competent counsel, and we feel we can better serve the interests of justice by broadening the scope of our inquiry, for as the record before us stands, we see that there is enough basis for us to end the basic controversy between the parties here and now, dispensing, however, with procedural steps which would not anyway affect substantially the merits of their respective claims. 6 xxx xxx xxx While it is the fault of the petitioner for appealing to the wrong court and thereby allowing the period for appeal to lapse, the more correct procedure was for the respondent court to forward the case to the proper court which was the Court of Appeals for appropriate action. Considering, however, the length of time that this case has been pending, we apply the rule in the case of Del Castillo v. Jaymalin, (112

SCRA 629) and follow the principle enunciated in Alger Electric, Inc. v. Court of Appeals, (135 SCRA 37) which states: ". . . it is a cherished rule of procedure for this Court to always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation. No useful purpose will be served if this case is remanded to the trial court only to have its decision raised again to the Intermediate Appellate Court and from there to this Court." (p. 43) Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al. (G.R. No. 50141, January 29,1988), we stated that: ". . . But all those relevant facts are now before this Court. And those facts dictate the rendition of a verdict in the petitioner's favor. There is therefore no point in referring the case back to the Court of Appeals. The facts and the legal propositions involved will not change, nor should the ultimate judgment. Considerable time has already elapsed and, to serve the ends of justice, it is time that the controversy is finally laid to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v. Paredes, 108 Phil. 57; Lianga Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v. Heirs of Chigas, 98 SCRA 575; Francisco v. City of Davao, 12 SCRA 628; Valencia v. Mabilangan, 105 Phil. 162). 'Sound practice seeks to accommodate the theory which avoids waste of time, effort and expense, both to the parties and the government, not to speak of delay in the disposal of the case (of: Fernandez v. Garcia, 92 Phil. 592, 597). A marked characteristic of our judicial set-up is that where the dictates of justice so demand . . . the Supreme Court should act, and act with finality.' (Li Siu Liat v. Republic, 21 SCRA 1039, 1046, citing Samal v. CA, 99 Phil. 230 and U.S. v. Gimenez, 34 Phil. 74). In this case, the dictates of justice do demand that this Court act, and act with finality." 7 xxx xxx xxx Remand of the case to the lower court for further reception of evidence is not necessary where the court is in a position to resolve the dispute based onthe records before it. On many occasions, the Court, in the public interest and the expeditious administration of justice, has resolved actions on the merits instead of remanding them to the trial court for further proceedings, such as where the ends of justice would not be subserved by the remand of the case or when public interest demands an early disposition of the case or where the trial court had already received all the evidence of the parties. 8

This course of action becomes all the more justified in the present case where, to repeat for stress, it is claimed that a foreigner is holding a public office. We also note in his Reply, the petitioner says: In adopting private respondent's comment, respondent COMELEC implicitly adopted as "its own" private respondent's repeated assertion that petitioner is no longer a Filipino citizen. In so doing, has not respondent COMELEC effectively disqualified itself, by reason of prejudgment, from resolving the petition for quo warranto filed by private respondent still pending before it? 9 This is still another reason why the Court has seen fit to rule directly on the merits of this case.

Going over the record, we find that there are two administrative decisions on the question of the petitioner's citizenship. The first was rendered by the Commission on Elections on May 12, 1982, and found the petitioner to be a citizen of the Philippines. 10 The second was rendered by the Commissionon Immigration and Deportation on September 13, 1988, and held that the petitioner was not a citizen of the Philippines. 11 The first decision was penned by then COMELEC Chairman Vicente Santiago, Jr., with Commissioners Pabalate, Savellano and Opinion concurring in full and Commissioner Bacungan concurring in the dismissal of the petition "without prejudice to the issue of the respondent's citizenship being raised a new in a proper case. "Commissioner Sagadraca reserved his vote, while Commissioner Felipe was for deferring decision until representations shall have been made with the Australian Embassy for official verification of the petitioner's alleged naturalization as an Australian. The second decision was unanimously rendered by Chairman Miriam Defensor-Santiago and Commissioners Alano and Geraldez of theCommission on Immigration and Deportation. prLL It is important to observe that in the proceeding before the COMELEC, there was no direct proof that the herein petitioner had been formally naturalized as a citizen of Australia. This conjecture, which was eventually rejected, was merely inferred from the fact that he had married an Australian citizen, obtained an Australian passport, and registered as en alien with the CID upon his return to this country in 1980. On the other hand, the decision of the CID took into account the official statement of the Australian Government dated August 12, 1984, through its Consul in the Philippines, that the petitioner was still an Australian citizen as of that date by reason of his naturalization in 1976. That statement 12 is reproduced in full as follows: I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a certificate of appointment signed and sealed by the Australian Minister of State for Foreign Affairs on 19 October 1983, and recognized as such by Letter of Patent signed and sealed by the Philippines Acting Minister of Foreign Affairs on 23 November 1983, do hereby provide the following statement in response to the Subpoena Testificandum dated 9 April 1984 in regard to the Petition for disqualification against RAMON LABO, JR. Y LOZANO (SPC No. 84-73). and do hereby certify that the statement is true and correct. STATEMENT A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in the Philippines to an Australian citizen. As the spouse of an Australian citizen, he was not required to meet normal requirements for the grant of citizenship and was granted Australian citizenship by Sydney on 28 July 1976. B) Any person over the age of 16 years who is granted Australian citizenship must take an oath of allegiance or make an affirmation of allegiance. The wording of the oath of affirmation is: "I. . . ., renouncing all other allegiance . . . .," etc. This need not necessarily have any effect on his former nationality as this would depend on the citizenship laws of his former country. C) The marriage was declared void in the Australian Federal Court in Sydney on 27 June 1980 on the ground that the marriage had been bigamous. D) According to our records LABO is still an Australian citizen. E) Should he return to Australia, LABO may face court action in respect of Section 50 of Australian Citizenship Act 1948 which relates to the giving of false or misleading information of a material nature in respect of an application for Australian citizenship. If

such a prosecution was successful, he could be deprived of Australian citizenship under Section 21 of the Act. F) There are two further ways in which LABO could divest himself of Australian citizenship: (i) He could make a declaration of Renunciation of Australian citizenship under Section 18 of the Australian Citizenship Act, or (ii) If he acquired another nationality, (for example, Filipino) by a formal end voluntary act other than marriage, then he would automatically lose his Australian citizenship under Section 17 of the Act. IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF THE AUSTRALIAN EMBASSY, MANILA, THIS 12TH DAY OF APRIL 1984. DONE AT MANILA IN THE PHILIPPINES. (Signed) GRAHAM C. WEST Consul This was affirmed later by the letter of February 1, 1988, addressed to the private respondent by the Department of Foreign Affairs reading as follows: 13 Sir: With reference to your letter dated 1 February 1988, I wish to inform you that inquiry made with the Australian Government through the Embassy of the Philippines in Canberra has elicited the following information: 1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976. 2) That prior to 17 July 1986, a candidate for Australian citizenship had to either swear an oath of allegiance or make an affirmation of allegiance which carries a renunciation of "all other allegiance." Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO SEVERINO, JR Assistant Secretary The decision also noted the oath of allegiance taken by every naturalized Australian reading as follows: OATH OF ALLEGIANCE I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully observe the laws of Australia and fulfill my duties as an Australian citizen. 14 and the Affirmation of Allegiance, which declares: AFFIRMATION OF ALLEGIANCE

I, A.B., renouncing all other allegiance, solemnly and sincerely promise and declare that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully observe the Laws of Australia and fulfill my duties as an Australian citizen. 15 The petitioner does not question the authenticity of the above evidence. Neither does he deny that he obtained Australian Passport No. 754705, which he used in coming back to the Philippines in 1980, when he declared before the immigration authorities that he was an alien and registered as such under Alien Certificate of Registration No. B-323985. 16 He later asked for the change of his status from immigrant to a returning former Philippine citizen and was granted Immigrant Certificate of Residence No. 223809. 17 He also categorically declared that he was a citizen of Australia in a number of sworn statements voluntarily made by him and. even sought to avoid the jurisdiction of the barangay court on the ground that he was a foreigner. 18 The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes" that did not divest the petitioner of his citizenship, although, as earlier noted, not all the member joined in this finding. We reject this ruling as totally baseless. The petitioner is not an unlettered person who was not aware of the consequences of his acts, let alone the fact that he was assisted by counsel when he performed these acts. The private respondent questions the motives of the COMELEC at that time and stresses Labo's political affiliation with the party in power then, but we need not go into that now. There is also the claim that the decision can no longer be reversed because of the doctrine of res judicata, but this too must be dismissed. This doctrine does not apply to questions of citizenship, as the Court has ruled in several cases. 19 Moreover, it does not appear that it was properly and seasonably pleaded, in a motion to dismiss or in the answer, having been invoked only when the petitioner filed his reply 20 to the private respondent's comment. Besides, one of the requisites of res judicata, to wit, identity of parties, is not present in this case. The petitioner's contention that his marriage to an Australian national in 1976 did not automatically divest him of Philippine citizenship is irrelevant. There is no claim or finding that he automatically ceased to be a Filipino because of that marriage. He became a citizen of Australia because he was naturalized as such through a formal and positive process, simplified in his case because he was married to an Australian citizen. As a condition for such naturalization, he formally took the Oath of Allegiance and/or made the Affirmation of Allegiance, both quoted above. Renouncing all other allegiance, he swore "to be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia. . . . , and to fulfill his duties as an Australian citizen." cdll The petitioner now claims that his naturalization in Australia made him at worst only a dual national and did not divest him of his Philippine citizenship. Such a specious argument cannot stand against the clear provisions of CA No. 63, which enumerates the modes by which Philippine citizenship may be lost. Among these are: (1) naturalization in a foreign country; (2) express renunciation of citizenship; and (3) subscribing to an oath of allegiance to support the Constitution or laws of a foreign country, all of which are applicable to the petitioner. It is also worth mentioning in this connection that under Article IV, Section 5, of the present Constitution, "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law." Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled after it was found that his marriage to the Australian citizen was bigamous, that circumstance alone did not automatically restore his Philippine citizenship. His divestiture of Australian citizenship does not concern us here. That is a matter between him and his adopted country. What we must consider is the fact that he voluntarily and freely rejected Philippine citizenship and willingly and knowingly embraced the citizenship of a foreign country. The

possibility that he may have been subsequently rejected by Australia, as he claims, does not mean that he has been automatically reinstated as a citizen of the Philippines. Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. It does not appear in the record, nor does the petitioner claim, that he has reacquired Philippine citizenship by any of these methods. He does not point to any judicial decree of naturalization as to any statute directly conferring Philippine citizenship upon him. Neither has he shown that he has complied with PD No. 725, providing that: . . . (2) natural-born Filipinos who have lost their Philippine citizenship may reacquire Philippine citizenship through repatriation by applying with the Special Committee on Naturalization created by Letter of Instruction No. 270, and, if their applications are approved, taking the necessary oath of allegiance to the Republic of the Philippines, after which they shall be deemed to have reacquired Philippine citizenship. The Commission on Immigration and Deportation shall thereupon cancel their certificate of registration. (Emphasis supplied.) That is why the Commission on Immigration and Deportation rejected his application for the cancellation of his alien certificate of registration. And that is also the reason we must deny his present claim for recognition as a citizen of the Philippines. The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen of the Philippines. In fact, he was not even a qualified voter under the Constitution itself because of his alienage. 21 He was therefore ineligible as a candidate for mayor of Baguio City under Section 42 of the Local Government Code providing in material part as follows: Sec. 42. Qualifications. — (1) An elective local official must be a citizen of the Philippines, at least twenty-three years of age on election day, a qualified voter registered as such in the barangay, municipality, city or province where he proposes to be elected, a resident therein for at least one year at the time of the filing of his certificate of candidacy, and able to read and write English, Pilipino, or any other local language or dialect. The petitioner argues that his alleged lack of citizenship is a "futile technicality" that should not frustrate the will of the electorate of Baguio City who elected him by a "resonant and thunderous majority." To be accurate, it was not as loud as all that, for his lead over the secondplacer was only about 2,100 votes. In any event, the people of that locality could not have, even unanimously, changed the requirements of the Local Government Code and the Constitution. The electorate had no power to permit a foreigner owing his total allegiance to the Queen of Australia, or at least a stateless individual owing no allegiance to the Republic of the Philippines, to preside over them as mayor of their city. Only citizens of the Philippines have that privilege over their countrymen. The probability that many of those who voted for the petitioner may have done so in the belief that he was qualified only strengthens the conclusion that the results of the election cannot nullify the qualifications for the office now held by him. These qualifications are continuing requirements; once any of them is lost during incumbency, title to the office itself is deemed forfeited. In the case at bar, the citizenship and voting requirements were not subsequently lost but were not possessed at all in the first place on the day of the election. The petitioner was disqualified from running as mayor and, although elected, is not now qualified to serve as such. LLpr Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he

obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City. The latest ruling of the Court on this issue is Santos v. Commission on Elections, 22 decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were all disregarded as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then, 23 with three dissenting 24 and another two reserving their vote.25 One was on official leave. 26 Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, 27 which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio vs. Paredes, 28 was supported by ten members of the Court, 29 without any dissent, although one reserved his vote, 30 another took no part, 31 and two others were an leave.32 There the Court held: ". . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676.) The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. It remains to stress that the citizen of the Philippines must take pride in his status as such and cherish this priceless gift that, out of more than a hundred other nationalities, God has seen fit to grant him. Having been so endowed, he must not lightly yield this precious advantage, rejecting it for another land that may offer him material and other attractions that he may not find in his own country. To be sure, he has the right to renounce the Philippines if he sees fit and transfer his allegiance to a state with more allurements for him. 33 But having done so, he cannot expect to be welcomed back with open arms once his taste for his adopted country turns sour or he is himself disowned by it as an undesirable alien. Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It may be restored only after the returning renegade makes a formal act of rededication to the country he has abjured and he solemnly affirms once again his total and exclusive loyalty to the Republic of the Philippines. This may not be accomplished by election to public office. WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the Philippines and therefore DISQUALIFIED from continuing to serve as Mayor of Baguio City. He is

ordered to VACATE his office and surrender the same to the Vice-Mayor of Baguio City once this decision becomes final and executory. The temporary restraining order dated January 31, 1989, is LIFTED. ||| (Labo, Jr. v. Commission on Elections, G.R. No. 86564, [August 1, 1989], 257 PHIL 1-23) [G.R. No. 195649. April 16, 2013.] CASAN MACODE MAQUILING, petitioner, vs. COMMISSION ON ELECTIONS, ROMMEL ARNADO n y CAGOCO, LINOG G. BALUA,respondents.

DECISION

SERENO, C.J p: THE CASE This is a Petition for Certiorari under Rule 64 in conjunction with Rule 65 of the Rules of Court to review the Resolutions of the Commission on Elections (COMELEC). The Resolution 1 in SPA No. 10-109(DC) of the COMELEC First Division dated 5 October 2010 is being assailed for applying Section 44 of the Local Government Code while the Resolution 2 of the COMELEC En Banc dated 2 February 2011 is being questioned for finding that respondent Rommel Arnado y Cagoco (respondent Arnado/Arnado) is solely a Filipino citizen qualified to run for public office despite his continued use of a U.S. passport. AIDcTE FACTS Respondent Arnado is a natural born Filipino citizen. 3 However, as a consequence of his subsequent naturalization as a citizen of the United States of America, he lost his Filipino citizenship. Arnado applied for repatriation under Republic Act (R.A.) No. 9225 before the Consulate General of the Philippines in San Franciso, USA and took the Oath of Allegiance to the Republic of the Philippines on 10 July 2008. 4 On the same day an Order of Approval of his Citizenship Retention and Re-acquisition was issued in his favor. 5 The aforementioned Oath of Allegiance states: I, Rommel Cagoco Arnado, solemnly swear that I will support and defend the Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines and I hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion. 6 On 3 April 2009 Arnado again took his Oath of Allegiance to the Republic and executed an Affidavit of Renunciation of his foreign citizenship, which states: I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and perpetually renounce all allegiance and fidelity to the UNITED STATES OF AMERICA of which I am a citizen, and I divest myself of full employment of all civil and political rights and privileges of the United States of America.

I solemnly swear that all the foregoing statement is true and correct to the best of my knowledge and belief. 7 On 30 November 2009, Arnado filed his Certificate of Candidacy for Mayor of Kauswagan, Lanao del Norte, which contains, among others, the following statements: I am a natural born Filipino citizen/naturalized Filipino citizen. I am not a permanent resident of, or immigrant to, a foreign country. ITcCaS I am eligible for the office I seek to be elected to. I will support and defend the Constitution of the Republic of the Philippines and will maintain true faith and allegiance thereto. I will obey the laws, legal orders and decrees promulgated by the duly constituted authorities. I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion. 8 On 28 April 2010, respondent Linog C. Balua (Balua), another mayoralty candidate, filed a petition to disqualify Arnado and/or to cancel his certificate of candidacy for municipal mayor of Kauswagan, Lanao del Norte in connection with the 10 May 2010 local and national elections. 9Respondent Balua contended that Arnado is not a resident of Kauswagan, Lanao del Norte and that he is a foreigner, attaching thereto a certification issued by the Bureau of Immigration dated 23 April 2010 indicating the nationality of Arnado as "USA-American." 10 To further bolster his claim of Arnado's US citizenship, Balua presented in his Memorandum a computer-generated travel record 11 dated 03 December 2009 indicating that Arnado has been using his US Passport No. 057782700 in entering and departing the Philippines. The said record shows that Arnado left the country on 14 April 2009 and returned on 25 June 2009, and again departed on 29 July 2009, arriving back in the Philippines on 24 November 2009. Balua likewise presented a certification from the Bureau of Immigration dated 23 April 2010, certifying that the name "Arnado, Rommel Cagoco" appears in the available Computer Database/Passenger manifest/IBM listing on file as of 21 April 2010, with the following pertinent travel records: DATE OF Arrival NATIONALITY PASSPORT

: : :

01/12/2010 USA-AMERICAN 057782700

DATE OF Arrival NATIONALITY PASSPORT

: : :

03/23/2010 USA-AMERICAN 057782700 12

On 30 April 2010, the COMELEC (First Division) issued an Order 13 requiring the respondent to personally file his answer and memorandum within three (3) days from receipt thereof. After Arnado failed to answer the petition, Balua moved to declare him in default and to present evidence ex-parte. cSIADa Neither motion was acted upon, having been overtaken by the 2010 elections where Arnado garnered the highest number of votes and was subsequently proclaimed as the winning candidate for Mayor of Kauswagan, Lanao del Norte.

It was only after his proclamation that Arnado filed his verified answer, submitting the following documents as evidence: 14 1.

Affidavit of Renunciation and Oath of Allegiance to the Republic of the Philippines dated 03 April 2009;

2.

Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia Branzuela, Leoncio Daligdig, and Jessy Corpin, all neighbors of Arnado, attesting that Arnado is a long-time resident of Kauswagan and that he has been conspicuously and continuously residing in his family's ancestral house in Kauswagan;

3.

Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao del Norte dated 03 June 2010 stating that Arnado is a bona fide resident of his barangay and that Arnado went to the United States in 1985 to work and returned to the Philippines in 2009;

4.

Certification dated 31 May 2010 from the Municipal Local Government Operations Office of Kauswagan stating that Dr. Maximo P. Arnado, Sr. served as Mayor of Kauswagan, from January 1964 to June 1974 and from 15 February 1979 to 15 April 1986; and

5.

Voter Certification issued by the Election Officer of Kauswagan certifying that Arnado has been a registered voter of Kauswagan since 03 April 2009. THE RULING OF THE COMELEC FIRST DIVISION

Instead of treating the Petition as an action for the cancellation of a certificate of candidacy based on misrepresentation, 15 the COMELEC First Division considered it as one for disqualification. Balua's contention that Arnado is a resident of the United States was dismissed upon the finding that "Balua failed to present any evidence to support his contention," 16 whereas the First Division still could "not conclude that Arnado failed to meet the one-year residency requirement under the Local Government Code." 17 In the matter of the issue of citizenship, however, the First Division disagreed with Arnado's claim that he is a Filipino citizen. 18 AHCETa We find that although Arnado appears to have substantially complied with the requirements of R.A. No. 9225, Arnado's act of consistently using his US passport after renouncing his US citizenship on 03 April 2009 effectively negated his Affidavit of Renunciation. xxx xxx xxx Arnado's continued use of his US passport is a strong indication that Arnado had no real intention to renounce his US citizenship and that he only executed an Affidavit of Renunciation to enable him to run for office. We cannot turn a blind eye to the glaring inconsistency between Arnado's unexplained use of a US passport six times and his claim that he re-acquired his Philippine citizenship and renounced his US citizenship. As noted by the Supreme Court in the Yu case, "[a] passport is defined as an official document of identity and nationality issued to a person intending to travel or sojourn in foreign countries." Surely, one who truly divested himself of US citizenship would not continue to avail of privileges reserved solely for US nationals. 19 The dispositive portion of the Resolution rendered by the COMELEC First Division reads:

WHEREFORE, in view of the foregoing, the petition for disqualification and/or to cancel the certificate of candidacy of Rommel C. Arnado is herebyGRANTED. Rommel C. Arnado's proclamation as the winning candidate for Municipal Mayor of Kauswagan, Lanao del Norte is hereby ANNULLED. Let the order of succession under Section 44 of the Local Government Code of 1991 take effect. 20 The Motion for Reconsideration and the Motion for Intervention Arnado sought reconsideration of the resolution before the COMELEC En Banc on the ground that "the evidence is insufficient to justify the Resolution and that the said Resolution is contrary to law." 21 He raised the following contentions: 22 1.

The finding that he is not a Filipino citizen is not supported by the evidence consisting of his Oath of Allegiance and the Affidavit of Renunciation, which show that he has substantially complied with the requirements of R.A. No. 9225; cCSTHA

2.

The use of his US passport subsequent to his renunciation of his American citizenship is not tantamount to a repudiation of his Filipino citizenship, as he did not perform any act to swear allegiance to a country other than the Philippines;

3.

He used his US passport only because he was not informed of the issuance of his Philippine passport, and that he used his Philippine passport after he obtained it;

4.

Balua's petition to cancel the certificate of candidacy of Arnado was filed out of time, and the First Division's treatment of the petition as one for disqualification constitutes grave abuse of discretion amounting to excess of jurisdiction; 23

5.

He is undoubtedly the people's choice as indicated by his winning the elections;

6.

His proclamation as the winning candidate ousted the COMELEC from jurisdiction over the case; and

7.

The proper remedy to question his citizenship is through a petition for quo warranto, which should have been filed within ten days from his proclamation.

Petitioner Casan Macode Maquiling (Maquiling), another candidate for mayor of Kauswagan, and who garnered the second highest number of votes in the 2010 elections, intervened in the case and filed before the COMELEC En Banc a Motion for Reconsideration together with an Opposition to Arnado's Amended Motion for Reconsideration. Maquiling argued that while the First Division correctly disqualified Arnado, the order of succession under Section 44 of the Local Government Code is not applicable in this case. Consequently, he claimed that the cancellation of Arnado's candidacy and the nullification of his proclamation, Maquiling, as the legitimate candidate who obtained the highest number of lawful votes, should be proclaimed as the winner. Maquiling simultaneously filed his Memorandum with his Motion for Intervention and his Motion for Reconsideration. Arnado opposed all motions filed by Maquiling, claiming that intervention is prohibited after a decision has already been rendered, and that as a second-placer, Maquiling undoubtedly lost the elections and thus does not stand to be prejudiced or benefitted by the final adjudication of the case. EaTCSA RULING OF THE COMELEC EN BANC

In its Resolution of 02 February 2011, the COMELEC En Banc held that under Section 6 of Republic Act No. 6646, the Commission "shall continue with the trial and hearing of the action, inquiry or protest even after the proclamation of the candidate whose qualifications for office is questioned." As to Maquiling's intervention, the COMELEC En Banc also cited Section 6 of R.A. No. 6646 which allows intervention in proceedings for disqualification even after elections if no final judgment has been rendered, but went on further to say that Maquiling, as the second placer, would not be prejudiced by the outcome of the case as it agrees with the dispositive portion of the Resolution of the First Division allowing the order of succession under Section 44 of the Local Government Code to take effect. The COMELEC En Banc agreed with the treatment by the First Division of the petition as one for disqualification, and ruled that the petition was filed well within the period prescribed by law, 24 having been filed on 28 April 2010, which is not later than 11 May 2010, the date of proclamation. However, the COMELEC En Banc reversed and set aside the ruling of the First Division and granted Arnado's Motion for Reconsideration, on the following premises: First: By renouncing his US citizenship as imposed by R.A. No. 9225, the respondent embraced his Philippine citizenship as though he never became a citizen of another country. It was at that time, April 3, 2009, that the respondent became a pure Philippine Citizen again. xxx xxx xxx The use of a US passport [. . .] does not operate to revert back his status as a dual citizen prior to his renunciation as there is no law saying such. More succinctly, the use of a US passport does not operate to "un-renounce" what he has earlier on renounced. The First Division's reliance in the case of In Re: Petition for Habeas Corpus of Willy Yu v. Defensor-Santiago, et al. is misplaced. The petitioner in the said case is a naturalized citizen who, after taking his oath as a naturalized Filipino, applied for the renewal of his Portuguese passport. Strict policy is maintained in the conduct of citizens who are not natural born, who acquire their citizenship by choice, thus discarding their original citizenship. The Philippine State expects strict conduct of allegiance to those who choose to be its citizens. In the present case, respondent is not a naturalized citizen but a natural born citizen who chose greener pastures by working abroad and then decided to repatriate to supposedly help in the progress of Kauswagan. He did not apply for a US passport after his renunciation. Thus the mentioned case is not on all fours with the case at bar. HEacAS xxx xxx xxx The respondent presented a plausible explanation as to the use of his US passport. Although he applied for a Philippine passport, the passport was only issued on June 18, 2009. However, he was not notified of the issuance of his Philippine passport so that he was actually able to get it about three (3) months later. Yet as soon as he was in possession of his Philippine passport, the respondent already used the same in his subsequent travels abroad. This fact is proven by the respondent's submission of a certified true copy of his passport showing that he used the same for his travels on the following dates: January 31, 2010, April 16, 2010, May 20, 2010, January 12, 2010, March 31, 2010 and June 4, 2010. This then shows that the use of the US passport was because to his knowledge, his Philippine

passport was not yet issued to him for his use. As probably pressing needs might be undertaken, the respondent used whatever is within his control during that time. 25 In his Separate Concurring Opinion, COMELEC Chairman Sixto Brillantes cited that the use of foreign passport is not one of the grounds provided for under Section 1 of Commonwealth Act No. 63 through which Philippine citizenship may be lost. "[T]he application of the more assimilative principle of continuity of citizenship is more appropriate in this case. Under said principle, once a person becomes a citizen, either by birth or naturalization, it is assumed that he desires to continue to be a citizen, and this assumption stands until he voluntarily denationalizes or expatriates himself. Thus, in the instant case respondent after reacquiring his Philippine citizenship should be presumed to have remained a Filipino despite his use of his American passport in the absence of clear, unequivocal and competent proof of expatriation. Accordingly, all doubts should be resolved in favor of retention of citizenship." 26 On the other hand, Commissioner Rene V. Sarmiento dissented, thus: cDACST [R]espondent evidently failed to prove that he truly and wholeheartedly abandoned his allegiance to the United States. The latter's continued use of his US passport and enjoyment of all the privileges of a US citizen despite his previous renunciation of the afore-mention[ed] citizenship runs contrary to his declaration that he chose to retain only his Philippine citizenship. Respondent's submission with the twin requirements was obviously only for the purpose of complying with the requirements for running for the mayoralty post in connection with the May 10, 2010 Automated National and Local Elections. Qualifications for elective office, such as citizenship, are continuing requirements; once any of them is lost during his incumbency, title to the office itself is deemed forfeited. If a candidate is not a citizen at the time he ran for office or if he lost his citizenship after his election to office, he is disqualified to serve as such. Neither does the fact that respondent obtained the plurality of votes for the mayoralty post cure the latter's failure to comply with the qualification requirements regarding his citizenship. Since a disqualified candidate is no candidate at all in the eyes of the law, his having received the highest number of votes does not validate his election. It has been held that where a petition for disqualification was filed before election against a candidate but was adversely resolved against him after election, his having obtained the highest number of votes did not make his election valid. His ouster from office does not violate the principle ofvox populi suprema est lex because the application of the constitutional and statutory provisions on disqualification is not a matter of popularity. To apply it is to breath[e] life to the sovereign will of the people who expressed it when they ratified the Constitution and when they elected their representatives who enacted the law. 27 THE PETITION BEFORE THE COURT Maquiling filed the instant petition questioning the propriety of declaring Arnado qualified to run for public office despite his continued use of a US passport, and praying that Maquiling be proclaimed as the winner in the 2010 mayoralty race in Kauswagan, Lanao del Norte. cHECAS Ascribing both grave abuse of discretion and reversible error on the part of the COMELEC En Banc for ruling that Arnado is a Filipino citizen despite his continued use of a US passport,

Maquiling now seeks to reverse the finding of the COMELEC En Banc that Arnado is qualified to run for public office. Corollary to his plea to reverse the ruling of the COMELEC En Banc or to affirm the First Division's disqualification of Arnado, Maquiling also seeks the review of the applicability of Section 44 of the Local Government Code, claiming that the COMELEC committed reversible error in ruling that "the succession of the vice mayor in case the respondent is disqualified is in order." ISSUES There are three questions posed by the parties before this Court which will be addressed seriatim as the subsequent questions hinge on the result of the first. The first question is whether or not intervention is allowed in a disqualification case. The second question is whether or not the use of a foreign passport after renouncing foreign citizenship amounts to undoing a renunciation earlier made. A better framing of the question though should be whether or not the use of a foreign passport after renouncing foreign citizenship affects one's qualifications to run for public office. The third question is whether or not the rule on succession in the Local Government Code is applicable to this case. OUR RULING Intervention of a rival candidate in a disqualification case is proper when there has not yet been any proclamation of the winner. Petitioner Casan Macode Maquiling intervened at the stage when respondent Arnado filed a Motion for Reconsideration of the First Division Resolution before the COMELEC En Banc. As the candidate who garnered the second highest number of votes, Maquiling contends that he has an interest in the disqualification case filed against Arnado, considering that in the event the latter is disqualified, the votes cast for him should be considered stray and the second-placer should be proclaimed as the winner in the elections. ITaESD It must be emphasized that while the original petition before the COMELEC is one for cancellation of the certificate of candidacy and/or disqualification, the COMELEC First Division and the COMELEC En Banc correctly treated the petition as one for disqualification. The effect of a disqualification case is enunciated in Section 6 of R.A. No. 6646: 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. Mercado v. Manzano 28 clarified the right of intervention in a disqualification case. In that case, the Court said: That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private respondent is clear from Section 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which provides: Any

candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final judgment rendered. 29 Clearly then, Maquiling has the right to intervene in the case. The fact that the COMELEC En Banc has already ruled that Maquiling has not shown that the requisites for the exemption to the second-placer rule set forth in Sinsuat v. COMELEC 30 are present and therefore would not be prejudiced by the outcome of the case, does not deprive Maquiling of the right to elevate the matter before this Court. CIETDc Arnado's claim that the main case has attained finality as the original petitioner and respondents therein have not appealed the decision of the COMELEC En Banc, cannot be sustained. The elevation of the case by the intervenor prevents it from attaining finality. It is only after this Court has ruled upon the issues raised in this instant petition that the disqualification case originally filed by Balua against Arnado will attain finality. The use of foreign passport after renouncing one's foreign citizenship is a positive and voluntary act of representation as to one's nationality and citizenship; it does not divest Filipino citizenship regained by repatriation but it recants the Oath of Renunciation required to qualify one to run for an elective position. Section 5 (2) of The Citizenship Retention and Re-acquisition Act of 2003 provides: Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: xxx xxx xxx (2) Those seeking elective public in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath. . . . 31 Rommel Arnado took all the necessary steps to qualify to run for a public office. He took the Oath of Allegiance and renounced his foreign citizenship. There is no question that after performing these twin requirements required under Section 5 (2) of R.A. No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003, he became eligible to run for public office. HCEcaT Indeed, Arnado took the Oath of Allegiance not just only once but twice: first, on 10 July 2008 when he applied for repatriation before the Consulate General of the Philippines in San Francisco, USA, and again on 03 April 2009 simultaneous with the execution of his Affidavit of

Renunciation. By taking the Oath of Allegiance to the Republic, Arnado re-acquired his Philippine citizenship. At the time, however, he likewise possessed American citizenship. Arnado had therefore become a dual citizen. After reacquiring his Philippine citizenship, Arnado renounced his American citizenship by executing an Affidavit of Renunciation, thus completing the requirements for eligibility to run for public office. By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen, regardless of the effect of such renunciation under the laws of the foreign country. 32 However, this legal presumption does not operate permanently and is open to attack when, after renouncing the foreign citizenship, the citizen performs positive acts showing his continued possession of a foreign citizenship. 33 Arnado himself subjected the issue of his citizenship to attack when, after renouncing his foreign citizenship, he continued to use his US passport to travel in and out of the country before filing his certificate of candidacy on 30 November 2009. The pivotal question to determine is whether he was solely and exclusively a Filipino citizen at the time he filed his certificate of candidacy, thereby rendering him eligible to run for public office. Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November 2009, the date he filed his COC, he used his US passport four times, actions that run counter to the affidavit of renunciation he had earlier executed. By using his foreign passport, Arnado positively and voluntarily represented himself as an American, in effect declaring before immigration authorities of both countries that he is an American citizen, with all attendant rights and privileges granted by the United States of America. The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time, only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign citizenship and a full divestment of all civil and political rights granted by the foreign country which granted the citizenship. cSIHCA Mercado v. Manzano 34 already hinted at this situation when the Court declared: His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, we sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in commercial documents executed abroad that he was a Portuguese national. A similar sanction can be taken against anyone who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act constituting renunciation of his Philippine citizenship. While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act No. 63 constituting renunciation and loss of Philippine citizenship, 35 it is nevertheless an act which repudiates the very oath of renunciation required for a former Filipino citizen who is also a citizen of another country to be qualified to run for a local elective position. When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced his American citizenship, he recanted his Oath of Renunciation 36 that he "absolutely and perpetually renounce(s) all allegiance and fidelity to the UNITED STATES OF AMERICA" 37 and that he "divest(s) [him]self of full employment of all civil and political rights and privileges of the United States of America." 38

We agree with the COMELEC En Banc that such act of using a foreign passport does not divest Arnado of his Filipino citizenship, which he acquired by repatriation. However, by representing himself as an American citizen, Arnado voluntarily and effectively reverted to his earlier status as a dual citizen. Such reversion was not retroactive; it took place the instant Arnado represented himself as an American citizen by using his US passport. This act of using a foreign passport after renouncing one's foreign citizenship is fatal to Arnado's bid for public office, as it effectively imposed on him a disqualification to run for an elective local position. HcSCED Arnado's category of dual citizenship is that by which foreign citizenship is acquired through a positive act of applying for naturalization. This is distinct from those considered dual citizens by virtue of birth, who are not required by law to take the oath of renunciation as the mere filing of the certificate of candidacy already carries with it an implied renunciation of foreign citizenship. 39 Dual citizens by naturalization, on the other hand, are required to take not only the Oath of Allegiance to the Republic of the Philippines but also to personally renounce foreign citizenship in order to qualify as a candidate for public office. By the time he filed his certificate of candidacy on 30 November 2009, Arnado was a dual citizen enjoying the rights and privileges of Filipino and American citizenship. He was qualified to vote, but by the express disqualification under Section 40 (d) of the Local Government Code, 40 he was not qualified to run for a local elective position. In effect, Arnado was solely and exclusively a Filipino citizen only for a period of eleven days, or from 3 April 2009 until 14 April 2009, on which date he first used his American passport after renouncing his American citizenship. This Court has previously ruled that: Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. . . . . 41 The citizenship requirement for elective public office is a continuing one. It must be possessed not just at the time of the renunciation of the foreign citizenship but continuously. Any act which violates the oath of renunciation opens the citizenship issue to attack. We agree with the pronouncement of the COMELEC First Division that "Arnado's act of consistently using his US passport effectively negated his "Affidavit of Renunciation." 42 This does not mean, that he failed to comply with the twin requirements under R.A. No. 9225, for he in fact did. It was aftercomplying with the requirements that he performed positive acts which effectively disqualified him from running for an elective public office pursuant toSection 40 (d) of the Local Government Code of 1991. The purpose of the Local Government Code in disqualifying dual citizens from running for any elective public office would be thwarted if we were to allow a person who has earlier renounced his foreign citizenship, but who subsequently represents himself as a foreign citizen, to hold any public office. CIScaA Arnado justifies the continued use of his US passport with the explanation that he was not notified of the issuance of his Philippine passport on 18 June 2009, as a result of which he was only able to obtain his Philippine passport three (3) months later. 43 The COMELEC En Banc differentiated Arnado from Willy Yu, the Portuguese national who sought naturalization as a Filipino citizen and later applied for the renewal of his Portuguese passport. That Arnado did not apply for a US passport after his renunciation does not make his

use of a US passport less of an act that violated the Oath of Renunciation he took. It was still a positive act of representation as a US citizen before the immigration officials of this country. The COMELEC, in ruling favorably for Arnado, stated "Yet, as soon as he was in possession of his Philippine passport, the respondent already used the same in his subsequent travels abroad." 44 We cannot agree with the COMELEC. Three months from June is September. If indeed, Arnado used his Philippine passport as soon as he was in possession of it, he would not have used his US passport on 24 November 2009. Besides, Arnado's subsequent use of his Philippine passport does not correct the fact that after he renounced his foreign citizenship and prior to filing his certificate of candidacy, he used his US passport. In the same way that the use of his foreign passport does not undo his Oath of Renunciation, his subsequent use of his Philippine passport does not undo his earlier use of his US passport. Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil and political rights accorded by the state to its citizens. It likewise demands the concomitant duty to maintain allegiance to one's flag and country. While those who acquire dual citizenship by choice are afforded the right of suffrage, those who seek election or appointment to public office are required to renounce their foreign citizenship to be deserving of the public trust. Holding public office demands full and undivided allegiance to the Republic and to no other. We therefore hold that Arnado, by using his US passport after renouncing his American citizenship, has recanted the same Oath of Renunciation he took. Section 40 (d) of the Local Government Code applies to his situation. He is disqualified not only from holding the public office but even from becoming a candidate in the May 2010 elections. We now resolve the next issue. CDHaET Resolving the third issue necessitates revisiting Topacio v. Paredes 45 which is the jurisprudential spring of the principle that a second-placer cannot be proclaimed as the winner in an election contest. This doctrine must be re-examined and its soundness once again put to the test to address the ever-recurring issue that a second-placer who loses to an ineligible candidate cannot be proclaimed as the winner in the elections. The facts of the case are as follows: On June 4, 1912, a general election was held in the town of Imus, Province of Cavite, to fill the office of municipal president. The petitioner, Felipe Topacio, and the respondent, Maximo Abad, were opposing candidates for that office. Topacio received 430 votes, and Abad 281. Abad contested the election upon the sole ground that Topacio was ineligible in that he was reelected the second time to the office of the municipal president on June 4, 1912, without the four years required by Act No. 2045 having intervened. 46 Abad thus questioned the eligibility of Topacio on the basis of a statutory prohibition for seeking a second re-election absent the four year interruption. The often-quoted phrase in Topacio v. Paredes is that "the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots." 47 This phrase is not even the ratio decidendi; it is a mere obiter dictum. The Court was comparing "the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the elections . . . [with] that produced by declaring a person ineligible to hold such an office."

The complete sentence where the phrase is found is part of a comparison and contrast between the two situations, thus: Again, the effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in the elections is quite different from that produced by declaring a person ineligible to hold such an office. In the former case the court, after an examination of the ballots may find that some other person than the candidate declared to have received a plura[l]ity by the board of canvassers actually received the greater number of votes, in which case the court issues its mandamus to the board of canvassers to correct the returns accordingly; or it may find that the manner of holding the election and the returns are so tainted with fraud or illegality that it cannot be determined who received a [plurality] of the legally cast ballots. In the latter case, no question as to the correctness of the returns or the manner of casting and counting the ballots is before the deciding power, and generally the only result can be that the election fails entirely. In the former, we have a contest in the strict sense of the word, because of the opposing parties are striving for supremacy. If it be found that the successful candidate (according to the board of canvassers) obtained a plurality in an illegal manner, and that another candidate was the real victor, the former must retire in favor of the latter. In the other case, there is not, strictly speaking, a contest, as the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots. In the one case the question is as to who received a plurality of the legally cast ballots; in the other, the question is confined to the personal character and circumstances of a single individual. 48 (Emphasis supplied) CSDAIa Note that the sentence where the phrase is found starts with "In the other case, there is not, strictly speaking, a contest" in contrast to the earlier statement, "In the former, we have a contest in the strict sense of the word, because of the opposing parties are striving for supremacy." The Court in Topacio v. Paredes cannot be said to have held that "the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots." A proper reading of the case reveals that the ruling therein is that since the Court of First Instance is without jurisdiction to try a disqualification case based on the eligibility of the person who obtained the highest number of votes in the election, its jurisdiction being confined "to determine which of the contestants has been duly elected" the judge exceeded his jurisdiction when he "declared that no one had been legally elected president of the municipality of Imus at the general election held in that town on 4 June 1912" where "the only question raised was whether or not Topacio was eligible to be elected and to hold the office of municipal president." The Court did not rule that Topacio was disqualified and that Abad as the second placer cannot be proclaimed in his stead. The Court therein ruled: For the foregoing reasons, we are of the opinion and so hold that the respondent judge exceeded his jurisdiction in declaring in those proceedingsthat no one was elect[ed] municipal president of the municipality of Imus at the last general election; and that said order and all subsequent proceedings based thereon are null and void and of no effect; and, although this decision is rendered on respondents' answer to the order to show cause, unless respondents raised some new and additional issues, let judgment be entered accordingly in 5 days, without costs. So ordered. 49

On closer scrutiny, the phrase relied upon by a host of decisions does not even have a legal basis to stand on. It was a mere pronouncement of the Court comparing one process with another and explaining the effects thereof. As an independent statement, it is even illogical. Let us examine the statement: TcCDIS ". . . the wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots." What prevents the transfer of the wreath of victory from the ineligible candidate to another candidate? When the issue being decided upon by the Court is the eligibility of the one receiving a plurality of the legally cast ballots and ineligibility is thereafter established, what stops the Court from adjudging another eligible candidate who received the next highest number of votes as the winner and bestowing upon him that "wreath?" An ineligible candidate who receives the highest number of votes is a wrongful winner. By express legal mandate, he could not even have been a candidate in the first place, but by virtue of the lack of material time or any other intervening circumstances, his ineligibility might not have been passed upon prior to election date. Consequently, he may have had the opportunity to hold himself out to the electorate as a legitimate and duly qualified candidate. However, notwithstanding the outcome of the elections, his ineligibility as a candidate remains unchanged. Ineligibility does not only pertain to his qualifications as a candidate but necessarily affects his right to hold public office. The number of ballots cast in his favor cannot cure the defect of failure to qualify with the substantive legal requirements of eligibility to run for public office. AcIaST The popular ineligibility of a candidate.

vote

does

not

cure

the

The ballot cannot override the constitutional and statutory requirements for qualifications and disqualifications of candidates. When the law requires certain qualifications to be possessed or that certain disqualifications be not possessed by persons desiring to serve as elective public officials, those qualifications must be met before one even becomes a candidate. When a person who is not qualified is voted for and eventually garners the highest number of votes, even the will of the electorate expressed through the ballot cannot cure the defect in the qualifications of the candidate. To rule otherwise is to trample upon and rent asunder the very law that sets forth the qualifications and disqualifications of candidates. We might as well write off our election laws if the voice of the electorate is the sole determinant of who should be proclaimed worthy to occupy elective positions in our republic. This has been, in fact, already laid down by the Court in Frivaldo v. COMELEC 50 when we pronounced: DCIEac . . . . The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state. 51(Emphasis supplied)

This issue has also been jurisprudentially clarified in Velasco v. COMELEC 52 where the Court ruled that the ruling in Quizon and Saya-ang cannot be interpreted without qualifications lest "Election victory . . . becomes a magic formula to bypass election eligibility requirements." 53 [W]e have ruled in the past that a candidate's victory in the election may be considered a sufficient basis to rule in favor of the candidate sought to be disqualified if the main issue involves defects in the candidate's certificate of candidacy. We said that while provisions relating to certificates of candidacy are mandatory in terms, it is an established rule of interpretation as regards election laws, that mandatory provisions requiring certain steps before elections will be construed as directory after the elections, to give effect to the will of the people. We so ruled in Quizon v. COMELEC and Saya-ang v. COMELEC: The present case perhaps presents the proper time and opportunity to finetune our above ruling. We say this with the realization that a blanket and unqualified reading and application of this ruling can be fraught with dangerous significance for the rule of law and the integrity of our elections. For one, such blanket/unqualified reading may provide a way around the law that effectively negates election requirements aimed at providing the electorate with the basic information to make an informed choice about a candidate's eligibility and fitness for office. The first requirement that may fall when an unqualified reading is made is Section 39 of the LGC which specifies the basic qualifications of local government officials. Equally susceptive of being rendered toothless is Section 74 of the OEC that sets out what should be stated in a COC. Section 78 may likewise be emasculated as mere delay in the resolution of the petition to cancel or deny due course to a COC can render a Section 78 petition useless if a candidate with false COC data wins. To state the obvious, candidates may risk falsifying their COC qualifications if they know that an election victory will cure any defect that their COCs may have. Election victory then becomes a magic formula to bypass election eligibility requirements. (Citations omitted) What will stop an otherwise disqualified individual from filing a seemingly valid COC, concealing any disqualification, and employing every strategy to delay any disqualification case filed against him so he can submit himself to the electorate and win, if winning the election will guarantee a disregard of constitutional and statutory provisions on qualifications and disqualifications of candidates? DCHaTc It is imperative to safeguard the expression of the sovereign voice through the ballot by ensuring that its exercise respects the rule of law. To allow the sovereign voice spoken through the ballot to trump constitutional and statutory provisions on qualifications and disqualifications of candidates is not democracy or republicanism. It is electoral anarchy. When set rules are disregarded and only the electorate's voice spoken through the ballot is made to matter in the end, it precisely serves as an open invitation for electoral anarchy to set in. Maquiling he votes candidates.

is obtained from

not

a the among

secondhighest

placer number the

as of qualified

With Arnado's disqualification, Maquiling then becomes the winner in the election as he obtained the highest number of votes from among the qualified candidates. We have ruled in the recent cases of Aratea v. COMELEC 54 and Jalosjos v. COMELEC 55 that a void COC cannot produce any legal effect. Thus, the votes cast in favor of the ineligible candidate are not considered at all in determining the winner of an election.

Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still respected, and even more so. The votes cast in favor of an ineligible candidate do not constitute the sole and total expression of the sovereign voice. The votes cast in favor of eligible and legitimate candidates form part of that voice and must also be respected. As in any contest, elections are governed by rules that determine the qualifications and disqualifications of those who are allowed to participate as players. When there are participants who turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank who does not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be eligible as candidates. There is no need to apply the rule cited in Labo v. COMELEC 56 that when the voters are well aware within the realm of notoriety of a candidate's disqualification and still cast their votes in favor said candidate, then the eligible candidate obtaining the next higher number of votes may be deemed elected. That rule is also a mere obiter that further complicated the rules affecting qualified candidates who placed second to ineligible ones. CHDAaS The electorate's awareness of the candidate's disqualification is not a prerequisite for the disqualification to attach to the candidate. The very existence of a disqualifying circumstance makes the candidate ineligible. Knowledge by the electorate of a candidate's disqualification is not necessary before a qualified candidate who placed second to a disqualified one can be proclaimed as the winner. The second-placer in the vote count is actually the first-placer among the qualified candidates. That the disqualified candidate has already been proclaimed and has assumed office is of no moment. The subsequent disqualification based on a substantive ground that existed prior to the filing of the certificate of candidacy voids not only the COC but also the proclamation. Section 6 of R.A. No. 6646 provides: Section 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. There was no chance for Arnado's proclamation to be suspended under this rule because Arnado failed to file his answer to the petition seeking his disqualification. Arnado only filed his Answer on 15 June 2010, long after the elections and after he was already proclaimed as the winner. The disqualifying circumstance surrounding Arnado's candidacy involves his citizenship. It does not involve the commission of election offenses as provided for in the first sentence of Section 68 of the Omnibus Election Code, the effect of which is to disqualify the individual from continuing as a candidate, or if he has already been elected, from holding the office. The disqualifying circumstance affecting Arnado is his citizenship. As earlier discussed, Arnado was both a Filipino and an American citizen when he filed his certificate of candidacy. He was a dual citizen disqualified to run for public office based on Section 40 (d) of the Local Government Code.

Section 40 starts with the statement "The following persons are disqualified from running for any elective local position." The prohibition serves as a bar against the individuals who fall under any of the enumeration from participating as candidates in the election. TcHCDI With Arnado being barred from even becoming a candidate, his certificate of candidacy is thus rendered void from the beginning. It could not have produced any other legal effect except that Arnado rendered it impossible to effect his disqualification prior to the elections because he filed his answer to the petition when the elections were conducted already and he was already proclaimed the winner. To hold that such proclamation is valid is to negate the prohibitory character of the disqualification which Arnado possessed even prior to the filing of the certificate of candidacy. The affirmation of Arnado's disqualification, although made long after the elections, reaches back to the filing of the certificate of candidacy. Arnado is declared to be not a candidate at all in the May 2010 elections. Arnado being a non-candidate, the votes cast in his favor should not have been counted. This leaves Maquiling as the qualified candidate who obtained the highest number of votes. Therefore, the rule on succession under the Local Government Code will not apply. WHEREFORE, premises considered, the Petition is GRANTED. The Resolution of the COMELEC En Banc dated 2 February 2011 is herebyANNULLED and SET ASIDE. Respondent ROMMEL ARNADO y CAGOCO is disqualified from running for any local elective position. CASAN MACODE MAQUILING is hereby DECLARED the duly elected Mayor of Kauswagan, Lanao del Norte in the 10 May 2010 elections. This Decision is immediately executory. Let a copy of this Decision be served personally upon the parties and the Commission on Elections. No pronouncement as to costs. SO ORDERED. ||| (Maquiling v. Commission on Elections, G.R. No. 195649, [April 16, 2013], 709 PHIL 408-477) [G.R. No. 150605. December 10, 2002.] EUFROCINO M. CODILLA, SR., petitioner, vs. HON. JOSE DE VENECIA, ROBERTO P. NAZARENO, in their official capacities as Speaker and SecretaryGeneral of the House of Representatives, respectively, and MA. VICTORIA L. LOCSIN, respondents. Ramon R. Teleron and Rex Reynaldo C. Sandoval for petitioner. Sixto S. Brillantes, Jr. for respondent Hon. Ma. V.A. Locsin. The Solicitor General for public respondents. Artemio A. Adasa Jr. and Gaudencio A. Mendoza, Jr. for petitioner Hon. De Venecia. Leonardo B. Palicte for respondents. SYNOPSIS Petitioner Eufrocino M. Codilla, Sr., filed the present Petition for Mandamus and Quo Warranto directed against respondents Speaker Jose De Venecia and Secretary-General Roberto P.

Nazareno of the House of Representatives to compel them to implement the decision of the Commission on Elections en bancby (a) administering the oath of office to petitioner as the dulyelected Representative of the 4th legislative district of Leyte, and (b) registering the name of the petitioner in the Roll of Members of the House of Representatives, and against respondent Ma. Victoria L. Locsin for usurping, intruding into, and unlawfully holding and exercising the said public office on the basis of a void proclamation. The Supreme Court granted the petition. The Commission on Elections Second Division gravely abused its power when it suspended petitioner's proclamation. Under Section 6 of R.A. No. 6646, the COMELEC can suspend proclamation only when evidence of the winning candidate's guilt is strong. In the case at bar, the COMELEC Second Division did not make any specific finding that evidence of petitioner's guilt is strong. Its only basis in suspending the proclamation of the petitioner is the "seriousness of the allegations" in the petition for disqualification. More brazen is the proclamation of respondent Locsin which violates the settled doctrine that the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified. In every election, the people's choice is the paramount consideration and their expressed will must at all times be given effect. When the majority speaks and elects into office a candidate by giving him the highest number of votes cast in the election for the office, no one can be declared elected in his place. The Court also ruled that the administration of oath and the registration of the petitioner in the Roll of Members of the House of Representatives representing the 4th legislative district of Leyte is no longer a matter of discretion on the part of the public respondents. The facts are settled and beyond dispute: petitioner garnered 71,350 votes as against respondent Locsin who only got 53,447 votes in the May 14, 2001 elections. The COMELEC Second Division initially ordered the proclamation of respondent Locsin; on Motion for Reconsideration the COMELEC en banc set aside the order of its Second Division and ordered the proclamation of the petitioner. The Decision of the COMELEC en banc has not been challenged before the Court by respondent Locsin and said Decision has become final and executory. AECcTS SYLLABUS 1. POLITICAL LAW; ELECTION LAWS; OMNIBUS ELECTION CODE; DISQUALIFICATION PROCEEDINGS; PETITIONER WAS DENIED DUE PROCESS DURING THE ENTIRE PROCEEDINGS LEADING TO THE PROCLAMATION OF RESPONDENT. — Resolution No. 3402 clearly requires the COMELEC, through the Regional Election Director, to issue summons to the respondent candidate together with a copy of the petition and its enclosures, if any, within three (3) days from the filing of the petition for disqualification. Undoubtedly, this is to afford the respondent candidate the opportunity to answer the allegations in the petition and hear his side. To ensure compliance with this requirement, the COMELEC Rules of Procedure requires the return of the summons together with the proof of service to the Clerk of Court of the COMELEC when service has been completed. Thereafter, hearings, to be completed within ten (10) days from the filing of the Answer, must be conducted. The hearing officer is required to submit to the Clerk of the Commission his findings, reports and recommendations within five (5) days from the completion of the hearing and reception of evidence together with the complete records of the case. The records of the case do not show that summons was served on the petitioner. They do not contain a copy of the summons allegedly served on the petitioner and its corresponding proof of service. Furthermore, private respondent never rebutted petitioner's repeated assertion that he was not properly notified of the petition for his disqualification because he never received summons. Petitioner claims that prior to receiving a telegraphed Order from the COMELEC Second Division on May 22, 2001, directing the District Board of Canvassers to suspend his proclamation, he was never summoned nor furnished a copy of the petition for his disqualification. He was able to obtain a copy of the petition and the May 22 Order of the COMELEC Second Division by personally going to the COMELEC Regional Office on

May 23, 2001. Thus, he was able to file his Answer to the disqualification case only on May 24, 2001. DcaECT 2. ID.; ID.; ID.; ID.; COMMISSION ON ELECTIONS RULES OF PROCEDURE REQUIRING NOTICE AND SERVICE OF MOTIONS TO ALL PARTIES; NOT COMPLIED WITH IN CASE AT BAR. — In the instant case, petitioner has not been disqualified by final judgment when the elections were conducted on May 14, 2001. The Regional Election Director has yet to conduct hearing on the petition for his disqualification. After the elections, petitioner was voted in office by a wide margin of 17,903. On May 16, 2001, however, respondent Locsin filed a Most Urgent Motion for the suspension of petitioner's proclamation. The Most Urgent Motion contained a statement to the effect that a copy was served to the petitioner through registered mail. The records reveal that no registry receipt was attached to prove such service. This violates COMELEC Rules of Procedure requiring notice and service of the motion to all parties. 3. ID.; ID.; ID.; ID.; THE COMMISSION ON ELECTIONS GRAVELY ABUSED ITS POWER WHEN IT SUSPENDED PETITIONER'S PROCLAMATION ABSENT ANY FINDING THAT THE EVIDENCE OF HIS GUILT IS STRONG. — Under Section 6 of R.A. No. 6646, the COMELEC can suspend proclamation only when evidence of the winning candidate's guilt is strong. In the case at bar, the COMELEC Second Division did not make any specific finding that evidence of petitioner's guilt is strong. Its only basis in suspending the proclamation of the petitioner is the "seriousness of the allegations" in the petition for disqualification. Pertinent portion of the Order reads: "Without giving due course to the petition . . . the Commission (2nd Division), pursuant to Section 72 of the Omnibus Election Code in relation to Section 6, Republic Act No. 6646 . . . and considering the serious allegations in the petition, hereby directs the Provincial Board of Canvassers of Leyte to suspend the proclamation of respondent, if winning, until further orders." We hold that absent any finding that the evidence on the guilt of the petitioner is strong, the COMELEC Second Division gravely abused its power when it suspended his proclamation. 4. ID.; ID.; ID.; ID.; RESOLUTION DISQUALIFYING PETITIONER IS NOT BASED ON SUBSTANTIAL EVIDENCE; THE COMMISSION GRIEVOUSLY ERRED IN DECIDING THE DISQUALIFICATION CASE BASED ON SECTION 261 (a) AND (o), AND NOT ON SECTION 68 OF THE OMNIBUS ELECTION CODE. — The Resolution of the COMELEC Second Division cannot be considered to be based on substantial evidence. It relied merely on affidavits of witnesses attached to the petition for disqualification. As stressed, the COMELEC Second Division gave credence to the affidavits without hearing the affiants. In reversing said Resolution, the COMELEC en banc correctly observed: "Lacking evidence of Codilla, the Commission (Second Division) made its decisions based mainly on the allegation of the petitioner and the supporting affidavits. With this lopsided evidence at hand, the result was predictable. The Commission (Second Division) had no choice. Codilla was disqualified." Worse, the Resolution of the COMELEC Second Division, even without the evidence coming from the petitioner, failed to prove the gravamen of the offense for which he was charged. Petitioner allegedly violated Section 68 (a) of the Omnibus Election Code. To be disqualified under the above-quoted provision, the following elements must be proved: (a) the candidate, personally or through his instructions, must have given money or other material consideration; and (b) the act of giving money or other material consideration must be for the purpose of influencing, inducing, or corrupting the voters or public officials performing electoral functions. In the case at bar, the petition for disqualification alleged that (a) petitioner ordered the extraction, hauling and distribution of gravel and sand, and (b) his purpose was to induce and influence the voters of Kananga and Matag-ob, Leyte to vote for him. These allegations are extraneous to the charge in the petition for disqualification. More importantly, these allegations do not constitute a ground to disqualify the petitioner based on Section 68 of the Omnibus Election Code. The jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC jurisdiction. They are criminal and not administrative in nature. Pursuant to Sections 265 and 268 of the Omnibus Election Code, the power

of the COMELEC is confined to the conduct of preliminary investigation on the alleged election offenses for the purpose of prosecuting the alleged offenders before the regular courts of justice. The COMELEC Second Division grievously erred when it decided the disqualification case based on Section 261 (a) and (o), and not on Section 68 of the Omnibus Election Code. EDISTc

5. ID.; ID.; ID.; ID.; VOTES CAST IN FAVOR OF PETITIONER CANNOT BE CONSIDERED "STRAY" CONSIDERING THAT HE HAS NOT BEEN DECLARED DISQUALIFIED BY FINAL JUDGMENT. — Section 6 of R.A. No. 6646 and Section 72 of the Omnibus Election Code require a final judgment before the electionfor the votes of a disqualified candidate to be considered "stray." Hence, when a candidate has not yet been disqualified by final judgment during the election day and was voted for, the votes cast in his favor cannot be declared stray. To do so would amount to disenfranchising the electorate in whom sovereignty resides. For in voting for a candidate who has not been disqualified by final judgment during the election day, the people voted for himbonafide, without any intention to misapply their franchise, and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of government. This principle applies with greater force in the case at bar considering that the petitioner has not been declared by final judgment to be disqualified not only before but even after the elections. The Resolution of the COMELEC Second Division disqualifying the petitioner did not attain finality, and hence, could not be executed, because of the timely filing of a Motion for Reconsideration. Section 13, Rule 18 of the COMELEC Rules of Procedure on Finality of Decisions and Resolutions. cIHDaE 6. ID.; ID.; ID.; ID.; PROCLAMATION OF RESPONDENT VIOLATES THE SETTLED DOCTRINE THAT THE SECOND PLACER COULD NOT TAKE THE PLACE OF THE DISQUALIFIED WINNER. — More brazen is the proclamation of respondent Locsin which violates the settled doctrine that the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified. In every election, the people's choice is the paramount consideration and their expressed will must at all times be given effect. When the majority speaks and elects into office a candidate by giving him the highest number of votes cast in the election for the office, no one can be declared elected in his place. Respondent Locsin proffers a distinction between a disqualification based on personal circumstances such as age, residence or citizenship and disqualification based on election offenses. She contends that the election of candidates later disqualified based on election offenses like those enumerated in Section 68 of the Omnibus Election Codeshould be invalidated because they violate the very essence of suffrage and as such, the votes cast in his favor should not be considered. This contention is without merit. In the recent case of Trinidad v. COMELEC, this Court ruled that the effect of a judgment disqualifying a candidate, after winning the election, based on personal circumstances or Section 68 of the Omnibus Election Code is the same: the second placer could not take the place of the disqualified winner. 7. ID.; ID.; ID.; ID.; THE ORDER SUSPENDING PETITIONER'S PROCLAMATION IS UNENFORCEABLE AS IT HAS NOT ATTAINED FINALITY AND THEREFORE CANNOT BE USED AS THE BASIS FOR RESPONDENT'S ASSUMPTION IN OFFICE. — Since the petitioner seasonably filed a Motion for Reconsideration of the Order of the Second Division suspending his proclamation and disqualifying him, the COMELEC en banc was not divested of its jurisdiction to review the validity of the said Order of the Second Division. The said Order of the Second Division was yet unenforceable as it has not attained finality; the timely filing of the motion for reconsideration suspends its execution. It cannot, thus, be used as the basis for the assumption in office of the respondent as the duly elected Representative of the 4th legislative district of Leyte. 8. ID.; ID.; ID.; ID.; THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL HAS NO JURISDICTION OVER THE CASE. — A petition for quo warranto may be filed only on the grounds of ineligibility and disloyalty to the Republic of the Philippines. In the case at bar, neither the eligibility of the respondent Locsin nor her loyalty to the Republic of the Philippines is in question. There is no

issue that she was qualified to run, and if she won, to assume office. A petition for quo warranto in the HRET is directed against one who has been duly elected and proclaimed for having obtained the highest number of votes but whose eligibility is in question at the time of such proclamation. It is evident that respondent Locsin cannot be the subject of quo warranto proceeding in the HRET. She lost the elections to the petitioner by a wide margin. Her proclamation was a patent nullity. Her premature assumption to office as Representative of the 4th legislative district of Leyte was void from the beginning. It is the height of absurdity for the respondent, as a loser, to tell petitioner Codilla, Sr., the winner, to unseat her via a quo warranto proceeding. 9. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; MANDAMUS; THE ADMINISTRATION OF OATH AND REGISTRATION OF PETITIONER IN THE ROLL OF MEMBERS OF THE HOUSE OF REPRESENTATIVES IS NO LONGER A MATTER OF DISCRETION ON THE PART OF PUBLIC RESPONDENTS. — Under Rule 65, Section 3 of the 1997 Rules of Civil Procedure, any person may file a verified petition for mandamus "when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law." For a petition for mandamus to prosper, it must be shown that the subject of the petition for mandamus is a ministerial act or duty, and not purely discretionary on the part of the board, officer or person, and that the petitioner has a well-defined, clear and certain right to warrant the grant thereof. The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment. In the case at bar, the administration of oath and the registration of the petitioner in the Roll of Members of the House of Representatives representing the 4th legislative district of Leyte is no longer a matter of discretion on the part of the public respondents. The facts are settled and beyond dispute: petitioner garnered 71,350 votes as against respondent Locsin who only got 53,447 votes in the May 14, 2001 elections. The COMELEC Second Division initially ordered the proclamation of respondent Locsin; on Motion for Reconsideration the COMELEC en banc set aside the order of its Second Division and ordered the proclamation of the petitioner. The Decision of the COMELEC en banc has not been challenged before this Court by respondent Locsin and said Decision has become final and executory. In sum, the issue of who is the rightful Representative of the 4th legislative district of Leyte has been finally settled by the COMELEC en banc, the constitutional body with jurisdiction on the matter. The rule of law demands that its Decision be obeyed by all officials of the land. There is no alternative to the rule of law except the reign of chaos and confusion. EcDATH

DECISION

PUNO, J p: In a democracy, the first self-evident principle is that he who has been rejected by the people cannot represent the people. Respondent Ma. Victoria L. Locsin lost to petitioner Eufrocino M. Codilla, Sr. by 17,903 votes in the May 14, 2001 elections as Representative of the 4th legislative district of Leyte. The most sophisticated legal alchemy cannot justify her insistence that she should continue governing the people of Leyte against their will. The enforcement of the sovereign will of the people is not subject to the discretion of any official of the land. HcTDSA

This is a Petition for Mandamus and Quo Warranto directed against respondents Speaker Jose De Venecia and Secretary-General Roberto P. Nazareno of the House of Representatives to compel them to implement the decision of the Commission on Elections en banc by (a) administering the oath of office to petitioner as the duly-elected Representative of the 4th legislative district of Leyte, and (b) registering the name of the petitioner in the Roll of Members of the House of Representatives, and against respondent Ma. Victoria L. Locsin for usurping, intruding into, and unlawfully holding and exercising the said public office on the basis of a void proclamation. The facts are uncontroverted. Petitioner and respondent Locsin were candidates for the position of Representative of the 4th legislative district of Leyte during the May 14, 2001 elections. At that time, petitioner was the Mayor of Ormoc City while respondent Locsin was the sitting Representative of the 4th legislative district of Leyte. On May 8, 2001, one Josephine de la Cruz, a registered voter of Kananga, Leyte, filed directly with the COMELEC main office a Petition for Disqualification 1 against the petitioner for indirectly soliciting votes from the registered voters of Kananga and Matag-ob, Leyte, in violation of Section 68(a) of the Omnibus Election Code. It was alleged that the petitioner used the equipments and vehicles owned by the City Government of Ormoc to extract, haul and distribute gravel and sand to the residents of Kananga and Matag-ob, Leyte, for the purpose of inducing, influencing or corrupting them to vote for him. Attached to the petition are the (a) Affidavits of Basilio Bates, 2 Danilo D. Maglasang, 3 Cesar A. Laurente; 4 (b) Joint Affidavit of Agripino C. Alferez and Rogelio T. Salvera; 5 (c) Extract Records from the Police Blotter executed by Police Superintendent Elson G. Pecho; 6 and (d) Photographs showing government dump trucks, haulers and surfacers and portions of public roads allegedly filled-in and surfaced through the intercession of the respondent. 7The case was docketed as SPA No. 01-208 and assigned to the COMELEC's Second Division.

On May 10, 2001, the COMELEC Second Division issued an Order delegating the hearing and reception of evidence on the disqualification case to the Office of the Regional Director of Region VIII. 8 On May 11, 2001, the COMELEC Second Division sent a telegram informing the petitioner that a disqualification case was filed against him and that the petition was remanded to the Regional Election Director for investigation. 9 At the time of the elections on May 14, 2001, the Regional Election Director had yet to hear the disqualification case. Consequently, petitioner was included in the list of candidates for district representative and was voted for. The initial results showed that petitioner was the winning candidate. cHDaEI On May 16, 2001, before the counting could be finished, respondent Locsin joined as intervenor in SPA No. 128 and filed a "Most Urgent Motion to Suspend Proclamation of Respondent [herein petitioner]" with the COMELEC Second Division. 10 Respondent Locsin alleged that "the evidence on record against respondent is very strong and unless rebutted remains." She urged the Commission to set the hearing of the disqualification case and prayed for the suspension of the proclamation of the respondent "so as not to render the present disqualification case moot and academic." A copy of the Motion was allegedly served on petitioner by registered mail but no registry receipt was attached thereto. 11 On May 18, 2001, respondent Locsin filed a "Second Most Urgent Motion to Suspend Proclamation of Respondent" stating "there is clear and convincing evidence showing that the respondent is undoubtedly guilty of the charges against him and this remains unrebutted by the respondent." A copy of the Motion was sent to the petitioner and the corresponding registry receipt was attached to the pleading. 12 The records, however, do not show the date the petitioner received the motion. SIDTCa On the same day, May 18, 2001, the COMELEC Second Division issued an Ex-Parte Order 13 directing the Provincial Board of Canvassers of Leyte to suspend the proclamation of

petitioner in case he obtains the highest number of votes by reason of "the seriousness of the allegations in the petition for disqualification." 14 It also directed the Regional Election Director to speed up the reception of evidence and to forward immediately the complete records together with its recommendation to the Office of the Clerk of the Commission. 15 As a result, petitioner was not proclaimed as winner even though the final election results showed that he garnered 71,350 votes as against respondent Locsin's 53,447 votes. 16 At the time that the COMELEC Second Division issued its Order suspending his proclamation, the petitioner has yet to be summoned to answer the petition for disqualification. Neither has said petition been set for hearing. It was only on May 24, 2001 that petitioner was able to file an Answer to the petition for his disqualification with the Regional Election Director, alleging that: (a) he has not received the summons together with the copy of the petition; (b) he became aware of the matter only by virtue of the telegram sent by the COMELEC Second Division informing him that a petition was filed against him and that the Regional Election Director was directed to investigate and receive evidence therewith; and (c) he obtained a copy of the petition from the COMELEC Regional Office No. 8 at his own instance. 17 Petitioner further alleged that the maintenance, repair and rehabilitation of barangay roads in the municipalities of Matag-ob and Kananga were undertaken without his authority, participation or directive as City Mayor of Ormoc. He attached in his Answer the following: (a) Affidavit of Alex B. Borinaga; 18 (b) Copy of the Excerpt from the Minutes of the Regular Session of Barangay Monterico; 19 (c) Affidavit of Wilfredo A. Fiel; 20 (d) Supplemental Affidavit of Wilfredo A. Fiel; 21 and (e) Affidavit of Arnel Y. Padayao. 22 On May 25, 2001, petitioner filed a Motion to Lift Order of Suspension, 23 alleging that (a) he did not receive a copy of the Motion to Suspend his Proclamation and hence, was denied the right to rebut and refute the allegations in the Motion; (b) that he did not receive a copy of the summons on the petition for disqualification and after personally obtaining a copy of the petition, filed the requisite answer only on May 24, 2001; and (c) that he received the telegraph Order of the COMELEC Second Division suspending his proclamation only on May 22, 2001. He attached documentary evidence in support of his Motion to Lift the Suspension of his proclamation, and requested the setting of a hearing on his Motion. 24 On May 30, 2001, an oral argument was conducted on the petitioner's Motion and the parties were ordered to submit their respective memoranda. 25 On June 4, 2001, petitioner submitted his Memorandum 26 in support of his Motion assailing the suspension of his proclamation on the grounds that: (a) he was not afforded due process; (b) the order has no legal and factual basis; and (c) evidence of his guilt is patently inexistent for the purpose of suspending his proclamation. He prayed that his proclamation as winning congressional candidate be expediently made, even while the disqualification case against him continue upon due notice and hearing. He attached the following additional evidence in his Memorandum: (a) Copy of certification issued by PNP Senior Inspector Benjamin T. Gorre; 27 (b) Certification issued by Elena S. Aviles, City Budget Officer; 28 (c) Copy of certification issued by Wilfredo A. Fiel, City Engineer of Ormoc; 29 (d) Joint Affidavit of Antonio Patenio and Pepito Restituto; 30 and (e) Affidavits of Demetrio Brion, 31 Igmedio Rita 32 and Gerardo Monteza. 33 Respondent Locsin's memorandum also contained additional affidavits of his witnesses. 34 Petitioner's Motion to Lift the Order of Suspension, however, was not resolved. Instead, on June 14, 2001, the COMELEC Second Division promulgated its Resolution 35 in SPA No. 01-208 which found the petitioner guilty of indirect solicitation of votes and ordered his disqualification. It directed the "immediate proclamation of the candidate who garnered the highest number of votes . . . ." A copy of said Resolution was sent by fax to the counsel of petitioner in Cebu City in the afternoon of the following day. 36 By virtue of the said Resolution, the votes cast for petitioner, totaling 71,350, were declared stray even before said Resolution could gain finality. On June 15, 2001, respondent Locsin was proclaimed

as the duly elected Representative of the 4th legislative district of Leyte by the Provincial Board of Canvassers of Leyte. It issued a Certificate of Canvass of Votes and Proclamation of the Winning Candidates for Member of the House of Representatives stating that "MA. VICTORIA LARRAZABAL LOCSIN obtained a total of FIFTY THREE THOUSAND FOUR HUNDRED FORTY SEVEN (53,447) votes representing the highest number of votes legally cast in the legislative district for said office." 37 Respondent Locsin took her oath of office on June 18, 2001 and assumed office on June 30, 2001. On June 20, 2001, petitioner seasonably filed with the COMELEC en banc a Motion for Reconsideration 38 from the June 14, 2001 Resolution of the COMELEC Second Division which ordered his disqualification, as well as an Addendum to the Motion for Reconsideration. 39 Petitioner alleged in his Motion for Reconsideration that the COMELEC Second Division erred: (1) in disqualifying petitioner on the basis solely of the dubious declaration of the witnesses for respondent Locsin; (2) in adopting in toto the allegations of the witnesses for respondent Locsin; and (3) in promulgating the resolution in violation of its own rules of procedure and in directing therein the immediate proclamation of the second highest 'vote getter.' Respondent Locsin and her co-petitioner in SPA No. 01-208 filed a joint Opposition to the Motion for Reconsideration. 40 On June 21, 2001, petitioner filed with the COMELEC en banc a Petition for Declaration of Nullity of Proclamation, 41 docketed as SPC No. 01-324, assailing the validity of the proclamation of respondent Locsin who garnered only the second highest number of votes. Respondent Locsin filed her Answer alleging that: (1) the Commission lost jurisdiction to hear and decide the case because of the proclamation of Locsin and that any question on the "election, returns, and qualification" of Locsin can only be taken cognizance of by the House of Representatives Electoral Tribunal (HRET); (2) the case should be filed and heard in the first instance by a Division of the Commission and not directly by the Commission en banc; and (3) the proclamation of Locsin was valid because she received the highest number of valid votes cast, the votes of Codilla being stray. On June 28, 2001, petitioner filed an Urgent Manifestation 42 stating that he was deprived of a fair hearing on the disqualification case because while the documentary evidence adduced in his Memorandum was in support of his Motion for the lifting of the suspension of his proclamation, the COMELEC Second Division instead ruled on the main disqualification case. In consonance with his prayer that a full-dress hearing be conducted on the disqualification case, he submitted Affidavits of additional witnesses 43 which he claims would refute and substantially belie the allegations of petitioner's/intervenor's witnesses. A Reply, 44 Rejoinder 45 and Sur-Rejoinder 46 were respectively filed by the parties. Consequently, the motion for reconsideration in SPA No. 01-208 and the petition for declaration of nullity in SPC No. 01-324 were submitted for resolution. cCaSHA

From the records, it appears that initially, a "Resolution" penned by Commissioner Rufino S.B. Javier, dated July 24, 2001, was submitted to the Office of the Chairman, dismissing the petition for declaration of nullity for lack of jurisdiction and denying the motion for reconsideration filed by petitioner Codilla. 47Commissioners Florentino A. Tuason, Jr. and Resurreccion Z. Borra submitted their respective dissenting opinions 48 to the Javier resolution. It bears emphasis that Commissioner Tuason, Jr. was the ponente of the Resolution of the COMELEC Second Division which ordered the disqualification of petitioner but after considering the additional evidence presented by the latter, he concluded that the totality of the evidence was clearly in petitioner's favor. Equally worth mentioning is the fact that Commissioner Ralph C. Lantion, who was the Presiding Commissioner of the Second Division, also dissented and voted to grant Codilla's motion for reconsideration on the ground that "[T]he people of Leyte have spoken and I respect the electorate's will. . . ." 49

On August 29, 2001, then COMELEC Chairman Alfredo L. Benipayo issued a "Vote and Opinion and Summary of Votes" reversing the resolution of the Second Division and declaring the proclamation of respondent Locsin as null and void. The dispositive portion reads: "JUDGMENT WHEREFORE, in view of all the foregoing considerations, I concur with Commissioner Resurreccion Z. Borra, Commissioner Florentino A. Tuason, Jr. and Commissioner Ralph C. Lantion, in SPA No. 01-208, to GRANT the motion for reconsideration and to REVERSE the resolution of the Commission (Second Division) promulgated on June 1, 2001, disqualifying Codilla; and subsequently, in SPC No. 01-324, to GRANT the petition of Eufrocino M. Codilla, Sr., and declare as null and void the proclamation of losing candidate Locsin. Accordingly: 1. On the Motion for Reconsideration of the disqualification resolution against Codilla, promulgated by the Commission (Second Division) on June 14, 2001 (SPA No. 01208), I vote: (a) to GRANT the Motion for Reconsideration of respondent-movant Eufrocino M. Codilla, Sr., and to REVERSE the Resolution of the Commission (Second Division) promulgated on June 14, 2001, for insufficiency of evidence; (b) to lift the order of suspension of proclamation of petitioner Codilla, issued by the Commission (Second Division) on May 18, 2001, having been issued without hearing and without any finding that the evidence of guilt of petitioner Codilla is strong and, thus, null and void; (c) to nullify the order contained in the Resolution of the Commission (Second Division) promulgated on June 14, 2001, for "(t)he immediate proclamation of the candidate who garnered the highest number of votes, to the exclusion of respondent" and the concurrent order for "the Provincial Board of Canvasser (sic) of Leyte to immediately reconvene and thereafter proclaim forthwith the candidate who obtained the highest number of votes counting out the Respondent" the same being violative of election laws, established jurisprudence, and resolutions of the Commission; (d) to nullify the ruling contained in the Resolution of the Commission (Second Division) promulgated on June 14, 2001, that the votes of respondent Codilla are "considered stray and invalid" said ruling being issued on the basis of an inapplicable decision, and contrary to established jurisprudence; (e) to order the Provincial Board of Canvassers of Leyte, upon the finality of this resolution, to reconvene and proclaim petitioner Codilla as the winning candidate for Representative of the Fourth Legislative district of Leyte to comply with its ministerial duty to proclaim the candidate who garnered the highest number of votes in the elections for that position; and (f) to order intervenor-oppositor Locsin, upon the finality of this resolution, to vacate the office of Representative of the House of Representatives representing the Fourth legislative district of Leyte and, for this purpose,

to inform the House of Representatives through the Honorable Speaker of this resolution for its attention and guidance; and 2. On the petition for Declaration of Nullity of proclamation of respondent Ma. Victoria L. Locsin (SPC No. 01-324), I vote: (a) to GRANT the petition of Eufrocino M. Codilla, Sr., and declare as null and void the proclamation of losing candidate Locsin, the proclamation being violative of election laws, established jurisprudence, and resolutions of the Commission on Elections; (b) to lift the order of suspension of proclamation of petitioner Codilla, issued by the Commission (Second Division) on May 18, 2001, in SPA No. 01-208, having been issued without hearing and without any finding that the evidence of guilt of petitioner Codilla is strong and, thus, null and void; (c) to nullify the order contained in the Resolution of the Commission (Second Division) promulgated on June 14, 2001, in SPA No. 01-208, for "(t)he immediate proclamation of the candidate who garnered the highest number of votes, to the exclusion of respondent" and the concurrent order for "the provincial Board of Canvasser (sic) of Leyte to immediately reconvene and thereafter proclaim forthwith the candidate who obtained the highest number of votes counting out the Respondent" the same being violative of election laws, established jurisprudence, and resolutions of the Commission; (d) to nullify the ruling contained in the Resolution of the Commission (Second Division) promulgated on June 14, 2001, in SPA No. 01-208, that the votes of respondent Codilla are "considered stray and invalid" said ruling being issued on the basis of an inapplicable decision, and contrary to established jurisprudence; (e) to order the provincial Board of Canvassers of Leyte, upon the finality of this resolution, to reconvene and proclaim petitioner Codilla as the winning candidate for Representative of the Fourth legislative district of Leyte he (sic) having garnered the highest number of votes in the elections for the position; and (f) to order respondent Locsin, upon the finality of this resolution, to vacate the office of Representative of the House of Representatives representing the Fourth Legislative district of Leyte and, for this purpose, to inform the House of Representatives through the Honorable Speaker of this resolution for its attention and guidance. CAacTH Summary of Votes Considering the FOUR (4) VOTES of the Chairman and Commissioners Resurreccion Z. Borra, Florentino A. Tuason, Jr., and Ralph C. Lantion, to grant the Motion for Reconsideration of Codilla and reverse the disqualification Resolution of the Commission (Second Division) in SPA No. 01-208, promulgated on June 14, 2001, and as an inevitable consequence, in voting to grant the petition for declaration of nullity of the proclamation of Ma. Victoria L. Locsin in SPC No. 01-324, the verdict/opinion of the Chairman and the three (3) Commissioners taken together now stands, as it is, the MAJORITY DECISION of the Commission En Banc in both cases; and the "Resolution" submitted by three (3) Commissioners, namely, Commissioner Rufino S.B. Javier, Commissioner Luzviminda G. Tancangco, and Commissioner

Mehol K. Sadain, is considered, as it is, the MINORITY DECISION of the Commission En Banc in both cases. The MAJORITY DECISION was arrived at after proper consultation with those who joined the majority. The Chairman and the three (3) Commissioners comprising the majority decided that no one will be assigned to write a Majority Decision. Instead, each one will write his own separate opinion. Commissioners Borra, Tuason, Jr. and the undersigned Chairman submitted separate opinions. Commissioner Lantion wrote an explanation on his vote."50 The aforequoted judgment was adopted in a "Vote of Adoption" signed by Commissioners Ralph C. Lantion, Resurreccion Z. Borra and Florentino A. Tuason, Jr. 51 Respondent Locsin did not appeal from this decision annulling her proclamation. Instead, she filed a "Comment and Manifestation" 52 with the COMELEC en banc questioning the procedure and the manner by which the decision was issued. In addition, respondent Locsin requested and was issued an opinion by House of Representatives Executive Director and Chief Legal Counsel Leonardo B. Palicte III declaring that the COMELEC has no jurisdiction to nullify the proclamation of respondent Locsin after she had taken her oath and assumed office since it is the HRET which is the sole judge of election, returns and qualifications of Members of the House. 53 Relying on this opinion, respondent Locsin submitted a written privileged speech to the House during its regular session on September 4, 2001, where she declared that she will not only disregard but will openly defy and disobey the COMELEC en banc resolution ordering her to vacate her position. 54 On September 6, 2001, the COMELEC en banc issued an Order 55 constituting the members of the Provincial Board of Canvassers of Leyte to implement the aforesaid decision. It likewise ordered the Board to reconvene and "proclaim the candidate who obtained the highest number of votes in the district, as the duly-elected Representative of the Fourth Legislative district of Leyte, and accordingly issue a Certificate of Canvass and Proclamation of Winning Candidate for Member of the House of Representatives . . . , based on the city/municipal certificates of canvass submitted beforehand to the previous Provincial Board of Canvassers of Leyte . . . ." On September 12, 2001, petitioner Codilla was proclaimed by the Provincial Board of Canvassers as the duly-elected Representative of the 4th legislative district of Leyte, having obtained a total of 71,350 votes representing the highest number of votes cast in the district. 56 On the same day, petitioner took his oath of office before Executive Judge Fortunito L. Madrona of the Regional Trial Court of Ormoc City. 57

On September 14, 2001, petitioner wrote the House of Representatives, thru respondent Speaker De Venecia, informing the House of the August 29, 2001 COMELEC en banc resolution annulling the proclamation of respondent Locsin, and proclaiming him as the duly-elected Representative of the 4th legislative district of Leyte. 58 Petitioner also served notice that "I am assuming the duties and responsibilities as Representative of the fourth legislative district of Leyte to which position I have been lawfully elected and proclaimed. On behalf of my constituents, I therefore expect that all rights and privileges intended for the position of Representative of the fourth legislative district of Leyte be accorded to me, including all physical facilities and staff support." On the basis of this letter, a Memorandum 59 dated October 8, 2001 was issued by Legal Affairs Deputy Secretary-General Gaudencio A. Mendoza, Jr., for Speaker De Venecia, stating that "there is no legal obstacle to complying with the duly promulgated — and now final and executory — COMELEC Decision of August 29, 2001 . . . ." These notwithstanding, and despite receipt by the House of Representatives of a copy of the COMELEC en banc resolution on September 20, 2001, 60 no action was taken by the House on the

letter-appeal of petitioner. Hence, petitioner sought the assistance of his party, LAKAS-NUCD-UMDP, which sent a letter 61 addressed to respondent Speaker De Venecia, dated October 25, 2001, and signed by Party President Teofisto T. Guingona, Jr., Secretary-General Heherson T. Alvarez, and Region VIII Party Chairman Sergio Antonio F. Apostol, requesting the House of Representatives to act decisively on the matter in order that petitioner "can avail of whatever remedy is available should their action remain unfavorable or otherwise undecisive." In response, Speaker De Venecia sent a letter 62 dated October 30, 2001, stating that: "We recognize the finality of the COMELEC decision and we are inclined to sustain it. However, Rep. Locsin has officially notified the HOUSE in her privilege speech, inserted in the HOUSE Journal dated September 4, 2001, that she shall 'openly defy and disobey' the COMELEC ruling. This ultimately means that implementing the decision would result in the spectacle of having two (2) legislators occupying the same congressional seat, a legal situation, the only consideration, that effectively deters the HOUSE's liberty to take action. In this light, the accepted wisdom is that the implementation of the COMELEC decision is a matter that can be best, and with finality, adjudicated by the Supreme Court, which, hopefully, shall act on it most expeditiously." (italics supplied) Hence, the present petition for mandamus and quo warranto. Petitioner submits that by virtue of the resolution of the COMELEC en banc which has become final and executory for failure of respondent Locsin to appeal therefrom, it has become the ministerial duty: (1) of the Speaker of the House of Representatives, as its Administrative Head and Presiding Officer, to implement the said resolution of the COMELEC en banc by installing him as the duly-elected Representative of the 4th legislative district of Leyte; and (2) of the Secretary-General, as official custodian of the records of the House, to formally register his name in the Roll of Members of the House and delete the name of respondent Locsin therefrom. Petitioner further contends that respondent Locsin has been usurping and unlawfully holding the public office of Representative of the 4th legislative district of Leyte considering that her premature proclamation has been declared null and void by the COMELEC en banc. He alleges that the action or inaction of public respondents has deprived him of his lawful right to assume the office of Representative of the 4th legislative district of Leyte. In his Comment, 63 public respondent Speaker De Venecia alleged that mandamus will not lie to compel the implementation of the COMELEC decision which is not merely a ministerial duty but one which requires the exercise of discretion by the Speaker of the House considering that: (1) it affects the membership of the House; and (2) there is nothing in the Rules of the House of Representatives which imposes a duty on the House Speaker to implement a COMELEC decision that unseats an incumbent House member. In his Comment, 64 public respondent Secretary-General Nazareno alleged that in reading the name of respondent Locsin during the roll call, and in allowing her to take her oath before the Speaker-elect and sit as Member of the House during the Joint Session of Congress, he was merely performing official acts in compliance with the opinions 65 rendered by House of Representatives Chief Counsel and Executive Director Leonardo C. Palicte III stating that the COMELEC has no jurisdiction to declare the proclamation of respondent Locsin as null and void since it is the HRET which is the sole judge of all election, returns and qualifications of Members of the House. He also contends that the determination of who will sit as Member of the House of Representatives is not a ministerial function and cannot, thus, be compelled by mandamus. Respondent Locsin, in her Comment, 66 alleged that the Supreme Court has no original jurisdiction over an action for quo warranto involving a member of the House of Representatives for under

Section 17, Article VI of the Constitution it is the HRET which is the sole judge of all contests relating to the election, returns and qualifications of Members of the House of Representatives. She likewise asserts that this Court cannot issue the writ of mandamus against a co-equal legislative department without grossly violating the principle of separation of powers. She contends that the act of recognizing who should be seated as a bona fide member of the House of Representatives is not a ministerial function but a legislative prerogative, the performance of which cannot be compelled by mandamus. Moreover, the prayer for a writ of mandamus cannot be directed against the Speaker and Secretary-General because they do not have the authority to enforce and implement the resolution of the COMELEC. Additionally, respondent Locsin urges that the resolution of the COMELEC en banc is null and void for lack of jurisdiction. First, it should have dismissed the case pending before it after her proclamation and after she had taken her oath of office. Jurisdiction then was vested in the HRET to unseat and remove a Member of the House of Representatives. Second, the petition for declaration of nullity is clearly a pre-proclamation controversy and the COMELEC en banchas no original jurisdiction to hear and decide a pre-proclamation controversy. It must first be heard by a COMELEC Division. Third, the questioned decision is actually a "hodge-podge" decision because of the peculiar manner in which the COMELEC disposed of the case. Finally, respondent Locsin asserts that the matter of her qualification and eligibility has been categorically affirmed by the HRET when it dismissed the quo warranto case filed against her, docketed as HRET Case No. 01-043, entitled "Paciano Travero vs. Ma. Victoria Locsin," on the ground that "the allegations stated therein are not proper grounds for a petition for quo warranto against a Member of the House of Representatives under Section 253 of the Omnibus Election Code and Rule 17 of the HRET Rules, and that the petition was filed late." 67 In his Reply, 68 petitioner asserts that the remedy of respondent Locsin from the COMELEC decision was to file a petition for certiorari with the Supreme Court, not to seek an opinion from the Chief Legal Counsel of the House of Representatives; that the HRET has no jurisdiction over a petition for declaration of nullity of proclamation which is based not on ineligibility or disloyalty, but by reason that the candidate proclaimed as winner did not obtain the highest number of votes; that the petition for annulment of proclamation is a pre-proclamation controversy and, hence, falls within the exclusive jurisdiction of the COMELEC pursuant to Section 242 of B.P. Blg. 881 69 and Section 3, Article IX (C) of the Constitution; that respondent Speaker De Venecia himself recognizes the finality of the COMELEC decision but has decided to refer the matter to the Supreme Court for adjudication; that the enforcement and implementation of a final decision of the COMELEC involves a ministerial act and does not encroach on the legislative power of Congress; and that the power to determine who will sit as Member of the House does not involve an exercise of legislative power but is vested in the sovereign will of the electorate. The core issues in this case are: (a) whether the proclamation of respondent Locsin by the COMELEC Second Division is valid; (b) whether said proclamation divested the COMELEC en banc of jurisdiction to review its validity; and (c) assuming the invalidity of said proclamation, whether it is the ministerial duty of the public respondents to recognize petitioner Codilla, Sr. as the legally elected Representative of the 4th legislative district of Leyte vice respondent Locsin. I Whether the proclamation of respondent Locsin is valid. After carefully reviewing the records of this case, we find that the proclamation of respondent Locsin is null and void for the following reasons: First. The petitioner was denied due process during the entire proceedings leading to the proclamation of respondent Locsin.

COMELEC Resolution Nos. 3402 70 sets the procedure for disqualification cases pursuant to Section 68 of the Omnibus Election Code, viz: "C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR DISQUALIFICATION (1) The verified petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code and the verified petition to disqualify a candidate for lack of qualifications or possessing same grounds for disqualification, may be filed any day after the last day for filing of certificates of candidacy but not later than the date of proclamation.

(2) The petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code shall be filed in ten (10) legible copies by any citizen of voting age, or duly registered political party, organization or coalition of political parties against any candidate who in an action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of. 2.a having given money or other material consideration to influence, induce or corrupt the voters or public officials performing electoral functions; 2.b having committed acts candidacy; EHTSCD

of

terrorism

to

enhance

his

2.c having spent in his election campaign an amount in excess of that allowed by the Omnibus Election Code; 2.d having solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104 of the Omnibus Election Code; 2.e having violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6 of the Omnibus Election Code, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. xxx xxx xxx (4) Upon payment of the filing fee of P1,000.00 and legal research fee of P20.00, the offices concerned shall docket the petition and assign to it a docket number which must be consecutive, according to the order of receipt and must bear the year and prefixed as SPA with the corresponding initial of the name of the office, i.e. SPA (RED) No. C01001; SPA (PES) No. C01-001; (5) Within three (3) days from filing of the petitions, the offices concerned shall issue summons to the respondent candidate together with a copy of the petition and its enclosures, if any; (6) The respondent shall be given three (3) days from receipt of summons within which to file his verified answer (not a motion to dismiss) to the petition in ten (10) legible copies, serving a copy thereof upon the

petitioner. Grounds for Motion to Dismiss may be raised as an affirmative defense; (7) The proceeding shall be summary in nature. In lieu of the testimonies, the parties shall submit their affidavits or counter-affidavits and other documentary evidences including their position paper; (8) The hearing must be completed within ten (10) days from the date of the filing of the answer. The hearing officer concerned shall submit to the Clerk of the Commission through the fastest means of communication, his findings, reports and recommendations within five (5) days from the completion of the hearing and reception of evidence together with the complete records of the case; (9) Upon receipt of the records of the case of the findings, reports and recommendation of the hearing officer concerned, the Clerk of the Commission shall immediately docket the case consecutively and calendar the same for raffle to a division; (10) The division to whom the case is raffled, shall after consultation, assign the same to a member who shall pen the decision, within five (5) days from the date of consultation." Resolution No. 3402 clearly requires the COMELEC, through the Regional Election Director, to issue summons to the respondent candidate together with a copy of the petition and its enclosures, if any, within three (3) days from the filing of the petition for disqualification. Undoubtedly, this is to afford the respondent candidate the opportunity to answer the allegations in the petition and hear his side. To ensure compliance with this requirement, the COMELEC Rules of Procedure requires the return of the summons together with the proof of service to the Clerk of Court of the COMELEC when service has been completed, viz: "Rule 14. Summons xxx xxx xxx Section 5. Return. — When the service has been completed by personal service, the server shall give notice thereof, by registered mail, to the protestant or his counsel and shall return the summons to the Clerk of Court concerned who issued it, accompanied with the proof of service. Section 6. Proof of Service. — Proof of service of summons shall be made in the manner provided for in the Rules of Court in the Philippines." Thereafter, hearings, to be completed within ten (10) days from the filing of the Answer, must be conducted. The hearing officer is required to submit to the Clerk of the Commission his findings, reports and recommendations within five (5) days from the completion of the hearing and reception of evidence together with the complete records of the case. (a) Petitioner was not notified of the petition for his disqualification through the service of summons nor of the Motions to suspend his proclamation.TaDSCA The records of the case do not show that summons was served on the petitioner. They do not contain a copy of the summons allegedly served on the petitioner and its corresponding proof of service. Furthermore, private respondent never rebutted petitioner's repeated assertion that he was not properly notified of the petition for his disqualification because he never received summons. 71 Petitioner claims that prior to receiving a telegraphed Order from the COMELEC Second Division on May 22, 2001, directing the District Board of Canvassers to suspend his

proclamation, he was never summoned nor furnished a copy of the petition for his disqualification. He was able to obtain a copy of the petition and the May 22 Order of the COMELEC Second Division by personally going to the COMELEC Regional Office on May 23, 2001. Thus, he was able to file his Answer to the disqualification case only on May 24, 2001. More, the proclamation of the petitioner was suspended in gross violation of Section 72 of the Omnibus Election Code which provides: "Sec. 72. Effects of disqualification cases and priority. — The Commission and the courts shall give priority to cases of disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted.Nevertheless, if for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption to office." (italics supplied) In the instant case, petitioner has not been disqualified by final judgment when the elections were conducted on May 14, 2001. The Regional Election Director has yet to conduct hearing on the petition for his disqualification. After the elections, petitioner was voted in office by a wide margin of 17,903. On May 16, 2001, however, respondent Locsin filed a Most Urgent Motion for the suspension of petitioner's proclamation. The Most Urgent Motion contained a statement to the effect that a copy was served to the petitioner through registered mail. The records reveal that no registry receipt was attached to prove such service. 72 This violates COMELEC Rules of Procedure requiring notice and service of the motion to all parties, viz: "Section 4. Notice. — Notice of a motion shall be served by the movant to all parties concerned, at least three (3) days before the hearing thereof, together with a copy of the motion. For good cause shown, the motion may be heard on shorter notice, especially on matters which the Commission or the Division may dispose of on its own motion. The notice shall be directed to the parties concerned and shall state the time and place of the hearing of the motion. Section 5. Proof of Service. — No motion shall be acted upon by the Commission without proof of service of notice thereof, except when the Commission or a Division is satisfied that the rights of the adverse party or parties are not affected." Respondent's Most Urgent Motion does not fall under the exceptions to notice and service of motions. First, the suspension of proclamation of a winning candidate is not a matter which the COMELEC Second Division can dispose of motu proprio. Section 6 of R.A. No. 6646 73 requires that the suspension must be "upon motion by the complainant or any intervenor," viz: "Section 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission (COMELEC) shall continue with the trial or hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong." (italics supplied)

Second, the right of an adverse party, in this case, the petitioner, is clearly affected. Given the lack of service of the Most Urgent Motion to the petitioner, said Motion is a mere scrap of paper. 74 It cannot be acted upon by the COMELEC Second Division. On May 18, 2001 at exactly 5:00 p.m., 75 respondent Locsin filed a Second Most Urgent Motion for the suspension of petitioner's proclamation. Petitioner was served a copy of the Second Motion again by registered mail. A registry receipt 76 was attached evidencing service of the Second Most Urgent Motion to the petitioner but it does not appear when the petitioner received a copy thereof. That same day, the COMELEC Second Division issued an Order suspending the proclamation of petitioner. Clearly, the petitioner was not given any opportunity to contest the allegations contained in the petition for disqualification. The Order was issued on the very same day the Second Most Urgent Motion was filed. The petitioner could not have received the Second Most Urgent Motion, let alone answer the same on time as he was served a copy thereof by registered mail.

Under Section 6 of R.A. No. 6646, the COMELEC can suspend proclamation only when evidence of the winning candidate's guilt is strong. In the case at bar,the COMELEC Second Division did not make any specific finding that evidence of petitioner's guilt is strong. Its only basis in suspending the proclamation of the petitioner is the "seriousness of the allegations" in the petition for disqualification. Pertinent portion of the Order reads: "Without giving due course to the petition . . . the Commission (2nd Division), pursuant to Section 72 of the Omnibus Election Code in relation to Section 6,Republic Act No. 6646 . . . and considering the serious allegations in the petition, hereby directs the Provincial Board of Canvassers of Leyte to suspend the proclamation of respondent, if winning, until further orders." 77 (italics supplied) We hold that absent any finding that the evidence on the guilt of the petitioner is strong, the COMELEC Second Division gravely abused its power when it suspended his proclamation. (b) The COMELEC Second Division did not give ample opportunity to the petitioner to adduce evidence in support of his defense in the petition for his disqualification. All throughout the proceeding, no hearing was conducted on the petition for disqualification in gross violation of Section 6 of R.A. No. 6646 which specifically enjoins the COMELEC to "continue with the trial or hearing of the action, inquiry, or protest." This is also in violation of COMELEC Resolution No. 3402 requiring the Regional Election Director to complete the hearing and reception of evidence within ten (10) days from the filing of the Answer, and to submit his findings, reports, and recommendations within the five (5) days from completion of the hearing and the reception of evidence. Petitioner filed a Motion to Lift the Order of Suspension of his proclamation on May 25, 2001. Although an oral argument on this Motion was held, and the parties were allowed to file their respective memoranda, the Motion was not acted upon. Instead, the COMELEC Second Division issued a Resolution on the petition for disqualification against the petitioner. It was based on the following evidence: (a) the affidavits attached to the Petition for Disqualification; (b) the affidavits attached to the Answer; and (c) the respective memoranda of the parties. On this score, it bears emphasis that the hearing for Motion to Lift the Order of Suspension cannot be substituted for the hearing in the disqualification case. Although intrinsically linked, it is not to be supposed that the evidence of the parties in the main disqualification case are the same as those in the Motion to Lift the Order of Suspension. The parties may have other evidence which they may deem proper to present only on the hearing for the disqualification case. Also, there may be evidence which are unavailable during the hearing for the Motion to Lift the Order of Suspension but which may be available during the hearing for the disqualification case.

In the case at bar, petitioner asserts that he submitted his Memorandum merely to support his Motion to Lift the Order of Suspension. It was not intended to answer and refute the disqualification case against him. This submission was sustained by the COMELEC en banc. Hence, the members of the COMELECen banc concluded, upon consideration of the additional affidavits attached in his Urgent Manifestation, that the evidence to disqualify the petitioner was insufficient. More specifically, the ponente of the challenged Resolution of the COMELEC Second Division held: IcaHTA "Indeed, I find from the records that the May 30, 2001 hearing of the COMELEC (Second Division) concerns only the incident relating to the Motion to Lift Order of Suspension of Proclamation. It also appears that the order for the submission of the parties' respective memoranda was in lieu of the parties' oral argument on the motion. This would explain the fact that Codilla's Memorandum refers mainly to the validity of the issuance of the order of suspension of proclamation. There is, however, no record of any hearing on the urgent motion for the suspension of proclamation. Indeed, it was only upon the filing of the Urgent Manifestation by Codilla that the Members of the Commission (Second Division) and other Members of the Commission en banc had the opportunity to consider Codilla's affidavits. This time, Codilla was able to present his side, thus, completing the presentation of evidentiary documents from both sides." 78 (italics supplied) Indeed, careful reading of the petitioner's Memorandum shows that he confined his arguments in support of his Motion to Lift the Order of Suspension. In said Memorandum, petitioner raised the following issues: (a) he was utterly deprived of procedural due process, and consequently, the order suspending his proclamation is null and void; (b) the said order of suspension of proclamation has no legal and factual basis; and (c) evidence of guilt on his part is patently inexistent for the purpose of directing the suspension of his proclamation. 79 He urged the COMELEC Second Division to conduct a full dress hearing on the main disqualification case should the suspension be lifted. 80 (c) the Resolution of the COMELEC Second Division disqualifying the petitioner is not based on substantial evidence. The Resolution of the COMELEC Second Division cannot be considered to be based on substantial evidence. It relied merely on affidavits of witnesses attached to the petition for disqualification. As stressed, the COMELEC Second Division gave credence to the affidavits without hearing the affiants. In reversing said Resolution, the COMELEC en banc correctly observed: "Lacking evidence of Codilla, the Commission (Second Division) made its decisions based mainly on the allegation of the petitioner and the supporting affidavits. With this lopsided evidence at hand, the result was predictable. The Commission (Second Division) had no choice. Codilla was disqualified." 81 Worse, the Resolution of the COMELEC Second Division, even without the evidence coming from the petitioner, failed to prove the gravamen of the offense for which he was charged. 82 Petitioner allegedly violated Section 68 (a) of the Omnibus Election Code which reads: "Section 68. Disqualifications. — Any candidate who, in action or protest in which he is a party is declared by final decision of a competent court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the voters or public officials performing official functions, . . . shall be disqualified from continuing as candidate, or if he has been elected, from holding office" To be disqualified under the above-quoted provision, the following elements must be proved: (a) the candidate, personally or through his instructions, must have given money or other material consideration; and (b) the act of giving money or other material consideration must be for the purpose

of influencing, inducing, or corrupting the voters or public officials performing electoral functions. AIDcTE In the case at bar, the petition for disqualification alleged that (a) petitioner ordered the extraction, hauling and distribution of gravel and sand, and (b) his purpose was to induce and influence the voters of Kananga and Matag-ob, Leyte to vote for him. Pertinent portion of the petition reads: "[T]he respondent [herein petitioner], within the election period, took advantage of his current elective position as City Mayor of Ormoc City by illegally and unlawfully using during the prohibited period, public equipments and vehicles belonging to and owned by the City Government of Ormoc City in extracting, hauling and distributing gravel and sand to the residents and voters of the Municipalities of Kananga and Matag-ob Leyte, well within the territorial limits of the 4th Congressional District of Leyte, which acts were executed without period, and clearly for the illicit purpose of unduly inducing or directly corrupting various voters of Kananga and Matag-ob, within the 4th legislative district of Leyte, for the precise purpose of inducing and influencing the voters/beneficiaries of Kananga and Matag-ob, Leyte to cast their votes for said respondent." 83 The affidavits relied upon by the COMELEC Second Division failed to prove these allegations. For instance, Cesar A. Laurente merely stated that he saw three (3) ten-wheeler dump trucks and a Hyundai Payloader with the markings "Ormoc City Government" extracting and hauling sand and gravel from the riverbed adjacent to the property owned by the Codilla family. 84 Agripino C. Alferez and Rogelio T. Sulvera in their Joint Affidavit merely stated that they saw white trucks owned by the City Government of Ormoc dumping gravel and sand on the road of Purok 6, San Vicente, Matag-ob, Leyte. A payloader then scattered the sand and gravel unloaded by the white trucks. 85 On the other hand, Danilo D. Maglasang, a temporary employee of the City Government of Ormoc assigned to check and record the delivery of sand and gravel for the different barangays in Ormoc, stated as follows: "3. That on April 20, 2001, I was ordered by Engr. Arnel Padayo, an employee of the City Engineering Office, Ormoc City to go to Tagaytay, Kangga (sic), Leyte as that will be the source of the sand and gravel. I inquired why we had to go to Kananga but Engr. Padayao said that it's not a problem as it was Mayor Eufrocino M. Codilla, Sr. who ordered this and the property is owned by the family of Mayor Codilla. We were to deliver sand and gravel to whoever requests from Mayor Codilla." 86 Similarly, the Affidavit of Basilio Bates cannot prove the offense charged against the petitioner. He alleged that on April 18, 2001, a white truck with the marking "City Government of Ormoc" came to his lot at Montebello, Kananga, Leyte and unloaded mixed sand and that the driver of the truck told him to "vote for Codilla as a (sic) congressman during election." 87 His statement is hearsay. He has no personal knowledge of the supposed order of the petitioner to distribute gravel and sand for the purpose of inducing the voters to vote for him. The same could be said about the affidavits of Randy T. Merin, 88Alfredo C. De la Peña, 89 Miguel P. Pandac, 90 Paquito Bregeldo, Cristeta Alferez, Glicerio Rios, 91 Romulo Alkuino, Sr., 92 Abner Casas, 93 Rita Trangia, 94 and Judith Erispe 95 attached to respondent Locsin's Memorandum on the Motion to Lift the Suspension of Proclamation.

Also valueless are the affidavits of other witnesses 96 of respondent Locsin, all similarly worded, which alleged that the petitioner ordered the repair of the road in Purok 6, Barangay San Vicente, Matag-ob, Leyte and the flattening of the area where the cockfights were to be held. These

allegations are extraneous to the charge in the petition for disqualification. More importantly, these allegations do not constitute a ground to disqualify the petitioner based on Section 68 of the Omnibus Election Code. To be sure, the petition for disqualification also ascribed other election offenses against the petitioner, particularly Section 261 of the Omnibus Election Code, viz: "Section 261. Prohibited Acts. — The following shall be guilty of an election offense: (a) Vote-buying and vote-selling. — (1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or make or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity or community in order to induce anyone or the public in general, to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination or choice of a candidate in a convention or similar selection process of a political party. caIACE xxx xxx xxx (o) Use of public funds, money deposited in trust, equipment, facilities owned or controlled by the government for an election campaign. — Any person who uses under any guise whatsoever directly or indirectly, . . . (3) any equipment, vehicle, facility, apparatus, or paraphernalia owned by the government or by its political subdivisions, agencies including government-owned or controlled corporations, or by the Armed Forces of the Philippines for any election campaign or for any partisan political activity . . . ." However, the jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC jurisdiction. 97 They are criminal and not administrative in nature. Pursuant to Sections 265 and 268 of the Omnibus Election Code, the power of the COMELEC is confined to the conduct of preliminary investigation on the alleged election offenses for the purpose of prosecuting the alleged offenders before the regular courts of justice, viz: "Section 265. Prosecution. — The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted. xxx xxx xxx Section 268. Jurisdiction. — The regional trial court shall have the exclusive original jurisdiction to try and decide any criminal action or proceeding for violation of this Code, except those relating to the offense of failure to register or failure to vote which shall be under the jurisdictions of metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases." The COMELEC Second Division grievously erred when it decided the disqualification case based on Section 261(a) and (o), and not on Section 68 of theOmnibus Election Code.

(d) Exclusion of the votes in favor of the petitioner and the proclamation of respondent Locsin was done with undue haste. The COMELEC Second Division ordered the exclusion of the votes cast in favor of the petitioner, and the proclamation of the respondent Locsin, without affording the petitioner the opportunity to challenge the same. In the morning of June 15, 2001, the Provincial Board of Canvassers convened, and on the strength of the said Resolution excluding the votes received by the petitioner, certified that respondent Locsin received the highest number of votes. On this basis, respondent Locsin was proclaimed. Records reveal that the petitioner received notice of the Resolution of the COMELEC Second Division only through his counsel via a facsimile message in the afternoon of June 15, 2001 98 when everything was already fait accompli. Undoubtedly, he was not able to contest the issuance of the Certificate of Canvass and the proclamation of respondent Locsin. This is plain and simple denial of due process. The essence of due process is the opportunity to be heard. When a party is deprived of that basic fairness, any decision by any tribunal in prejudice of his rights is void. Second. The votes cast in favor of the petitioner cannot be considered "stray" and respondent cannot be validly proclaimed on that basis. The Resolution of the COMELEC Second Division in SPA No. 01-208 contains two dispositions: (1) it ruled that the petitioner was disqualified as a candidate for the position of Congressman of the Fourth District of Leyte; and (2) it ordered the immediate proclamation of the candidate who garnered the highest number of votes, to the exclusion of the respondent [herein petitioner]. As previously stated, the disqualification of the petitioner is null and void for being violative of due process and for want of substantial factual basis. Even assuming, however, that the petitioner was validly disqualified, it is still improper for the COMELEC Second Division to order the immediate exclusion of votes cast for the petitioner as stray, and on this basis, proclaim the respondent as having garnered the next highest number of votes. (a) The order of disqualification is not yet final, hence, the votes cast in favor of the petitioner cannot be considered "stray." Section 6 of R.A. No. 6646 and Section 72 of the Omnibus Election Code require a final judgment before the election for the votes of a disqualified candidate to be considered "stray." Hence, when a candidate has not yet been disqualified by final judgment during the election day and was voted for, the votes cast in his favor cannot be declared stray. To do so would amount to disenfranchising the electorate in whom sovereignty resides. 99 For in voting for a candidate who has not been disqualified by final judgment during the election day, the people voted for him bona fide, without any intention to misapply their franchise, and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of government. 100 This principle applies with greater force in the case at bar considering that the petitioner has not been declared by final judgment to be disqualified not only before but even after the elections. The Resolution of the COMELEC Second Division disqualifying the petitioner did not attain finality, and hence, could not be executed, because of the timely filing of a Motion for Reconsideration. Section 13, Rule 18 of the COMELEC Rules of Procedure on Finality of Decisions and Resolutions reads: "Sec. 13. Finality of Decisions or Resolutions. — (a) In ordinary actions, special proceedings, provisional remedies and special reliefs, a decision or resolution of the Commission en banc shall become final and executory after thirty (30) days from its promulgation.

(b) In Special Actions and Special Cases a decision or resolution of the Commission en banc shall become final and executory after five (5) days in Special Actions and Special Cases and after fifteen (15) days in all other proceedings, following their promulgation. (c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division shall become final and executory after the lapse of five (5) days in Special Actions and Special Cases and after fifteen (15) days in all other actions or proceedings, following its promulgation." (italics supplied) In this wise, COMELEC Resolution No. 4116, 101 issued in relation to the finality of resolutions or decisions in disqualification cases, provides: "This pertains to the finality of decisions or resolutions of the Commission en banc or division, particularly on Special Actions (Disqualification Cases). Special Action cases refer to the following: (a) Petition to deny due course to a certificate of candidacy; (b) Petition to declare a candidate as a nuisance candidate; (c) Petition to disqualify a candidate; and (d) Petition to postpone or suspend an election. Considering the foregoing and in order to guide field officials on the finality of decisions or resolutions on special action cases (disqualification cases) the Commission, RESOLVES, as it is hereby RESOLVED, as follows: (1) the decision or resolution of the En Banc of the Commission on disqualification cases shall become final and executory after five (5) days from its promulgation unless restrained by the Supreme Court; (2) the decision or resolution of a Division on disqualification cases shall become final and executory after the lapse of five (5) days unless a motion for reconsideration is seasonably filed; (3) where the ground for disqualification case is by reason of non-residence, citizenship, violation of election laws and other analogous cases and on the day of the election the resolution has not become final and executory the BEI shall tally and count the votes for such disqualified candidate; (4) the decision or resolution of the En Banc on nuisance candidates, particularly whether the nuisance candidate has the same name as thebona fide candidate shall be immediately executory; (5) the decision or resolution of a DIVISION on nuisance candidate, particularly where the nuisance candidate has the same name as the bona fide candidate shall be immediately executory after the lapse of five (5) days unless a motion for reconsideration is seasonably filed. In which case, the votes cast shall not be considered stray but shall be counted and tallied for the bona fide candidate.

All resolutions, orders and rules inconsistent herewith are hereby modified or repealed."

Considering the timely filing of a Motion for Reconsideration, the COMELEC Second Division gravely abused its discretion in ordering the immediate disqualification of the petitioner and ordering the exclusion of the votes cast in his favor. Section 2, Rule 19 of the COMELEC Rules of Procedure is very clear that a timely Motion for Reconsideration shall suspend the execution or implementation of the resolution, viz: Section 2. Period for filing Motion for Reconsideration. — A motion to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro forma, suspends the execution or implementation of the decision, resolution, order or ruling." (italics supplied) (b) Respondent Locsin, as a mere second placer, cannot be proclaimed. More brazen is the proclamation of respondent Locsin which violates the settled doctrine that the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified. 102 In every election, the people's choice is the paramount consideration and their expressed will must at all times be given effect. When the majority speaks and elects into office a candidate by giving him the highest number of votes cast in the election for the office, no one can be declared elected in his place. 103 In Domino v. COMELEC, 104 this Court ruled, viz: "It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed winner and imposed as representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. To simplistically assume that the second placer would have received that (sic) other votes would be to substitute our judgment for the mind of the voters. He could not be considered the first among the qualified candidates because in a field which excludes the qualified candidate, the conditions would have substantially changed. xxx xxx xxx The effect of a decision declaring a person ineligible to hold an office is only that the election fails entirely, that the wreath of victory cannot be transferred from the disqualified winner to the repudiated loser because the law then as now only authorizes a declaration in favor of the person who has obtained a plurality of votes, and does not entitle the candidate receiving the next highest number of votes to be declared elected. In such case, the electors have failed to make a choice and the election is a nullity. To allow the defeated and repudiated candidate to take over the elective position despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the people's right to elect officials of their choice." 105 Respondent Locsin proffers a distinction between a disqualification based on personal circumstances such as age, residence or citizenship and disqualification based on election offenses. She contends that the election of candidates later disqualified based on election offenses like those enumerated in Section 68 of the Omnibus Election Code should be invalidated because they violate the very essence of suffrage and as such, the votes cast in his favor should not be considered. 106 This contention is without merit. In the recent case of Trinidad v. COMELEC, 107 this Court ruled that the effect of a judgment disqualifying a candidate, after winning the election, based on personal circumstances or Section 68 of the Omnibus Election Code is the same: the second placer could not take the place of the disqualified winner. II

Whether the proclamation of respondent Locsin divested the COMELEC en banc of jurisdiction to review its validity. Respondent Locsin submits that the COMELEC en banc has no jurisdiction to annul her proclamation. She maintains that the COMELEC en banc has been divested of jurisdiction to review the validity of her proclamation because she has become a member of the House of Representatives. Thus, she contends that the proper forum to question her membership to the House of Representatives is the House of Representative Electoral Tribunal (HRET). We find no merit in these contentions. First. The validity of the respondent's proclamation was a core issue in the Motion for Reconsideration seasonably filed by the petitioner. In his timely Motion for Reconsideration with the COMELEC en banc, petitioner argued that the COMELEC Second Division erred thus: "(1) in disqualifying petitioner on the basis solely of the dubious declaration of the witnesses for respondent Locsin; (2) in adopting in toto the allegations of the witnesses for respondent Locsin; and (3) in promulgating the resolution in violation of its own rules of procedure and in directing therein the immediate proclamation of the second highest 'vote getter."' (italics supplied) In support of his third assignment of error, petitioner argued that "the Second Division's directive for the immediate proclamation of the second highest vote-getter is premature considering that the Resolution has yet to become final and executory." 108 Clearly, the validity of respondent Locsin's proclamation was made a central issue in the Motion for Reconsideration seasonably filed by the petitioner. Without doubt, the COMELEC en banc has the jurisdiction to rule on the issue. The fact that the Petition for Nullity of Proclamation was filed directly with the COMELEC en banc is of no moment. Even without said Petition, the COMELECen banc could still rule on the nullity of respondent's proclamation because it was properly raised in the Motion for Reconsideration. Section 3, Article IX-C of the 1987 Constitution empowers the COMELEC en banc to review, on motion for reconsideration, decisions or resolutions decided by a division, viz: "Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decision shall be decided by the Commission en banc." Pursuant to this Constitutional mandate the COMELEC Rules of Procedure provides: "Rule 19. Motions for Reconsideration. — Section 1. Grounds for Motion for Reconsideration. — A motion for reconsideration may be filed on the grounds that the evidence is insufficient to justify the decision, order or ruling, or that the said decision, order or ruling is contrary to law. Section 2. Period for filing Motion for Reconsideration. — A motion to reconsider a decision, resolution, order, or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro forma, suspends the execution or implementation of the decision, resolution, order or ruling."

Section 3. Form and Contents of Motion for Reconsideration. — The motion shall be verified and shall point out specifically the findings or conclusions of the decision, resolution, order or ruling which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or resolutions. Section 4. Effect of Motion for Reconsideration on Period to Appeal. — A motion to reconsider a decision, resolution, order or ruling when not pro forma, suspends the running of the period to elevate the matter to the Supreme Court. Section 5. How Motion for Reconsideration Disposed Of. — Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc. Section 6. Duty of the Clerk of Court of the Commission to set Motion for Hearing. — The Clerk of Court concerned shall calendar the motion for reconsideration for the resolution of the Commission en banc within ten (10) days from the certification thereof." (italics supplied) Since the petitioner seasonably filed a Motion for Reconsideration of the Order of the Second Division suspending his proclamation and disqualifying him, the COMELEC en banc was not divested of its jurisdiction to review the validity of the said Order of the Second Division. The said Order of the Second Division was yet unenforceable as it has not attained finality; the timely filing of the motion for reconsideration suspends its execution. It cannot, thus, be used as the basis for the assumption in office of the respondent as the duly elected Representative of the 4th legislative district of Leyte. Second. It is the House of Representatives Electoral Tribunal (HRET) which has no jurisdiction in the instant case. Respondent contends that having been proclaimed and having taken oath as representative of the 4th legislative district of Leyte, any question relative to her election and eligibility should be brought before the HRET pursuant to Section 17 of Article VI of the 1987 Constitution. 109 We reject respondent's contention. (a) The issue on the validity of the Resolution of the COMELEC Second Division has not yet been resolved by the COMELEC en banc. To stress again, at the time of the proclamation of respondent Locsin, the validity of the Resolution of the COMELEC Second Division was seasonably challenged by the petitioner in his Motion for Reconsideration. The issue was still within the exclusive jurisdiction of the COMELEC en banc to resolve. Hence, the HRET cannot assume jurisdiction over the matter. IEaCDH

In Puzon vs. Cua, 110 even the HRET ruled that the "doctrinal ruling that once a proclamation has been made and a candidate-elect has assumed office, it is this Tribunal that has jurisdiction over an election contest involving members of the House of Representatives, could not have been immediately applicable due to the issue regarding the validity of the very COMELEC pronouncements themselves." This is because the HRET has no jurisdiction to review resolutions or decisions of the COMELEC, whether issued by a division or en banc. (b) The instant case does not involve the election and qualification of respondent Locsin.

Respondent Locsin maintains that the proper recourse of the petitioner is to file a petition for quo warranto with the HRET. A petition for quo warranto may be filed only on the grounds of ineligibility and disloyalty to the Republic of the Philippines. 111 In the case at bar, neither the eligibility of the respondent Locsin nor her loyalty to the Republic of the Philippines is in question. There is no issue that she was qualified to run, and if she won, to assume office. A petition for quo warranto in the HRET is directed against one who has been duly elected and proclaimed for having obtained the highest number of votes but whose eligibility is in question at the time of such proclamation. It is evident that respondent Locsin cannot be the subject of quo warranto proceeding in the HRET. She lost the elections to the petitioner by a wide margin. Her proclamation was a patent nullity. Her premature assumption to office as Representative of the 4th legislative district of Leyte was void from the beginning. It is the height of absurdity for the respondent, as a loser, to tell petitioner Codilla, Sr., the winner, to unseat her via a quo warranto proceeding. III Whether it is the ministerial duty of the public respondents to recognize petitioner Codilla, Sr. as the legally elected Representative of the 4th legislative district of Leyte vice respondent Locsin. Under Rule 65, Section 3 of the 1997 Rules of Civil Procedure, any person may file a verified petition for mandamus "when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law." 112 For a petition for mandamus to prosper, it must be shown that the subject of the petition formandamus is a ministerial act or duty, and not purely discretionary on the part of the board, officer or person, and that the petitioner has a well-defined, clear and certain right to warrant the grant thereof. The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment." 113 In the case at bar, the administration of oath and the registration of the petitioner in the Roll of Members of the House of Representatives representing the 4th legislative district of Leyte is no longer a matter of discretion on the part of the public respondents. The facts are settled and beyond dispute: petitioner garnered 71,350 votes as against respondent Locsin who only got 53,447 votes in the May 14, 2001 elections. The COMELEC Second Division initially ordered the proclamation of respondent Locsin; on Motion for Reconsideration the COMELEC en banc set aside the order of its Second Division and ordered the proclamation of the petitioner. The Decision of the COMELEC en banc has not been challenged before this Court by respondent Locsin and said Decision has become final and executory. In sum, the issue of who is the rightful Representative of the 4th legislative district of Leyte has been finally settled by the COMELEC en banc, the constitutional body with jurisdiction on the matter. The rule of law demands that its Decision be obeyed by all officials of the land. There is no alternative to the rule of law except the reign of chaos and confusion.

IN VIEW WHEREOF, the Petition for Mandamus is granted. Public Speaker of the House of Representatives shall administer the oath of petitioner EUFROCINO M. CODILLA, SR., as the dulyelected Representative of the 4th legislative district of Leyte. Public respondent Secretary-General shall likewise register the name of the petitioner in the Roll of Members of the House of Representatives after he has taken his oath of office. This decision shall be immediately executory. ESO ORDERED. ||| (Codilla, Sr. v. De Venecia, G.R. No. 150605, [December 10, 2002], 442 PHIL 139-190) [G.R. No. 189034. January 12, 2010.] CELESTINO A. MARTINEZ III, petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND BENHUR L. SALIMBANGON,respondents.

DECISION

VILLARAMA, JR., J p: This petition for certiorari under Rule 65 seeks to nullify the Decision 1 dated May 28, 2009 of the House of Representatives Electoral Tribunal in HRET Case No. 07-035 dismissing the election protest and declaring private respondent as the duly elected Representative of the Fourth Legislative District of Cebu, and the Resolution 2 dated July 30, 2009 denying petitioner's motion for reconsideration thereof. The Facts In the May 14, 2007 elections, petitioner Martinez and private respondent Salimbangon were among the candidates for Representative in the Fourth Legislative District of Cebu Province. On March 29, 2007, Edilito C. Martinez, a resident of Barangay Tambongon, Daan-Bantayan, Cebu, filed his certificate of candidacy for the same position. On April 3, 2007, Martinez filed a petition to declare Edilito C. Martinez a nuisance candidate. 3 However, the Commission on Elections Second Division issued its Resolution declaring Edilito C. Martinez a nuisance candidate only on June 12, 2007 or almost one (1) month after the elections. On July 9, 2007, Salimbangon was proclaimed winner in the congressional elections for the Fourth Legislative District of Cebu on the basis of official results showing that he garnered sixtyseven thousand two hundred seventy-seven (67,277) votes as against Martinez who garnered sixty-seven thousand one hundred seventy-three (67,173) votes, or a difference of one hundred four (104) votes. Martinez filed an Election Protest Ad Cautelam on July 18, 2007 and on July 26, 2007, the HRET granted his motion to convert the same into a Regular Protest of all one thousand one hundred twenty-nine (1,129) precincts of the Fourth Legislative District of Cebu. cCSTHA The election protest is based on three hundred (300) ballots more or less with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative which the Board of Election Inspectors (BEI) did not count for Martinez on the ground that there was another congressional candidate (Edilito C. Martinez) who had the same surname. Martinez further alleged that he lost several thousand votes as a result of incorrect appreciation of ballots not counted in his favor while clearly marked ballots, groups of ballots which appeared to have been prepared by one (1) person, individual ballots which appeared to have been prepared by two (2) or more persons, and

fake and unofficial ballots were read and counted in favor of Salimbangon. He also claimed that the votes reflected in the election returns were unlawfully increased in favor of Salimbangon while votes in his favor were unlawfully decreased. 4 Salimbangon filed his Answer with Counter-Protest stating that the Minutes of Voting (MOV) inside the ballot boxes in all the protested precincts contain no recorded objections regarding straying of votes claimed by Martinez, and that it was very seldom, if at all, that there were ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative. He counterprotested 954 precincts on grounds of coercion/intimidation and duress; massive votebuying; "lansadera"; misreading/miscounting/misappreciation of votes; and other electoral anomalies and irregularities. During the revision, ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative were not counted and temporarily classified as stray. These comprise majority of the 9,831 stray ballots claimed by Martinez. 5 HRET Ruling In its Decision dated May 28, 2009, the HRET resolved each of the claims and objections respectively raised by protestant and protestee applying the rules for appreciation of ballots. The Tribunal recognized as most crucial the issue of whether or not ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative should be counted in favor of Martinez. Thus, the election protest "will rise or fall on how the Tribunal [appreciates said] ballots." 6 Ruling on the issue, the HRET sustained the BEI in considering the ballots as stray in accordance with Sec. 211 (1) of the Omnibus Election Codewhich provides: "Where only the first name of a candidate or only his surname is written, the vote for such candidate is valid, if there is no other candidate with the same first name or surname for the same office." 7 [EMPHASIS SUPPLIED.] cHCSDa Since the name of Edilito C. Martinez was still included in the official list of candidates on election day (May 14, 2007), the HRET held that five thousand four hundred one (5,401) ballots with "MARTINEZ" or "C. MARTINEZ" only written on the line for Representative were properly denied on the ground that there was no way of determining the real intention of the voter. These ballots were included in the 7,544 ballots denied as votes for Martinez in 961 precincts. 8 Commiserating with Martinez on the delayed resolution of SPA Case No. 07-133 (PES), the HRET stated: "We sympathize to (sic) the protestant that he is the victim of the inaction of the Comelec in failing to decide the petition to disqualify Edilito C. Martinez as nuisance candidate on or before the May 14, 2007 elections. After all, it appears that the latter did not even lift a finger to oppose the petition for his declaration as nuisance candidate and that per its decision rendered only twenty-nine (29) days after the May 14, 2007 elections, Edilito C. Martinez was indeed a nuisance candidate. "As it is, the delay committed by the Comelec in deciding the petition to disqualify Edilito C. Martinez as nuisance candidate on or before May 14, 2007 election did not only cause injustice to herein protestant but worst, had resulted to (sic) the disenfranchisement of five thousand four hundred one (5,401) electorates whose votes could have changed the number of votes garnered by the parties herein if not changed altogether the outcome of the election itself." 9 The final overall results of recount and appreciation of ballots, election documents and other evidence in the entire 1,129 precincts as determined by the HRET are as follows : 10 Overall Fourth District of Cebu Votes

1]

Votes per physical count * in 961 precincts where there was ballot appreciation

2]

Votes in 12 precincts ** without ballots found during revision (based on election returns)

3]

Votes per election returns in 156 precincts in which several spurious ballots were placed after elections, counting and/or canvassing of votes

Less: Add:

Objected ballots rejected *** Claimed ballots admitted *** Unclaimed ballots admitted *** Restored Ballots

Total Votes in the Contested Precincts After Appreciation of Evidence PLURALITY OF PROTESTEE'S VOTES

PROTESTANT PROTESTEE 57,758 57,132

998

660

9,937

7,815

68,693 4,333 2,287 8

65,607 860 2,348 11 2

66,655

67,108

453

On the basis of the foregoing, the HRET dismissed the election protest, affirmed the proclamation of Salimbangon and declared him to be the duly elected Representative of the Fourth Legislative District of Cebu, having won by a plurality margin of 453 votes. Martinez moved for reconsideration of the Decision, but the HRET denied it by Resolution dated July 30, 2009. 11 The Petition Petitioner alleges that the HRET gravely abused its discretion when it failed to credit the "MARTINEZ" or "C. MARTINEZ" votes in his favor despite the finality of the COMELEC resolution declaring Edilito C. Martinez a nuisance candidate. Petitioner argues that the Decision disenfranchised 5,401 voters when it ruled that said votes cannot be counted as votes for him since "there is no way of determining the real intention of the voter", in utter disregard of the mandate of Art. VIII, Sec. 14 of the Constitution. He maintains that there is no clear and good reason to justify the rejection of those 5,401 ballots, and points out that at the time private respondent was proclaimed by the Board of Canvassers, only 104 votes separated private respondent from him (private respondent was credited with 67,277 votes as against 67,173 votes of petitioner, while nuisance candidate Edilito C. Martinez got a measly 363 votes.) 12 Petitioner further alleges that the HRET invalidated ballots for him without stating the legal and factual bases therefor, and on grounds other than the objections raised by private respondent. He contends that the HRET erred in concluding that the ruling in Bautista v. Commission on Elections 13cannot be applied in view of circumstances which supposedly distinguish the present case from Bautista. Finally, petitioner cites the dissenting opinion of the Honorable Associate Justice Antonio Eduardo B. Nachura who disagreed with the majority ruling and posited that the final declaration by COMELEC that Edilito C. Martinez was a nuisance candidate and the

cancellation of his certificate of candidacy should be deemed effective as of the day of the election. 14 In his Comment, private respondent assails the apparent desire of petitioner for this Court to review the physical appreciation of ballots conducted by the HRET when he assigned as issues the alleged erroneous invalidation by the HRET of petitioner's ballots which were ruled as written by two (2) persons, and when he even appreciated ballots that were declared by the HRET as marked ballots. Private respondent details the mostly post-election anomalies and irregularities, particularly in Bogo City, perpetrated by the petitioner as found by the HRET such as tampering of election returns and statement of votes and vote padding/tampering. As to the "MARTINEZ" and "C. MARTINEZ" ballots, private respondent asserts that the HRET correctly refused to credit petitioner with these votes, stressing that there were admittedly three (3) candidates for the position of Representative for the Fourth Legislative District of Cebu as of May 14, 2007. Not a single voter in the district knew of any nuisance congressional candidate on election day. Private respondent argues that it would be illogical and most unfair to count the said ballots in favor of petitioner as it is erroneous to base the voter's intent on the supervening circumstance which was inexistent on the date the ballot was accomplished and cast. The HRET likewise did not err in holding that the Bautista ruling is inapplicable, there being no announced declaration yet of one (1) of the candidates as nuisance candidate when the voters cast their ballots on election day. EcHaAC The Issues What then is the legal effect of declaring a nuisance candidate as such in a final judgment after the elections? Should ballots containing only the similar surname of two (2) candidates be considered as stray votes or counted in favor of the bona fide candidate? Our Ruling The Court finds the petition meritorious. Section 69 of the Omnibus Election Code provides: "Section 69. Nuisance candidates. — The Commission may motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate." Republic Act No. 6646, otherwise known as "The Electoral Reforms Law of 1987" provides in Section 5 thereof: "SEC. 5. Procedure in Cases of Nuisance Candidates. — (a) A verified petition to declare a duly registered candidate as a nuisance candidate under Section 69 of Batas Pambansa Blg. 881 shall be filed personally or through duly authorized representative with the Commission by any registered candidate for the same office within five (5) days from the last day for the filing of certificates of candidacy. Filing by mail shall not be allowed. "(b) Within three (3) days from the filing of the petition, the Commission shall issue summons to the respondent candidate together with a copy of the petition and its enclosures, if any.

"(c) The respondent shall be given three (3) days from receipt of the summons within which to file his verified answer (not a motion to dismiss) to the petition, serving copy thereof upon the petitioner. Grounds for a motion to dismiss may be raised as affirmative defenses. "(d) The Commission may designate any of its officials who are lawyers to hear the case and receive evidence. The proceeding shall be summary in nature. In lieu of oral testimonies, the parties may be required to submit position papers together with affidavits or counter-affidavits and other documentary evidence. The hearing officer shall immediately submit to the Commission his findings, reports, and recommendations within five (5) days from the completion of such submission of evidence. The Commission shall render its decision within five (5) days from receipt thereof. acITSD "(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy thereof by the parties, be final and executory unless stayed by the Supreme Court. "(f) The Commission shall within twenty-four hours, through the fastest available means, disseminate its decision or the decision of the Supreme Court to the city or municipal election registrars, boards of election inspectors and the general public in the political subdivision concerned." [EMPHASIS SUPPLIED.] By their very nature, proceedings in cases of nuisance candidates require prompt disposition. The declaration of a duly registered candidate as nuisance candidate results in the cancellation of his certificate of candidacy. The law mandates the Commission and the courts to give priority to cases of disqualification to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought. 15In many instances, however, proceedings against nuisance candidates remained pending and undecided until election day and even after canvassing of votes had been completed. Here, petitioner sought to declare Edilito C. Martinez as a nuisance candidate immediately after the latter filed his certificate of candidacy as an independent candidate and long before the May 14, 2007 elections. Petitioner averred that Edilito C. Martinez who was a driver of a motorcycle for hire, locally known as "habal-habal", did not own any real property in his municipality, had not filed his income tax return for the past years, and being an independent candidate did not have any political machinery to propel his candidacy nor did he have political supporters to help him in his campaign. Petitioner claimed that Edilito C. Martinez after the filing of his certificate of candidacy, was never heard of again and neither did he start an electoral campaign. Given such lack of bona fide intention of Edilito C. Martinez to run for the office for which he filed a certificate of candidacy, petitioner contended that his candidacy would just cause confusion among the voters by the similarity of their surnames, considering that petitioner was undeniably the frontrunner in the congressional district in the Fourth Legislative District of Cebu as his mother, Rep. Clavel A. Martinez, was the incumbent Representative of the district. 16 The COMELEC's Second Division granted the petition and declared Edilito C. Martinez as a nuisance candidate. It noted that the failure of said candidate to answer and deny the accusations against him clearly disclosed the fact that he had no bona fide intention to run for public office. Thus, it concluded that his only purpose for filing his certificate of candidacy was to put the election process into mockery and cause confusion among the voters by the similarity of his surname with that of petitioner. 17 No motion for reconsideration was filed by Edilito C. Martinez and neither did he appeal before this Court the resolution declaring him a nuisance candidate. Said decision had thus become final and executory after five (5) days from its promulgation in accordance with the

COMELEC Rules of Procedure. 18 But having come too late, the decision was an empty victory for petitioner who lost to private respondent by a slim margin of 104 votes. In his election protest, petitioner sought to have ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative counted in his favor. The HRET, however, considered such ballots numbering 5,401 as stray and rejected petitioner's argument that the ruling in Bautista v. Comelec (supra) is applicable in this case. Bautista involves a mayoralty candidate (Cipriano "Efren" Bautista) during the May 11, 1998 elections who filed a petition to declare as nuisance candidate Edwin "Efren" Bautista, who filed a certificate of candidacy for the same position at the last minute. The COMELEC granted the petition, declared Edwin Bautista a nuisance candidate and ordered the cancellation of his certificate of candidacy. Consequently, Edwin Bautista's name was not included in the official list of candidates for the position of mayor of Navotas City and copies of the list were distributed to the boards of election inspectors (BEI). On May 8, 1998, Edwin filed a motion for reconsideration and as a result, the Election Officer of Navotas issued a directive to the BEI to include the name of Edwin Bautista in the certified list of candidates, only to recall said order in the afternoon. In view of the conflicting directives, counsel for petitioner requested the COMELEC that instructions be given to the BEI to tally separately the votes for "EFREN BAUTISTA", "EFREN", "E. BAUTISTA" and "BAUTISTA." HDCAaS On May 13, 1998, the COMELEC denied Edwin Bautista's motion for reconsideration. When the canvass of the election returns was commenced, the Municipal Board of Canvassers refused to canvass as part of the valid votes of petitioner the separate tallies of ballots on which were written "EFREN BAUTISTA," "EFREN," "E. BAUTISTA" and "BAUTISTA." Petitioner then filed with the COMELEC a petition to declare illegal the proceedings of the Municipal Board of Canvassers. Meanwhile Edwin Bautista filed a petition for certiorari with this Court assailing the actions of COMELEC declaring him a nuisance candidate and ordering the cancellation of his certificate of candidacy. The Court dismissed said petition finding no grave abuse of discretion committed by the COMELEC and subsequently also denied with finality the motion for reconsideration filed by Edwin Bautista. As to the petition to declare as illegal the proceedings of the Municipal Board of Canvassers for its refusal to include the stray votes in the separate tally sheet, the COMELEC dismissed the same, citing Sec. 211 (4) 19 of the Omnibus Election Code. Petitioner Bautista elevated the case to the Supreme Court which ruled in his favor, thus: "At the outset and initially setting aside all the ramifications of the substantive issue of the instant petition, the primordial concern of the Court is to verify whether or not on the day of the election, there was only one 'Efren Bautista' as a validly registered candidate as far as the electorate was concerned. "xxx xxx xxx "Edwin Bautista moved for reconsideration on May 8, 1998. Unfortunately, said motion was not resolved as of election day. Technically, the April 30, 1998 decision was not yet final as of May 11, 1998, and this technicality created serious problems on election day. "xxx xxx xxx "An analysis of the foregoing incidents shows that the separate tallies were made to remedy any prejudice that may be caused by the inclusion of a potential nuisance candidate in the Navotas mayoralty race. Such inclusion was brought about by technicality, specifically Edwin Bautista's filing of a motion for reconsideration, which prevented the April 30, 1998 resolution disqualifying him from becoming final at that time.

"Ideally, the matter should have been finally resolved prior to election day. Its pendency on election day exposed petitioner to the evils brought about by the inclusion of a then potential, later shown in reality to be nuisance candidate. We have ruled that a nuisance candidate is one whose certificate of candidacy is presented and filed to cause confusion among the electorate by the similarity of the names of the registered candidate or by other names which demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate (Fernandez vs. Fernandez, 36 SCRA 1 [1970]). TAIaHE "It must be emphasized that the instant case involves a ground for disqualification which clearly affects the voters' will and causes confusion that frustrates the same. This is precisely what election laws are trying to protect. They give effect to, rather than frustrate, the will of the voter. Thus, extreme caution should be observed before any ballot is invalidated. Further, in the appreciation of ballots, doubts are resolved in favor of their validity. (Silverio vs. Castro, 19 SCRA 521 [1967]). "xxx xxx xxx "As discussed in the COMELEC's April 30, 1998 decision, in accordance with Section 69, Edwin Bautista was found to be a nuisance candidate. First and foremost, he was running under the name of Edwin 'Efren' Bautista, when it had been established that he was really known as 'Boboy' or 'Boboy Tarugo.' Second, the following circumstances saliently demonstrate that he had no bona fide intention of running for the office for which he filed his certificate of candidacy: He is said to be engaged in a 'buy and sell' business, but he has no license therefor. He declared that he had a monthly income of P10,000.00 but with expenses totalling P9,000.00. He does not own any real property. He did not file his income tax return for the years 1995 and 1996 and when asked why, he said he did not have any net income and that he was only earning enough to defray household expenses. He even violated COMELEC rules since he failed to submit the names of individuals who paid for his campaign materials as well as the printing press he dealt with. He did not have a political line-up and had no funds to support his campaign expenses. He merely depended on friends whose names he did not submit to the COMELEC. And as straightforwardly found by the COMELEC, he 'has not demonstrated any accomplishment/achievement in his twenty-six (26) years of existence as a person that would surely attract the electorate to choose him as their representative in government.' "In contrast, it was shown that petitioner had previously held under his name Cipriano and appellation, 'Efren' Bautista, various elective positions, namely: Barangay Captain of Navotas in 1962, Municipal Councilor of Navotas in 1970, and Vice-Mayor of Navotas in 1980. He is a duly registered Naval Architect and Marine Engineer, and a member of various civic organizations such as the Rotary Club of Navotas and the Philippine Jaycees. "It seems obvious to us that the votes separately tallied are not really stray votes. Then COMELEC Chairman Bernardo P. Pardo himself, now a respected member of the Court, in his May 14, 1998 Memorandum, allowed the segregation of the votes for "Bautista," "Efren," and "Efren Bautista," and "E. Bautista" into a separate improvised tally, for the purpose of later counting the votes. In fine, the COMELEC itself validated the separate tallies since they were meant to be used in the canvassing later on to the actual number of votes cast. These separate tallies actually made the will of the electorate determinable despite the apparent confusion caused by a potential nuisance candidate. What remained unsaid by

the COMELEC Chairman was the fact that as early as May 13, 1998, the COMELEC had already spoken and stated its final position on the issue of whether or not Edwin Bautista is a nuisance candidate. It had already denied Edwin's motion for reconsideration in its May 13, 1998 Order . . . "xxx xxx xxx "This important detail only shows that as of May 14, 1998, when Chairman Pardo issued the aforestated Memorandum, Edwin Bautista had already been finally declared as a nuisance candidate by the COMELEC. And when Edwin Bautista elevated the matter to this Court, we upheld such declaration. How then can we consider valid the votes for Edwin Bautista whom we finally ruled as disqualified from the 1998 Navotas mayoralty race? That is like saying one thing and doing another. These are two incompatible acts the contrariety and inconsistency of which are all too obvious." 20[EMPHASIS SUPPLIED.] caADSE Petitioner now invokes this Court's pronouncement in Bautista to the effect that votes indicating only the surname of two (2) candidates should not be considered as stray but counted in favor of the bona fide candidate after the other candidate with a similar surname was declared a nuisance candidate. In refusing to apply the ruling in Bautista, the HRET said that the factual circumstances in said case are different, thus: "Protestant strongly asserts that the 'MARTINEZ' or 'C. MARTINEZ' only votes be counted in his favor invoking the ruling in the case of Bautista vs. Comelec,G.R. No. 133840, November 13, 1998 (298 SCRA 480) where the Supreme Court held that the final and conclusive ruling on the declaration of a nuisance candidate retroacts on the day of the election. "We disagree. "While the Bautista vs. Comelec case also involves a candidate declared as nuisance by the Comelec, the case herein is not on all fours with it. . . . "xxx xxx xxx "It is clear from the foregoing facts of the Bautista case that the nuisance candidate, Edwin Bautista, was declared as such on April 30, 1998, eleven (11) days before the May 11, 1998 elections. Although the decision was not yet final on Election Day because of a Motion for Reconsideration that Edwin Bautista had filed on May 8, 1998, nevertheless, his name was not included in the list of candidates for the position of Mayor for Navotas. This is not the situation in the present case for Edilito C. Martinez was not yet declared disqualified during the May 14, 2007 elections. There were, therefore, two (2) congressional candidates on the day of the election with "MARTINEZ" as surname, Celestino A. Martinez and Edilito C. Martinez. "More importantly, in the Bautista case, while the Comelec's decision declaring Edwin Bautista a nuisance candidate had not yet attained finality on election day, May 11, 1998, the voters of Navotas were informed of such disqualification by virtue of newspaper releases and other forms of notification.The voters in said case had constructive as well as actual knowledge of the action of the Comelec delisting Edwin Bautista as a candidate for mayor. This is not so in the present case for Edilito C. Martinez was not yet disqualified as nuisance candidate during the May 14, 2007 elections. There were no newspaper releases and other forms of notification to the voters of the Fourth District of Cebu on or before May 14, 2007 elections that Edilito C. Martinez was disqualified as a nuisance candidate." 21 [EMPHASIS SUPPLIED.]

It is clear that Bautista is anchored on the factual determination that the COMELEC resolution declaring Edwin Bautista a nuisance candidate was already final since his motion for reconsideration was already denied by the Commission when canvassing of the votes started. Hence, the segregated and separately tallied votes containing only the similar first names/nicknames and surnames of the two (2) candidates were considered as not really stray votes. We held that the separate tallies validated by the COMELEC actually made the will of the electorate determinable despite the apparent confusion caused by a nuisance candidate. DSIaAE In the case at bar, there was no segregation or separate tally of votes for petitioner. Unlike in Bautista, there was simply no opportunity for petitioner to request the segregation and separate tally of expected ballots containing only the surname "MARTINEZ" as the resolution granting his petition was promulgated only a month later. The HRET, while not closing its eyes to the prejudice caused to petitioner by COMELEC's inaction and delay, as well as the disenfranchisement of the 5,401 voters, refused to credit him with those votes on the ground that there was no way of determining the real intention of the voter. We disagree. The purpose of an election protest is to ascertain whether the candidate proclaimed by the board of canvassers is the lawful choice of the people. What is sought is the correction of the canvass of votes, which was the basis of proclamation of the winning candidate. Election contests, therefore, involve the adjudication not only of private and pecuniary interests of rival candidates, but also of paramount public interest considering the need to dispel uncertainty over the real choice of the electorate. 22 In controversies pertaining to nuisance candidates as in the case at bar, the law contemplates the likelihood of confusion which the similarity of surnames of two (2) candidates may generate. A nuisance candidate is thus defined as one who, based on the attendant circumstances, has no bona fideintention to run for the office for which the certificate of candidacy has been filed, his sole purpose being the reduction of the votes of a strong candidate, upon the expectation that ballots with only the surname of such candidate will be considered stray and not counted for either of them. In elections for national positions such as President, Vice-President and Senator, the sheer logistical challenge posed by nuisance candidates gives compelling reason for the Commission to exercise its authority to eliminate nuisance candidates who obviously have no financial capacity or serious intention to mount a nationwide campaign. Thus we explained in Pamatong v. Commission on Elections: 23 "The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly.Towards this end, the State takes into account the practical considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion, not to mention the increased allocation of time and resources in preparation for the election. These practical difficulties should, of course, never exempt the State from the conduct of a mandated electoral exercise. At the same time, remedial actions should be available to alleviate these logistical hardships, whenever necessary and proper. Ultimately, a disorderly election is not merely a textbook example of inefficiency, but a rot that erodes faith in our democratic institutions. As the United States Supreme Court held: [T]here is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization and its candidates on the ballot — the interest, if no

other, in avoiding confusion, deception and even frustration of the democratic [process]. TcEaAS "xxx xxx xxx "There is a need to limit the number of candidates especially in the case of candidates for national positions because the election process becomes a mockery even if those who cannot clearly wage a national campaign are allowed to run. Their names would have to be printed in the Certified List of Candidates, Voters Information Sheet and the Official Ballots. These would entail additional costs to the government. . . . "The preparation of ballots is but one aspect that would be affected by allowance of "nuisance candidates" to run in the elections. Our election laws provide various entitlements for candidates for public office, such as watchers in every polling place, watchers in the board of canvassers, or even the receipt of electoral contributions. Moreover, there are election rules and regulations the formulations of which are dependent on the number of candidates in a given election. "Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling. The organization of an election with bona fidecandidates standing is onerous enough. To add into the mix candidates with no serious intentions or capabilities to run a viable campaign would actually impair the electoral process. . . . "xxx xxx xxx" 24 [EMPHASIS SUPPLIED] Given the realities of elections in our country and particularly contests involving local positions, what emerges as the paramount concern in barring nuisance candidates from participating in the electoral exercise is the avoidance of confusion and frustration of the democratic process by preventing a faithful determination of the true will of the electorate, more than the practical considerations mentioned in Pamatong. A report published by the Philippine Center for Investigative Journalism in connection with the May 11, 1998 elections indicated that the tactic of fielding nuisance candidates with the same surnames as leading contenders had become one (1) "dirty trick" practiced in at least 18 parts of the country. The success of this clever scheme by political rivals or operators has been attributed to the last-minute disqualification of nuisance candidates by the Commission, notably its "slow-moving" decision-making. 25 As illustrated in Bautista, the pendency of proceedings against a nuisance candidate on election day inevitably exposes the bona fide candidate to the confusion over the similarity of names that affects the voter's will and frustrates the same. It may be that the factual scenario in Bautista is not exactly the same as in this case, mainly because the Comelec resolution declaring Edwin Bautista a nuisance candidate was issued before and not after the elections, with the electorate having been informed thereof through newspaper releases and other forms of notification on the day of election. Undeniably, however, the adverse effect on the voter's will was similarly present in this case, if not worse, considering the substantial number of ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative — over five thousand — which have been declared as stray votes, the invalidated ballots being more than sufficient to overcome private respondent's lead of only 453 votes after the recount. TcHDIA Bautista upheld the basic rule that the primordial objective of election laws is to give effect to, rather than frustrate, the will of the voter. The inclusion of nuisance candidates turns the electoral exercise into an uneven playing field where the bona fide candidate is faced with the prospect of having a significant number of votes cast for him invalidated as stray votes by the mere presence of another candidate with a similar surname. Any delay on the part of the COMELEC increases the probability of votes lost in this manner. While political campaigners try to

minimize stray votes by advising the electorate to write the full name of their candidate on the ballot, still, election woes brought by nuisance candidates persist. The Court will not speculate on whether the new automated voting system to be implemented in the May 2010 elections will lessen the possibility of confusion over the names of candidates. What needs to be stressed at this point is the apparent failure of the HRET to give weight to relevant circumstances that make the will of the electorate determinable, following the precedent in Bautista. These can be gleaned from the findings of the Commission on the personal circumstances of Edilito C. Martinez clearly indicating lack of serious intent to run for the position for which he filed his certificate of candidacy, foremost of which is his sudden absence after such filing. In contrast to petitioner who is a well-known politician, a former municipal mayor for three (3) terms and a strong contender for the position of Representative of the Fourth Legislative District of Cebu (then occupied by his mother), it seems too obvious that Edilito C. Martinez was far from the voters' consciousness as he did not even campaign nor formally launch his candidacy. The HRET likewise failed to mention the total number of votes actually cast for Edilito C. Martinez, which can support petitioner's contention that the "MARTINEZ" and "C. MARTINEZ" votes could not have been intended as votes for Edilito C. Martinez. Petitioner should not be prejudiced by COMELEC's inefficiency and lethargy. Nor should the absence of objection over straying of votes during the actual counting bar petitioner from raising the issue in his election protest. The evidence clearly shows that Edilito C. Martinez, who did not even bother to file an answer and simply disappeared after filing his certificate of candidacy, was an unknown in politics within the district, a "habal-habal" driver who had neither the financial resources nor political support to sustain his candidacy. The similarity of his surname with that of petitioner was meant to cause confusion among the voters and spoil petitioner's chances of winning the congressional race for the Fourth Legislative District of Cebu. As it turned out, there were thousands of ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative, votes considered stray by the BEI and not counted in favor of petitioner, and which the HRET affirmed to be invalid votes. Had the Commission timely resolved the petition to declare Edilito C. Martinez a nuisance candidate, all such ballots with "MARTINEZ" or "C. MARTINEZ" would have been counted in favor of petitioner and not considered stray, pursuant to COMELEC Resolution No. 4116, 26 issued in relation to the finality of resolutions or decisions in disqualification cases, which provides: "This pertains to the finality of decisions or resolutions of the Commission en banc or division, particularly on Special Actions (Disqualification Cases). EcIDaA Special Action cases refer to the following: (a) Petition to deny due course to a certificate of candidacy; (b) Petition to declare a candidate as a nuisance candidate; (c) Petition to disqualify a candidate; and (d) Petition to postpone or suspend an election. Considering the foregoing and in order to guide field officials on the finality of decisions or resolutions on special action cases (disqualification cases) the Commission, RESOLVES, as it is hereby RESOLVED, as follows: (1) the decision or resolution of the En Banc of the Commission on disqualification cases shall become final and executory after five (5) days from its promulgation unless restrained by the Supreme Court; xxx xxx xxx

(4) the decision or resolution of the En Banc on nuisance candidates, particularly whether the nuisance candidate has the same name as the bona fide candidate shall be immediately executory; (5) the decision or resolution of a DIVISION on nuisance candidate, particularly where the nuisance candidate has the same name as the bona fide candidate shall be immediately executory after the lapse of five (5) days unless a motion for reconsideration is seasonably filed. In which case, the votes cast shall not be considered stray but shall be counted and tallied for the bona fide candidate. All resolutions, orders and rules inconsistent herewith are hereby modified or repealed." [EMPHASIS SUPPLIED.] We held in several cases that the judgments of the Electoral Tribunals are beyond judicial interference, unless rendered without or in excess of their jurisdiction or with grave abuse of discretion. 27 The power of judicial review may be invoked in exceptional cases upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a clear denial of due process of law, or upon a demonstration of a very clear unmitigated error, manifestly constituting such grave abuse of direction that there has to be a remedy for such abuse. 28 Grave abuse of discretion implies capricious and whimsical exercise of judgment amounting to lack of jurisdiction, or arbitrary and despotic exercise of power because of passion or personal hostility. The grave abuse of discretion must be so patent and gross as to amount to an evasion or refusal to perform a duty enjoined by law.29 Respondent HRET gravely abused its discretion in affirming the proclamation of respondent Salimbangon as the duly elected Representative of the Fourth Legislative District of Cebu despite the final outcome of revision showing 5,401 ballots with only "MARTINEZ" or "C. "MARTINEZ" written on the line for Representative, votes which should have been properly counted in favor of petitioner and not nullified as stray votes, after considering all relevant circumstances clearly establishing that such votes could not have been intended for "Edilito C. Martinez" who was declared a nuisance candidate in a final judgment. IHTaCE Ensconced in our jurisprudence is the well-founded rule that laws and statutes governing election contests especially appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities. An election protest is imbued with public interest so much so that the need to dispel uncertainties which becloud the real choice of the people is imperative. 30 The prohibition against nuisance candidates is aimed precisely at preventing uncertainty and confusion in ascertaining the true will of the electorate. Thus, in certain situations as in the case at bar, final judgments declaring a nuisance candidate should effectively cancel the certificate of candidacy filed by such candidate as of election day. Otherwise, potential nuisance candidates will continue to put the electoral process into mockery by filing certificates of candidacy at the last minute and delaying resolution of any petition to declare them as nuisance candidates until elections are held and the votes counted and canvassed. We therefore hold that ballots indicating only the similar surname of two (2) candidates for the same position may, in appropriate cases, be counted in favor of the bona fide candidate and not considered stray, even if the other candidate was declared a nuisance candidate by final judgment after the elections. Accordingly, the 5,401 votes for "MARTINEZ" or "C. MARTINEZ" should be credited to petitioner giving him a total of 72,056 votes as against 67,108 total votes of private respondent. Petitioner thus garnered more votes than private respondent with a winning margin of 4,948 votes. WHEREFORE, the petition is GRANTED. The Decision dated May 28, 2009 and Resolution dated July 30, 2009 of the House of Representatives Electoral Tribunal in HRET Case No. 07-035 are ANNULLED and SET ASIDE. Petitioner Celestino A. Martinez III is hereby

declared the duly elected Representative of the Fourth Legislative District of Cebu in the May 14, 2007 elections. This decision is immediately executory. Let a copy of the decision be served personally upon the parties and their counsels. No pronouncement as to costs. ||| (Martinez III v. House of Representatives Electoral Tribunal, G.R. No. 189034, [January 12, 2010], 624 PHIL 50-76) [G.R. No. 154512. November 12, 2002.] VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa City, petitioner, vs. THE COMMISSION ON ELECTIONS, THE PREPARATORY RECALL ASSEMBLY (PRA) of Puerto Princesa City, PRA Interim Chairman Punong Bgy. MARK DAVID HAGEDORN, PRA Interim Secretary Punong Bgy. BENJAMIN JARILLA, PRA Chairman and Presiding Officer Punong Bgy. EARL S. BUENVIAJE and PRA Secretary Punong Bgy. CARLOS ABALLA, JR., respondents. [G.R. No. 154683. November 12, 2002.] VICENTE S. SANDOVAL, ELECTIONS, respondent.

JR., petitioner,

vs.

THE

COMMISSION

ON

[G.R. Nos. 155083-84. November 12, 2002.] MA. FLORES P. ADOVO, MERCY E. GILO and BIENVENIDO OLLAVE, SR., petitioners, vs. THE COMMISSION ON ELECTIONS, and EDWARD S. HAGEDORN, respondents. Stephen V. Jaromay for petitioners. George Erwin M. Garcia, Dela Cruz Albano & Associates and M.M. Lazaro & Associates for E.S. Hagedorn. The Solicitor General for public respondent. Edwin B. Gastanes for petitioner in G.R. No. 154512. Aristotle Q. Sarmiento for petitioner in G.R. No. 154683. SYNOPSIS Out of the 528 members of the then incumbent barangay officials of Puerto Princesa, 312 convened themselves into a Preparatory Recall Assembly (PRA) to initiate the recall of then Puerto Princesa Mayor Victorino Dennis Socrates. The PRA passed Resolution No. 01-02, which declared their loss of confidence in Socrates and called for his recall. Thereafter, the COMELEC scheduled the campaign period and the recall election. Mr. Edward M. Hagedorn filed his certificate of candidacy and eventually won the recall election. The issues involved in these consolidated petitions are: (1) whether the COMELEC committed grave abuse of discretion in giving due course to the recall resolution and in scheduling the recall election for mayor in Puerto Princesa; and (2) whether

Hagedorn was qualified to run for mayor despite serving three consecutive full terms immediately prior to recall election. The Supreme Court ruled that it is bound by the findings of fact of the COMELEC on matters within its competence and expertise unless the findings were patently erroneous, which was not present in the case at bar. Therefore, there was no grave abuse of discretion committed by the COMELEC in upholding the validity of the Recall Resolution and in scheduling the recall election. The Court lifted the temporary restraining order enjoining the proclamation of the winning candidate for mayor in the recall election in Puerto Princesa. According to the Court, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. A recall election mid-way in a term following the third consecutive term is a subsequent election but not an immediate re-election after the third term. SYLLABUS 1. POLITICAL LAW; LOCAL GOVERNMENT CODE; ELECTIVE LOCAL OFFICIALS; THREE-TERM LIMIT; CONSTRUED. — The three-term limit rule for elective local officials is found in Section 8, Article X of the Constitution. This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known asthe Local Government Code. These constitutional and statutory provisions have two parts. The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms. After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service. Clearly, what theConstitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not immediately after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term. Neither does the Constitutionprohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of office. What the Constitutionprohibits is a consecutive fourth term. The debates in the Constitutional Commission evidently show that the prohibited election referred to by the framers of the Constitution is the immediate reelection after the third term, not any other subsequent election. DHTECc 2. ID.; ID.; ID.; ID.; INTERRUPTION IN THE CONTINUITY OF SERVICE MUST BE INVOLUNTARY; APPLICATION IN CASE AT BAR. — In Lonzanida v. Comelec, the Court had occasion to explain interruption of continuity of service in this manner: ". . . The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected." The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three-term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. . . . ." In Hagedorn's case, the nearly 15-month period he was out

of office, although short of a full term of three years, constituted an interruption in the continuity of his service as mayor. TheConstitution does not require the interruption or hiatus to be a full term of three years. The clear intent is that interruption "for any length of time," as long as the cause is involuntary, is sufficient to break an elective local official's continuity of service. 3. ID.; ID.; ID.; ID.; RECALL ELECTION; WINNER THEREOF COULD NOT BE CREDITED WITH FULL TERM FOR THE PURPOSE OF COUNTING CONSECUTIVENESS OF THE ELECTIVE OFFICIAL'S TERM OF OFFICE. — We held in Adormeo that the period an elective local official is out of office interrupts the continuity of his service and prevents his recall term from being stitched together as a seamless continuation of his previous two consecutive terms. In the instant case, we likewise hold that the nearly 15 months Hagedorn was out of office interrupted his continuity of service and prevents his recall term from being stitched together as a seamless continuation of his previous three consecutive terms. The only difference between Adormeo and the instant case is the time of the interruption. In Adormeo, the interruption occurred after the first two consecutive terms. In the instant case, the interruption happened after the first three consecutive terms. In both cases, the respondents were seeking election for a fourth term. In Adormeo, the recall term of Talaga began only from the date he assumed office after winning the recall election. Talaga's recall term did not retroact to include the tenure in office of his predecessor. If Talaga's recall term was made to so retroact, then he would have been disqualified to run in the 2001 elections because he would already have served three consecutive terms prior to the 2001 elections. One who wins and serves a recall term does not serve the full term of his predecessor but only the unexpired term. The period of time prior to the recall term, when another elective official holds office, constitutes an interruption in continuity of service. Clearly, Adormeo established the rule that the winner in the recall election cannot be charged or credited with the full term of three years for purposes of counting the consecutiveness of an elective official's terms in office. 4. ID.; ID.; ID.; ID.; ID.; THE UNEXPIRED TERM IS IN ITSELF ONE TERM FOR PURPOSE OF THREE-TERM LIMIT. — The concept of term limits is in derogation of the sovereign will of the people to elect the leaders of their own choosing. Term limits must be construed strictly to give the fullest possible effect to the sovereign will of the people. As this Court aptly stated in Borja, Jr. v. Comelec: "Thus, a consideration of the historical background of Art. X, §8 of theConstitution reveals that the members of the Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were with preventing the monopolization of political power. Indeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine years there should be no further reelection for local and legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barred from running for the same position in the succeeding election following the expiration of the third consecutive term. Monsod warned against 'prescreening candidates [from] whom the people will choose' as a result of the proposed, absolute disqualification, considering that the draft constitution contained provisions 'recognizing people's power.'" A necessary consequence of the interruption of continuity of service is the start of a new term following the interruption. An official elected in recall election serves the unexpired term of the recalled official. This unexpired term is in itself one term for purposes of counting the three-term limit.

PUNO, J., concurring opinion: 1. POLITICAL LAW; LOCAL GOVERNMENT CODE; ELECTIVE LOCAL OFFICIALS; THREE-TERM LIMIT; CONDITIONS FOR DISQUALIFICATIONS AS A RESULT THEREOF. — In the recent case of Adormeo vs. COMELEC, et al., we ruled that a mayor who assumed office via a recall election and served the unexpired portion of the mayoralty term is not considered to have served a full term for purposes of applying the three-term limit. . . . Citing the Borja and Lonzanidarulings, we ruled that Talaga, Jr. was not disqualified as the two conditions for disqualifications, namely (1) the elective

official concerned was elected for three consecutive terms in the same post and (2) he has fully served three consecutive terms, were not met. We did not consider Talaga Jr.'s service of the unexpired portion of Tagarao's term as service of a full term for purposes of the three term limit. We also ruled that he did not serve for three consecutiveterms as there was a break in his service when he lost to Tagarao in the 1998 elections. EHTISC 2. ID.; ID.; ID.; ID.; PRINCIPAL REASONS FOR THE ENACTMENT THEREOF, CONSTRUED. — The deliberations of the ConCom and the ruling case law ofBorja, Lonzanida and Adormeo show that there are two principal reasons for the three term limit for elective local officials: (1) to prevent political dynasties perpetuated by the undue advantage of the incumbent and (2) to broaden the choice of the people by allowing candidates other than the incumbent to serve the people. Likewise evident in the deliberations is the effort to balance between two interests, namely, the prevention of political dynasties and broadening the choice of the people on the one hand, and respecting the freedom of choice and voice of the people, on the other; thus, the calibration between perpetual disqualification after three consecutive terms as proposed by Commissioner Garcia, and setting a limit on immediate reelection and providing for a hibernation period. In all three cases — Borja, Lonzanida and Adormeo — we ruled that the "term" referred to in the three term limit is service of a full term of three years for elective local officials. This ruling furthers the intent of the ConCom to prevent political dynasties as it is the service of consecutive full terms that makes service continuous and which opens the gates to political dynasties limiting the people's choice of leaders. In the words of Commissioner Ople, ". . . we want to prevent future situations where, as a result of continuous service and frequent reelections, officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate those powers and perquisites that permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. I think that is taken care of because we put a gap on the continuity or unbroken service of all of these officials." Thus, ConCom set the limit on consecutive full terms to no more than three. Otherwise stated, it is a fourth consecutive full term that is prohibited. 3. ID.; ID.; ID.; WHAT IS PROHIBITED IS THE SERVICE OF A FOURTH CONSECUTIVE FULL TERM AS CONTEMPLATED BY LAW. — Even a textual analysis of Art. X, Sec. 8 will yield the interpretation that what is prohibited is the service of a fourth consecutive full term. Petitioners are correct in foisting the view that "term" is a fixed and definite period of time prescribed by law or the Constitution during which the public officer may claim to hold office as a right. It is a fixed and definite period of time to hold office, perform its functions, and enjoy its privileges and emoluments until the expiration of the period. In ascertaining what "term" means for elective local officials, the Constitution itself provides in Art. X, Sec. 8 that it means a fixed, definite, and full period of three, years, viz: "Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years. . . " Although one or more persons may discharge the duties of the office during this fixed three-year period, the term is not divided into smaller terms by the number of incumbents who may fill the office. It is one and indivisible, and term follows term in successive cycles of three years each. If the incumbent or the one elected to the office fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntary resigns or is otherwise permanently incapacitated to discharge the functions of his office, thereby creating a permanent vacancy, the term would remain unbroken until the recurring election for the office. The provisions on voluntary renunciation under Art. X, Sec. 8 and other articles of the Constitution bolster the interpretation that for purposes of applying the three term limit, service of a full term of three years is contemplated. Likewise, because "term" is understood to be a fixed, definite, and full-period, the Constitution, in Art. VI, Sec. 9, uses the qualifier "unexpired term" to refer to only a portion of a term. Similarly, Sec. 44 of the Local Government Code of 1991 uses the phrase "unexpired term" to mean the remainder of the term. Thus, when Art. X, Sec. 8 of the Constitution states that ". . . no such (local elective) official shall serve for more than three consecutive terms," it consistently means that it allows service of a maximum of three consecutive full terms and prohibits service of a minimum fourth consecutive full term.

4. ID.; ID.; ID.; ID.; ASSUMPTION OF OFFICE THROUGH A RECALL ELECTION IS NOT IN REALITY A SERVICE OF FULL TERM; RATIONALE. — It is my respectful submission that the Constitution and the Local Government Code of 1991 proscribe a local official who has been thrice consecutively elected in regular elections and has served three full terms in the same position, from running in the regular election succeeding his third consecutive term. It is this situation that is prohibited because it makes possible service of more than three consecutive and continuous full terms, i.e., service of a fourth consecutive full term. We cannot overstress that it is this continuousness that the ConCom feared would open the gates to the two evils sought to be avoided: the incumbent's use of his undue advantage to put up a political dynasty and limiting the people's choice of leaders. It is in this context of regular elections that our obiter dictum in the Lonzanida case, which petitioners harp on, should be understood. In that case, we opined that "[a]s finally voted upon, it was agreed that an elective local government official should be barred from running for the same post after three consecutive terms. After a hiatus of at least one term, he may again run for the same office." Indeed, insofar as regular local elections are concerned, which were the elections involved in that case, there should be a hiatus of at least one full term of three years. On the other hand, in the case of a local official who assumes office through a recall election — whether after his first, second, or third consecutive term — there is a break in his service caused by the election of the incumbent who was recalled. Even in the case of a local official who initially assumes office via recall election, then wins the two succeeding regular elections and serves two full terms in the same post, he is not prohibited from seeking another reelection and serving another full term. This is so because his service of the remainder of the incumbent's term via recall election is not, in reality and in law, a full term continuing on to his three succeeding full terms. Local officials who assume officevia recall election serve only the unexpired portion of the incumbent's term and this service is not counted as a full term, despite the Constitutional mandate that the term of office of elective local officials is three years. Such is the design because Art. XVIII, Secs. 2 and 5 of the Constitution also prescribe synchronization of regular national and local elections beginning on the second Monday of May 1992, which is accomplished if the local official who assumes office through recall election serves only the incumbent's unexpired term. As we ruled in the Adormeo case, service of an unexpired term is considered service of a full term only with respect to Representatives (and Senators) because unlike local government officials, Representatives cannot be recalled. It is continuous prolonged stay in office that breeds political dynasties. Understandable therefore, insofar as Representatives who cannot be recalled are concerned, service of an unexpired term is strictly counted as service of a full term because the purpose of the ConCom was to limit the right to run and be elected in Congress. MENDOZA, J., separate opinion: 1. POLITICAL LAW; LOCAL GOVERNMENT CODE; ELECTIVE LOCAL OFFICIALS; THREE-TERM LIMIT; TERM DURING WHICH A RECALL ELECTION WAS HELD SHOULD NOT BE COUNTED IN THE COMPUTATION THEREOF; RATIONALE. — I submit with respect that the term during which a recall election is held should not be counted in computing the three-term limit not only when the recall election occurs within three consecutive terms, as this Court has already held, but also when such election is held during the fourth term immediately following three consecutive terms. The reason for this is that the elective local official cannot be said to have served "for more than three consecutive terms" because of the break in his service. What prevents the fourth term from being counted in determining the three-term limit is the lack of continuity, or the break, in the "service of the full term." I must stress that the Constitutiondoes not say "service for more than three terms" but "service for more than three consecutive terms." acCTIS 2. ID.; ID.; ID.; ID.; PURPOSE THEREOF. — As the discussion of the Constitutional Commission on Art. X. Sec. 8 shows, the three-term limit is aimed at preventing the monopolization or aggrandizement of political power and the perpetration of the incumbent in office. This abuse is likely to arise from a prolonged stay in power. It is not likely to arise if the service is broken, albeit it is for more than three terms.

3. ID.; ID.; ID.; ID.; REQUIREMENTS; CONSTRUED. — Hence, the application of the constitutional ban on the holding of elective local office for three consecutive terms requires in my view (1) election in a regular election for three consecutive terms and (2) service for the full terms, each consisting of three years, for which the official is elected. The first requirement is intended to give the electorate the freedom to reelect a candidate for a local elective position as part of their sovereign right (the right of suffrage) to choose those whom they believe can best serve them. This is the reason the framers of ourConstitution rejected Scheme No. 1, which was to ban reelection after three successive terms, and adopted Scheme No. 2, which is about "no immediate reelection after three successive terms." On the other hand, the second requirement is intended to prevent the accumulation of power resulting from too long a stay in office. DAVIDE, JR., C.J., concurring and dissenting opinion: 1. POLITICAL LAW; LOCAL GOVERNMENT CODE; ELECTIVE LOCAL OFFICIALS; THREE-TERM LIMIT; FOURTH TERM PROHIBITION COVERS THE PERIOD PERTAINING TO IT; CASE AT BAR. — The ponencia is then correct when it holds that the three-term limit bars an immediate reelection for a fourth term. But I disagree when it rules that in the case of Hagedorn he did not seek an immediate reelection for a fourth term because he was not a candidate for reelection in the May 2001 election. It forgets that what would have been his fourth term by virtue of the May 2001 election was for the period from 30 June 2001 to 30 June 2004. 2. ID.; ID.; ID.; ID.; INVOLUNTARY SEVERANCE FROM OFFICE; NOT APPLICABLE IN CASE AT BAR. — The flaw in the ruling results from an apparent confusion between term and election, the root cause of which is the attempt to distinguish "voluntary renunciation" of office from "involuntary severance" from office and the term to which it relates. . . . The dichotomy made in the ponencia between "voluntary renunciation of the office" as used in Section 8 of Article V of the Constitution and Section 43(b) of R.A. No. 7160 and "involuntary severance from office" is unnecessary, if not misplaced. From the discussion in the ponencia, the latter is made to apply to the banned term, i.e., the fourth term immediately following three consecutive terms. Speaking now of Hagedorn, he cannot have suffered "involuntary severance from office" because there was nothing to be severed; he was not a holder of an office either in a de jure or de facto capacity. He knew he was disqualified from seeking a third reelection to office. Disqualification is, definitely, not synonymous withinvoluntary severance. Even if we concede that involuntary severance is an act which interrupts the continuity of a term for purposes of applying the three-term principle the rule laid down in Lonzanida vs. COMELEC (311 SCRA 609 [1999]), cited in the ponencia, page 17, is not applicable in the case of Hagedorn. The involuntary severance referred to in that case was one that took place during any of the three terms; hence, the term during which it occurred should be excluded in the computation. In the case of Hagedorn, no such involuntary severance took place during any of his three terms brought about by his election in 1992 and reelections in 1995 and 1998. ITcCaS 3. ID.; ID.; ID.; ID.; VOLUNTARY RENUNCIATION, NOT CONSIDERED AS AN INTERRUPTION IN THE CONTINUITY OF SERVICE; PURPOSE THEREOF. — More importantly, the voluntary renunciation referred to in Section 8, Article X of the Constitution and Section 43(b) of R.A. No. 7160 its one that takes place at any time during either the first, second, or third term of the three consecutive terms. This is very clear from the last clause of Section 8, Article X of theConstitution, which reads: "shall not be considered as an interruption in the continuity of his service for the full term for which he was elected." The purpose of the provision is to prevent an elective local official from voluntary resigning from office for the purpose of circumventing the rule on the belief that the term during which he resigned would be excluded in the counting of the three-term rule. In short, the provision excluded is intended to impose a penalty on one who flouts the rule or make a mockery of it by the simple act of resigning.

4. ID.; ID.; ID.; ID.; THREE-TERM LIMIT CANNOT BE SUBVERTED IN A RECALL ELECTION; CASE AT BAR. — A declaration that Hagedorn is qualified to seek reelection in a recall election to remove the Mayor who was elected for a term for which Hagedorn was constitutionally and statutorily disqualified to be reelected to or to hold is to subvert the rationale of the three-consecutive-term rule and make a mockery of it. Worse, it abets destructive endless partisan politics and unsound governance. An elective local official who is disqualified to seek a fourth term because of the threeterm limit but obsessed to hold on to power would spend the first year of the fourth term campaigning for the recall of the incumbent in the second year of said term. This would not be a problem if the disqualified official has a solid following and a strong political machinery. Interestingly, in this case, as stated on page 3 of the ponencia, the President of the Association of Barangay Captains of Puerto Princesa City is one Mark David M. Hagedorn and he was designated by the Preparatory Recall Assembly as Interim Chairman.

DECISION

CARPIO, J p: The Case Before us are consolidated petitions for certiorari 1 seeking the reversal of the resolutions issued by the Commission on Elections ("COMELEC" for brevity) in relation to the recall election for mayor of Puerto Princesa City, Palawan. The Antecedents On July 2, 2002, 312 out of 528 members of the then incumbent barangay officials of the Puerto Princesa convened themselves into a Preparatory Recall Assembly ("PRA" for brevity) at the Gymnasium of Barangay San Jose from 9:00 a.m. to 12:00 noon. The PRA was convened to initiate the recall 2 of Victorino Dennis M. Socrates ("Socrates" for brevity) who assumed office as Puerto Princesa's mayor on June 30, 2001. The members of the PRA designated Mark David M. Hagedorn, president of the Association of Barangay Captains, as interim chair of the PRA. On the same date, the PRA passed Resolution No. 01-02 ("Recall Resolution" for brevity) which declared its loss of confidence in Socrates and called for his recall. The PRA requested the COMELEC to schedule the recall election for mayor within 30 days from receipt of the Recall Resolution. On July 16, 2002, Socrates filed with the COMELEC a petition, docketed as E.M. No. 02-010 (RC), to nullify and deny due course to the Recall Resolution. On August 14, 2002, the COMELEC en banc 3 promulgated a resolution dismissing for lack of merit Socrates' petition. The COMELEC gave due course to the Recall Resolution and scheduled the recall election on September 7, 2002. On August 21, 2002, the COMELEC en banc promulgated Resolution No. 5673 prescribing the calendar of activities and periods of certain prohibited acts in connection with the recall election. The COMELEC fixed the campaign period from August 27, 2002 to September 5, 2002 or a period of 10 days. On August 23, 2002, Edward M. Hagedorn ("Hagedorn" for brevity) filed his certificate of candidacy for mayor in the recall election. On August 17, 2002, Ma. Flores F. Adovo ("Adovo" for brevity) and Merly E. Gilo ("Gilo" for brevity) filed a petition before the COMELEC, docketed as SPA No. 02-492, to disqualify Hagedorn from

running in the recall election and to cancel his certificate of candidacy. On August 30, 2002, a certain Bienvenido Ollave, Sr. ("Ollave" for brevity) filed a petition-in-intervention in SPA No. 02-492 also seeking to disqualify Hagedorn. On the same date, a certain Genaro V. Manaay filed another petition, docketed as SPA No. 02-539, against Hagedorn alleging substantially the same facts and involving the same issues. The petitions were all anchored on the ground that "Hagedorn is disqualified from running for a fourth consecutive term, having been elected and having served as mayor of the city for three (3) consecutive full terms immediately prior to the instant recall election for the same post." Subsequently, SPA Nos. 02-492 and 02-539 were consolidated. In a resolution promulgated on September 20, 2002, the COMELEC's First Division 4 dismissed for lack of merit SPA Nos. 02-492 and 02-539. The COMELEC declared Hagedorn qualified to run in the recall election. The COMELEC also reset the recall election from September 7, 2002 to September 24, 2002. On September 23, 2002, the COMELEC en banc promulgated a resolution denying the motion for reconsideration of Adovo and Gilo. The COMELEC affirmed the resolution declaring Hagedorn qualified to run in the recall election. Hence, the instant consolidated petitions. G.R. No. 154512 Petitioner Socrates seeks to nullify the COMELEC en banc resolution dated August 14, 2002 in E.M. No. 02-010 (RC) which gave due course to the Recall Resolution and scheduled the recall election on September 7, 2002. Socrates alleges that the COMELEC gravely abused its discretion in upholding the Recall Resolution. Socrates cites the following circumstances as legal infirmities attending the convening of the PRA and its issuance of the Recall Resolution: (1) not all members of the PRA were notified of the meeting to adopt the resolution; (2) the proof of service of notice was palpably and legally deficient; (3) the members of the PRA were themselves seeking a new electoral mandate from their respective constituents; (4) the adoption of the resolution was exercised with grave abuse of authority; and (5) the PRA proceedings were conducted in a manner that violated his and the public's constitutional right to information. G.R. No. 154683 Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution No. 5673 dated August 21, 2002 insofar as it fixed the recall election on September 7, 2002, giving the candidates only a ten-day campaign period. He prayed that the COMELEC be enjoined from holding the recall election on September 7, 2002 and that a new date be fixed giving the candidates at least an additional 15 days to campaign. AEDcIH

In a resolution dated September 3, 2002, the Court en banc enjoined the COMELEC from implementing Resolution No. 5673 insofar as it fixed the date of the recall election on September 7, 2002. The Court directed the COMELEC to give the candidates an additional fifteen 15 days from September 7, 2002 within which to campaign. Accordingly, on September 9, 2002, the COMELEC en banc issued Resolution No. 5708 giving the candidates an additional 15 days from September 7, 2002 within which to campaign. Thus, the COMELEC reset the recall election to September 24, 2002. G.R. Nos. 155083-84 Petitioners Adovo, Gilo and Ollave assail the COMELEC's resolutions dated September 20, 2002 and September 23, 2002 in SPA Nos. 02-492 and 02-539 declaring Hagedorn qualified to run for mayor in

the recall election. They likewise prayed for the issuance of a temporary restraining order to enjoin the proclamation of the winning candidate in the recall election. Petitioners argue that the COMELEC gravely abused its discretion in upholding Hagedorn's qualification to run for mayor in the recall election despite the constitutional and statutory prohibitions against a fourth consecutive term for elective local officials. In a resolution dated September 24, 2002, the Court ordered the COMELEC to desist from proclaiming any winning candidate in the recall election until further orders from the Court. Petitioners were required to post a P20,000 bond. On September 27, 2002, Socrates filed a motion for leave to file an attached petition for intervention seeking the same reliefs as those sought by Adovo, Gilo and Ollave. In the meantime, Hagedorn garnered the highest number of votes in the recall election with 20,238 votes. Rival candidates Socrates and Sandoval obtained 17,220 votes and 13,241 votes. Hagedorn filed motions to lift the order restraining the COMELEC from proclaiming the winning candidate and to allow him to assume office to give effect to the will of the electorate. On October 1, 2002, the Court granted Socrates' motion for leave to file a petition for intervention. The Issues The issues for resolution of the Court are: 1. In G.R. No. 154512, whether the COMELEC committed grave abuse of discretion in giving due course to the Recall Resolution and scheduling the recall election for mayor of Puerto Princesa. 2. In G.R. Nos. 155083-84, whether Hagedorn is qualified to run for mayor in the recall election of Puerto Princesa on September 24, 2002. In G.R. No. 154683, the issue of whether the COMELEC committed grave abuse of discretion in fixing a campaign period of only 10 days has become moot. Our Resolution of September 3, 2002 and COMELEC Resolution No. 5708 granted an additional 15 days for the campaign period as prayed for by petitioner. First Issue: Validity of the Recall Resolution. Petitioner Socrates argues that the COMELEC committed grave abuse of discretion in upholding the Recall Resolution despite the absence of notice to 130 PRA members and the defective service of notice to other PRA members. The COMELEC, however, found that — "On various dates, in the month of June 2002, the proponents for the Recall of incumbent City Mayor Victorino Dennis M. Socrates sent notices of the convening of the PRA to the members thereof pursuant to Section 70 of the Local Government Code. Copies of the said notice are in Volumes I and II entitled Notices to PRA. Likewise, Proof of Service for each of the said notices were attached to the Petition and marked as Annex "G" of Volumes II and III of the Petition. Notices were likewise posted in conspicuous places particularly at the Barangay Hall. Photos establishing the same were attached to the Petition and marked as Annex "H". The proponents likewise utilized the broadcast mass media in the dissemination of the convening of the PRA. Notices of the convening of the Puerto Princesa PRA were also sent to the following: [a list of 25 names of provincial elective officials, print and broadcast media

practitioners, PNP officials, COMELEC city, regional and national officials, and DILG officials]. xxx xxx xxx The City Election Officer of Puerto Princesa City in her Certification dated 10 July 2002 certified that upon a 'thorough and careful verification of the signatures appearing in PRA Resolution 01-02, . . . the majority of all members of the PRA concerned approved said resolution.' She likewise certified 'that not a single member/signatory of the PRA complained or objected as to the veracity and authenticity of their signatures.' The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in his Indorsement dated 10 July 2002, stated, 'upon proper review, all documents submitted are found in order.' The Acting Director IV, Region IV, in his study dated 30 July 2002 submitted the following recommendations: 'This Office, after evaluating the documents filed, finds the instant Petition sufficient in form and substance. That the PRA was validly constituted and that the majority of all members thereof approved Resolution No. 01-02 calling for the recall of Mayor Victorino Dennis M. Socrates.' xxx xxx xxx This Court is bound by the findings of fact of the COMELEC on matters within the competence and expertise of the COMELEC, unless the findings are patently erroneous. In Malonzo v. COMELEC, 5 which also dealt with alleged defective service of notice to PRA members, we ruled that — "Needless to state, the issue of propriety of the notices sent to the PRA members is factual in nature, and the determination of the same is therefore a function of the COMELEC. In the absence of patent error, or serious inconsistencies in the findings, the Court should not disturb the same. The factual findings of the COMELEC, based on its own assessments and duly supported by gathered evidence, are conclusive upon the court, more so, in the absence of a substantiated attack on the validity of the same." In the instant case, we do not find any valid reason to hold that the COMELEC's findings of fact are patently erroneous. Socrates also claims that the PRA members had no authority to adopt the Recall Resolution on July 2, 2002 because a majority of PRA members were seeking a new electoral mandate in the barangay elections scheduled on July 15, 2002. This argument deserves scant consideration considering that when the PRA members adopted the Recall Resolution their terms of office had not yet expired. They were all de jure sangguniang barangay members with no legal disqualification to participate in the recall assembly under Section 70 of the Local Government Code. Socrates bewails that the manner private respondents conducted the PRA proceedings violated his constitutional right to information on matters of public concern. Socrates, however, admits receiving notice of the PRA meeting and of even sending his representative and counsel who were present during the entire PRA proceedings. Proponents of the recall election submitted to the COMELEC the Recall Resolution, minutes of the PRA proceedings, the journal of the PRA assembly, attendance sheets, notices sent to PRA members, and authenticated master list of barangay officials in Puerto Princesa. Socrates had the right to examine and copy all these public records in the official custody of the COMELEC. Socrates, however, does not claim that the COMELEC denied him this right. There is

no legal basis in Socrates' claim that respondents violated his constitutional right to information on matters of public concern. Thus, we rule that the COMELEC did not commit grave abuse of discretion in upholding the validity of the Recall Resolution and in scheduling the recall election on September 24, 2002. Second Issue: Hagedorn's qualification to run for mayor in the recall election of September 24, 2002. The three-term limit rule for elective local officials is found in Section 8, Article X of the Constitution, which states: EHaCTA "Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected." This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the Local Government Code, which provides: "Section 43. Term of Office. — (a) . . . (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected." These constitutional and statutory provisions have two parts. The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms. After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service. When the framers of the Constitution debated on the term limit of elective local officials, the question asked was whether there would be no further election after three terms, or whether there would be "no immediate reelection" after three terms. This is clear from the following deliberations of the Constitutional Commission: "THE PRESIDENT: The Acting Floor Leader is recognized. MR. ROMULO: 6 We are now ready to discuss the two issues, as indicated on the blackboard, and these are Alternative No. 1 where there is no further election after a total of three terms and Alternative No. 2 where there is no immediate reelection after three successive terms." 7

The Journal of the Constitutional Commission reports the following manifestation on the term of elective local officials: "MANIFESTATION OF MR. ROMULO Upon resumption of session, Mr. Romulo manifested that the Body would proceed to the consideration of two issues on the term of Representatives andlocal officials, namely: 1) Alternative No. 1 (no further reelection after a total of three terms), and 2) Alternative No. 2 (no immediate reelection after three successive terms)." 8 The framers of the Constitution used the same "no immediate reelection" question in voting for the term limits of Senators 9 and Representatives of the House. 10 Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not immediately after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term. Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of office. What the Constitution prohibits is a consecutive fourth term. The debates in the Constitutional Commission evidently show that the prohibited election referred to by the framers of the Constitution is the immediate reelection after the third term, not any other subsequent election. If the prohibition on elective local officials is applied to any election within the three-year full term following the three-term limit, then Senators should also be prohibited from running in any election within the six-year full term following their two-term limit. The constitutional provision on the term limit of Senators is worded exactly like the term limit of elective local officials, thus: "No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected." 11 In the debates on the term limit of Senators, the following exchange in the Constitutional Convention is instructive: "GASCON: 12 I would like to ask a question with regard to the issue after the second term. We will allow the Senator to rest for a period of time before he can run again? DAVIDE: 13 That is correct. GASCON: And the question that we left behind before — if the Gentleman will remember — was: How long will that period of rest be? Will it be one election which is three years or one term which is six years? DAVIDE: If the Gentleman will remember, Commissioner Rodrigo expressed the view that during the election following the expiration of the first 12 years, whether such election will be on the third or on the sixth year thereafter, this particular member of the Senate can run. So, it is not really a period of hibernation for six years. That was the Committee's stand.

GASCON: So, effectively, the period of rest would be three years at the least." 14 (Emphasis supplied) The framers of the Constitution thus clarified that a Senator can run after only three years 15 following his completion of two terms. The framers expressly acknowledged that the prohibited election refers only to the immediate reelection, and not to any subsequent election, during the six-year period following the two term limit. The framers of the Constitution did not intend "the period of rest" of an elective official who has reached his term limit to be the full extent of the succeeding term. In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an immediate reelection after his third consecutive term which ended on June 30, 2001. The immediate reelection that the Constitution barred Hagedorn from seeking referred to the regular elections in 2001. Hagedorn did not seek reelection in the 2001 elections. Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections and served in full his three consecutive terms as mayor of Puerto Princesa. Under the Constitution and the Local Government Code, Hagedorn could no longer run for mayor in the 2001 elections. The Constitution and theLocal Government Code disqualified Hagedorn, who had reached the maximum three-term limit, from running for a fourth consecutive term as mayor. Thus, Hagedorn did not run for mayor in the 2001 elections. 16 Socrates ran and won as mayor of Puerto Princesa in the 2001 elections. After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall election of September 24, 2002 when he won by 3,018 votes over his closest opponent, Socrates. From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was Socrates. During the same period, Hagedorn was simply a private citizen. This period is clearly an interruption in the continuity of Hagedorn's service as mayor, not because of his voluntary renunciation, but because of a legal prohibition. Hagedorn's three consecutive terms ended on June 30, 2001. Hagedorn's new recall term from September 24, 2002 to June 30, 2004 is not a seamless continuation of his previous three consecutive terms as mayor. One cannot stitch together Hagedorn's previous three-terms with his new recall term to make the recall term a fourth consecutive term because factually it is not. An involuntary interruption occurred from June 30, 2001 to September 24, 2002 which broke the continuity or consecutive character of Hagedorn's service as mayor. In Lonzanida v. Comelec, 17 the Court had occasion to explain interruption of continuity of service in this manner: ". . . The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected." The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three-term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. . . " (Emphasis supplied) In Hagedorn's case, the nearly 15-month period he was out of office, although short of a full term of three years, constituted an interruption in the continuity of his service as mayor. The Constitution does not require the interruption or hiatus to be a full term of three years. The clear intent is that interruption "for any length of time," as long as the cause is involuntary, is sufficient to break an elective local official's continuity of service.

In the recent case of Adormeo v. Comelec and Talaga, 18 a unanimous Court reiterated the rule that an interruption consisting of a portion of a term of office breaks the continuity of service of an elective local official. In Adormeo, Ramon Y. Talaga, Jr. had served two consecutive full terms as mayor of Lucena City. In his third bid for election as mayor in 1998, Talaga lost to Bernard G. Tagarao. However, in the recall election of May 12, 2000, Talaga won and served the unexpired term of Tagarao from May 12, 2000 to June 30, 2001. When Talaga ran again for mayor in the 2001 elections, Raymundo Adormeo, the other candidate for mayor, petitioned for Talaga's disqualification on the ground that Talaga had already served three consecutive terms as mayor. TAaEIc Thus, the issue in Adormeo was whether Talaga's recall term was a continuation of his previous two terms so that he was deemed to have already served three consecutive terms as mayor. The Court ruled that Talaga was qualified to run in the 2001 elections, stating that the period from June 30, 1998 to May 12, 2000 when Talaga was out of office interrupted the continuity of his service as mayor. Talaga's recall term as mayor was not consecutive to his previous two terms because of this interruption, there having been a break of almost two years during which time Tagarao was the mayor. We held in Adormeo that the period an elective local official is out of office interrupts the continuity of his service and prevents his recall term from being stitched together as a seamless continuation of his previous two consecutive terms. In the instant case, we likewise hold that the nearly 15 months Hagedorn was out of office interrupted his continuity of service and prevents his recall term from being stitched together as a seamless continuation of his previous three consecutive terms. The only difference between Adormeo and the instant case is the time of the interruption. In Adormeo, the interruption occurred after the first two consecutive terms. In the instant case, the interruption happened after the first three consecutive terms. In both cases, the respondents were seeking election for a fourth term. In Adormeo, the recall term of Talaga began only from the date he assumed office after winning the recall election. Talaga's recall term did not retroact to include the tenure in office of his predecessor. If Talaga's recall term was made to so retroact, then he would have been disqualified to run in the 2001 elections because he would already have served three consecutive terms prior to the 2001 elections. One who wins and serves a recall term does not serve the full term of his predecessor but only the unexpired term. The period of time prior to the recall term, when another elective official holds office, constitutes an interruption in continuity of service. Clearly, Adormeo established the rule that the winner in the recall election cannot be charged or credited with the full term of three years for purposes of counting the consecutiveness of an elective official's terms in office. In the same manner, Hagedorn's recall term does not retroact to include the tenure in office of Socrates. Hagedorn can only be disqualified to run in the September 24, 2002 recall election if the recall term is made to retroact to June 30, 2001, for only then can the recall term constitute a fourth consecutive term. But to consider Hagedorn's recall term as a full term of three years, retroacting to June 30, 2001, despite the fact that he won his recall term only last September 24, 2002, is to ignore reality. This Court cannot declare as consecutive or successive terms of office which historically and factually are not. Worse, to make Hagedorn's recall term retroact to June 30, 2001 creates a legal fiction that unduly curtails the freedom of the people to choose their leaders through popular elections. The concept of term limits is in derogation of the sovereign will of the people to elect the leaders of their own choosing. Term limits must be construed strictly to give the fullest possible effect to the sovereign will of the people. As this Court aptly stated in Borja, Jr. v. Comelec: "Thus, a consideration of the historical background of Art. X, §8 of the Constitution reveals that the members of the Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were with preventing the monopolization of political power. Indeed, they rejected a proposal

put forth by Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine years there should be no further reelection for local and legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barred from running for the same position in the succeeding election following the expiration of the third consecutive term. Monsod warned against 'prescreening candidates [from] whom the people will choose' as a result of the proposed absolute disqualification, considering that the draft constitutioncontained provisions 'recognizing people's power.''' 19 (Emphasis supplied) A necessary consequence of the interruption of continuity of service is the start of a new term following the interruption. An official elected in recall election serves the unexpired term of the recalled official. This unexpired term is in itself one term for purposes of counting the three-term limit. This is clear from the following discussion in the Constitutional Commission: "SUAREZ: 20 For example, a special election is called for a Senator, and the Senator newly elected would have to serve the unexpired portion of the term. Would that mean that serving the unexpired portion of the term is already considered one term? So, half a term, which is actually the correct statement, plus one term would disqualify the Senator concerned from running? Is that the meaning of this provision on disqualification, Madam President? DAVIDE: Yes, because we speak of 'term,' and if there is a special election, he will serve only for the unexpired portion of that particular term plus one more term for the Senator and two more terms for the Members of the Lower House." 21 Although the discussion referred to special elections for Senators and Representatives of the House, the same principle applies to a recall election of local officials. Otherwise, an elective local official who serves a recall term can serve for more than nine consecutive years comprising of the recall term plus the regular three full terms. A local official who serves a recall term should know that the recall term is in itself one term although less than three years. This is the inherent limitation he takes by running and winning in the recall election. In summary, we hold that Hagedorn is qualified to run in the September 24, 2002 recall election for mayor of Puerto Princesa because: 1. Hagedorn is not running for immediate reelection following his three consecutive terms as mayor which ended on June 30, 2001; HCITDc 2. Hagedorn's continuity of service as mayor was involuntarily interrupted from June 30, 2001 to September 24, 2002 during which time he was a private citizen; 3. Hagedorn's recall term from September 24, 2002 to June 30, 2004 cannot be made to retroact to June 30, 2001 to make a fourth consecutive term because factually the recall term is not a fourth consecutive term; and 4. Term limits should be construed strictly to give the fullest possible effect to the right of the electorate to choose their leaders. WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 155083-84 are DISMISSED. The temporary restraining order issued by this Court on September 24, 2002 enjoining the proclamation of the winning candidate for mayor of Puerto Princesa in the recall election of September 24, 2002 is lifted. No costs.

SO ORDERED. ||| (Socrates v. Commission on Elections, G.R. No. 154512, 154683, 155083-84, [November 12, 2002], 440 PHIL 106-180) [G.R. No. 184836. December 23, 2009.] SIMON B. ALDOVINO, JR.,DANILO B. FALLER AND FERDINAND N. TALABONG, petitioners,vs.COMMISSION ON ELECTIONS AND WILFREDO F. ASILO, respondents.

DECISION

BRION, J p: Is the preventive suspension of an elected public official an interruption of his term of office for purposes of the three-term limit rule under Section 8, Article X of the Constitution and Section 43 (b) of Republic Act No. 7160 (RA 7160, or the Local Government Code)? The respondent Commission on Elections (COMELEC) ruled that preventive suspension is an effective interruption because it renders the suspended public official unable to provide complete service for the full term; thus, such term should not be counted for the purpose of the three-term limit rule. The present petition 1 seeks to annul and set aside this COMELEC ruling for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. THE ANTECEDENTS The respondent Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three consecutive terms: for the 1998-2001, 2001-2004, and 2004-2007 terms, respectively. In September 2005 or during his 2004-2007 term of office, the Sandiganbayan preventively suspended him for 90 days in relation with a criminal case he then faced. This Court, however, subsequently lifted the Sandiganbayan's suspension order; hence, he resumed performing the functions of his office and finished his term. In the 2007 election, Asilo filed his certificate of candidacy for the same position. The petitioners Simon B. Aldovino, Jr.,Danilo B. Faller, and Ferdinand N. Talabong (the petitioners) sought to deny due course to Asilo's certificate of candidacy or to cancel it on the ground that he had been elected and had served for three terms; his candidacy for a fourth term therefore violated the three-term limit rule under Section 8, Article X of theConstitution and Section 43 (b) of RA 7160. EAHDac The COMELEC's Second Division ruled against the petitioners and in Asilo's favour in its Resolution of November 28, 2007. It reasoned out that the three-term limit rule did not apply, as Asilo failed to render complete service for the 2004-2007 term because of the suspension the Sandiganbayan had ordered. The COMELEC en banc refused to reconsider the Second Division's ruling in its October 7, 2008 Resolution; hence, the PRESENT PETITION raising the following ISSUES: 1. Whether preventive suspension of an elected local official is an interruption of the three-term limit rule; and

2. Whether preventive suspension is considered involuntary renunciation as contemplated in Section 43 (b) of RA 7160 Thus presented, the case raises the direct issue of whether Asilo's preventive suspension constituted an interruption that allowed him to run for a 4th term. THE COURT'S RULING We find the petition meritorious. General Considerations The present case is not the first before this Court on the three-term limit provision of the Constitution, but is the first on the effect of preventive suspension on the continuity of an elective official's term. To be sure, preventive suspension, as an interruption in the term of an elective public official, has been mentioned as an example in Borja v. Commission on Elections. 2 Doctrinally, however, Borja is not a controlling ruling; it did not deal with preventive suspension, but with the application of the three-term rule on the term that an elective official acquired by succession. a. The

Three-term The Constitutional Provision Analyzed

Limit

Rule:

Section 8, Article X of the Constitution states: Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Section 43 (b) of RA 7160 practically repeats the constitutional provision, and any difference in wording does not assume any significance in this case. As worded, the constitutional provision fixes the term of a local elective office and limits an elective official's stay in office to no more than three consecutive terms. This is the first branch of the rule embodied in Section 8, Article X. Significantly, this provision refers to a "term" as a period of time — three years — during which an official has title to office and can serve. Appari v. Court of Appeals, 3 a Resolution promulgated on November 28, 2007, succinctly discusses what a "term" connotes, as follows: TcCEDS The word "term" in a legal sense means a fixed and definite period of time which the law describes that an officer may hold an office. According to Mechem, the term of office is the period during which an office may be held. Upon expiration of the officer's term, unless he is authorized by law to holdover, his rights, duties and authority as a public officer must ipso facto cease. In the law of public officers, the most and natural frequent method by which a public officer ceases to be such is by the expiration of the terms for which he was elected or appointed. [Emphasis supplied]. A later case, Gaminde v. Commission on Audit, 4 reiterated that "[T]he term means the time during which the officer may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one another." The "limitation" under this first branch of the provision is expressed in the negative — "no such official shall serve for more than three consecutive terms." This formulation — no more than three consecutive terms — is a clear command suggesting the existence of an inflexible rule. While it gives no exact indication of what to "serve. ..three consecutive terms" exactly connotes,

the meaning is clear — reference is to the term, not to the service that a public official may render. In other words, the limitation refers to the term. The second branch relates to the provision's express initiative to prevent any circumvention of the limitation through voluntary severance of ties with the public office; it expressly states that voluntary renunciation of office "shall not be considered as an interruption in the continuity of his service for the full term for which he was elected." This declaration complements the term limitation mandated by the first branch. A notable feature of the second branch is that it does not textually state that voluntary renunciation is the only actual interruption of service that does not affect "continuity of service for a full term" for purposes of the three-term limit rule. It is a pure declaratory statement of what does not serve as an interruption of service for a full term, but the phrase "voluntary renunciation," by itself, is not without significance in determining constitutional intent. The word "renunciation" carries the dictionary meaning of abandonment. To renounce is to give up, abandon, decline, or resign. 5 It is an act that emanates from its author, as contrasted to an act that operates from the outside. Read with the definition of a "term" in mind, renunciation, as mentioned under the second branch of the constitutional provision, cannot but mean an act that results in cutting short the term, i.e.,the loss of title to office. The descriptive word "voluntary" linked together with "renunciation" signifies an act of surrender based on the surenderee's own freely exercised will; in other words, a loss of title to office by conscious choice. In the context of the three-term limit rule, such loss of title is not considered an interruption because it is presumed to be purposely sought to avoid the application of the term limitation. The following exchanges in the deliberations of the Constitutional Commission on the term "voluntary renunciation" shed further light on the extent of the term "voluntary renunciation": DHAcET MR. MAAMBONG. Could I address the clarificatory question to the Committee? This term "voluntary renunciation" does not appear in Section 3 [of Article VI];it also appears in Section 6 [of Article VI]. MR DAVIDE. Yes. MR. MAAMBONG. It is also a recurring phrase all over the Constitution. Could the Committee please enlighten us exactly what "voluntary renunciation" mean? Is this akin to abandonment? MR. DAVIDE. Abandonment is voluntary. In other words, he cannot circumvent the restriction by merely resigning at any given time on the second term. MR. MAAMBONG. Is the Committee saying that the term "voluntary renunciation" is more general than abandonment and resignation? MR. DAVIDE. It is more general, more embracing. 6

From this exchange and Commissioner Davide's expansive interpretation of the term "voluntary renunciation," the framers' intent apparently was to close all gaps that an elective official may seize to defeat the three-term limit rule, in the way that voluntary renunciation has been rendered unavailable as a mode of defeating the three-term limit rule. Harking back to the text of the constitutional provision, we note further that Commissioner Davide's view is consistent with the negative formulation of the first branch of the provision and the inflexible interpretation that it suggests. This examination of the wording of the constitutional provision and of the circumstances surrounding its formulation impresses upon us the clear intent to make term limitation a high priority constitutional objective whose terms must be strictly construed and which cannot be defeated by, nor sacrificed for, values of less than equal constitutional worth. We view preventive suspension vis-à-vis term limitation with this firm mindset. b. Relevant Jurisprudence Three-term Limit Rule

on

the

Other than the above-cited materials, jurisprudence best gives us a lead into the concepts within the provision's contemplation, particularly on the "interruption in the continuity of service for the full term" that it speaks of. Lonzanida v. Commission on Elections 7 presented the question of whether the disqualification on the basis of the three-term limit applies if the election of the public official (to be strictly accurate, the proclamation as winner of the public official) for his supposedly third term had been declared invalid in a final and executory judgment. We ruled that the two requisites for the application of the disqualification (viz., 1. that the official concerned has been elected for three consecutive terms in the same local government post; and 2. that he has fully served three consecutive terms) were not present. In so ruling, we said: DHIaTS The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term. [Emphasis supplied] Our intended meaning under this ruling is clear: it is severance from office, or to be exact, loss of title, that renders the three-term limit rule inapplicable. Ong v. Alegre 8 and Rivera v. COMELEC, 9 like Lonzanida, also involved the issue of whether there had been a completed term for purposes of the three-term limit disqualification. These cases, however, presented an interesting twist, as their final judgments in the electoral contest came after the term of the contested office had expired so that the elective officials in these cases were never effectively unseated. Despite the ruling that Ong was never entitled to the office (and thus was never validly elected),the Court concluded that there was nevertheless an election and service for a full term in contemplation of the three-term rule based on the following premises: (1) the final decision that the third-termer lost the election was without practical and legal use and value, having been promulgated after the term of the contested office had expired; and (2) the official assumed and continuously exercised the functions of the office from the start to the end of the term. The Court

noted in Ong the absurdity and the deleterious effect of a contrary view — that the official (referring to the winner in the election protest) would, under the three-term rule, be considered to have served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served the term pursuant to a proclamation made in due course after an election. This factual variation led the Court to rule differently from Lonzanida. In the same vein, the Court in Rivera rejected the theory that the official who finally lost the election contest was merely a "caretaker of the office" or a mere "de facto officer." The Court obeserved that Section 8, Article X of the Constitution is violated and its purpose defeated when an official fully served in the same position for three consecutive terms. Whether as "caretaker" or "de facto" officer, he exercised the powers and enjoyed the perquisites of the office that enabled him "to stay on indefinitely." ITEcAD Ong and Rivera are important rulings for purposes of the three-term limitation because of what they directly imply. Although the election requisite was not actually present, the Court still gave full effect to the three-term limitation because of the constitutional intent to strictly limit elective officials to service for three terms. By so ruling, the Court signalled how zealously it guards the three-term limit rule. Effectively, these cases teach us to strictly interpret the term limitation rule in favor of limitation rather than its exception. Adormeo v. Commission on Elections 10 dealt with the effect of recall on the three-term limit disqualification. The case presented the question of whether the disqualification applies if the official lost in the regular election for the supposed third term, but was elected in a recall election covering that term. The Court upheld the COMELEC's ruling that the official was not elected for three (3) consecutive terms. The Court reasoned out that for nearly two years, the official was a private citizen; hence, the continuity of his mayorship was disrupted by his defeat in the election for the third term. Socrates v. Commission on Elections 11 also tackled recall vis-à-vis the three-term limit disqualification. Edward Hagedorn served three full terms as mayor. As he was disqualified to run for a fourth term, he did not participate in the election that immediately followed his third term. In this election, the petitioner Victorino Dennis M. Socrates was elected mayor. Less than 1 1/2 years after Mayor Socrates assumed the functions of the office, recall proceedings were initiated against him, leading to the call for a recall election. Hagedorn filed his certificate of candidacy for mayor in the recall election, but Socrates sought his disqualification on the ground that he (Hagedorn) had fully served three terms prior to the recall election and was therefore disqualified to run because of the three-term limit rule. We decided in Hagedorn's favor, ruling that: After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election,like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service. When the framers of the Constitution debated on the term limit of elective local officials, the question asked was whether there would be no further election after three terms, or whether there would be "no immediate reelection" after three terms. xxx xxx xxx Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not immediately after the end of the third consecutive term. A recall election mid-way in the term

following the third consecutive term is a subsequent election but not an immediate reelection after the third term. DcaCSE Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of office. What the Constitution prohibits is a consecutive fourth term. 12 Latasa v. Commission on Elections 13 presented the novel question of whether a municipal mayor who had fully served for three consecutive terms could run as city mayor in light of the intervening conversion of the municipality into a city. During the third term, the municipality was converted into a city; the cityhood charter provided that the elective officials of the municipality shall, in a holdover capacity, continue to exercise their powers and functions until elections were held for the new city officials. The Court ruled that the conversion of the municipality into a city did not convert the office of the municipal mayor into a local government post different from the office of the city mayor — the territorial jurisdiction of the city was the same as that of the municipality; the inhabitants were the same group of voters who elected the municipal mayor for 3 consecutive terms; and they were the same inhabitants over whom the municipal mayor held power and authority as their chief executive for nine years. The Court said: This Court reiterates that the framers of the Constitution specifically included an exception to the people's freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive terms as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it. 14 aSEDHC Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates, that no three-term limit violation results if a rest period or break in the service between terms or tenure in a given elective post intervened. In Lonzanida, the petitioner was a private citizen with no title to any elective office for a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents lived as private citizens for two years and fifteen months, respectively. Thus, these cases establish that the law contemplates a complete break from office during which the local elective official steps down and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit. Seemingly differing from these results is the case of Montebon v. Commission on Elections, 15 where the highest-ranking municipal councilor succeeded to the position of vicemayor by operation of law. The question posed when he subsequently ran for councilor was whether his assumption as vice-mayor was an interruption of his term as councilor that would place him outside the operation of the three-term limit rule. We ruled that an interruption had intervened so that he could again run as councilor. This result seemingly deviates from the results in the cases heretofore discussed since the elective official continued to hold public office and did not become a private citizen during the interim. The common thread that identifiesMontebon with the rest, however, is that the elective official vacated the office of councilor and assumed the higher post of vice-mayor by operation of law. Thus, for a time he ceased to be councilor — an interruption that effectively placed him outside the ambit of the three-term limit rule. c. Conclusion and Jurisprudence

Based

on

Law

From all the above, we conclude that the "interruption" of a term exempting an elective official from the three-term limit rule is one that involvesno less than the involuntary loss of title to office. The elective official must have involuntarily left his office for a length of time, however short, for an effective interruption to occur. This has to be the case if the thrust of Section 8, Article X and its strict intent are to be faithfully served, i.e., to limit an elective official's continuous stay in office to no more than three consecutive terms, using "voluntary renunciation" as an example and standard of what does not constitute an interruption. Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective interruption of service within a term, as we held inMontebon. On the other hand, temporary inability or disqualification to exercise the functions of an elective post, even if involuntary, should not be considered an effective interruption of a term because it does not involve the loss of title to office or at least an effective break from holding office; the office holder, while retaining title, is simply barred from exercising the functions of his office for a reason provided by law. An interruption occurs when the term is broken because the office holder lost the right to hold on to his office, and cannot be equated with the failure to render service. The latter occurs during an office holder's term when he retains title to the office but cannot exercise his functions for reasons established by law. Of course, the term "failure to serve" cannot be used once the right to office is lost; without the right to hold office or to serve, then no service can be rendered so that none is really lost. cHDEaC To put it differently although at the risk of repetition, Section 8, Article X — both by structure and substance — fixes an elective official's term of office and limits his stay in office to three consecutive terms as an inflexible rule that is stressed, no less, by citing voluntary renunciation as an example of a circumvention. The provision should be read in the context of interruption of term, not in the context of interrupting the full continuity of the exercise of the powers of the elective position. The "voluntary renunciation" it speaks of refers only to the elective official's voluntary relinquishment of office and loss of title to this office. It does not speak of the temporary "cessation of the exercise of power or authority" that may occur for various reasons, with preventive suspension being only one of them. To quote Latasa v. Comelec: 16 Indeed, [T]he law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit. [Emphasis supplied]. Preventive the Three-Term Limit Rule

Suspension

and

a. Nature of Preventive Suspension Preventive suspension — whether under the Local Government Code, 17 the Anti-Graft and Corrupt Practices Act, 18 or the Ombudsman Act 19 — is an interim remedial measure to address the situation of an official who have been charged administratively or criminally, where the evidence preliminarily indicates the likelihood of or potential for eventual guilt or liability. Preventive suspension is imposed under the Local Government Code "when the evidence of guilt is strong and given the gravity of the offense, there is a possibility that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence." Under the Anti-Graft and Corrupt Practices Act, it is imposed after a valid information (that requires a finding of probable cause) has been filed in court, while under the Ombudsman Act, it is imposed when, in the judgment of the Ombudsman, the evidence of guilt is strong; and (a) the charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; or (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.

Notably in all cases of preventive suspension, the suspended official is barred from performing the functions of his office and does not receive salary in the meanwhile, but does not vacate and lose title to his office; loss of office is a consequence that only results upon an eventual finding of guilt or liability. Preventive suspension is a remedial measure that operates under closely-controlled conditions and gives a premium to the protection of the service rather than to the interests of the individual office holder. Even then, protection of the service goes only as far as a temporary prohibition on theexercise of the functions of the official's office; the official is reinstated to the exercise of his position as soon as the preventive suspension is lifted. Thus, while a temporary incapacity in the exercise of power results, no position is vacated when a public official is preventively suspended. This was what exactly happened to Asilo. HTCSDE That the imposition of preventive suspension can be abused is a reality that is true in the exercise of all powers and prerogative under theConstitution and the laws. The imposition of preventive suspension, however, is not an unlimited power; there are limitations built into the laws 20themselves that the courts can enforce when these limitations are transgressed, particularly when grave abuse of discretion is present. In light of this well-defined parameters in the imposition of preventive suspension, we should not view preventive suspension from the extreme situation — that it can totally deprive an elective office holder of the prerogative to serve and is thus an effective interruption of an election official's term. Term limitation and preventive suspension are two vastly different aspects of an elective officials' service in office and they do not overlap. As already mentioned above, preventive suspension involves protection of the service and of the people being served, and prevents the office holder from temporarily exercising the power of his office. Term limitation, on the other hand, is triggered after an elective official has served his three terms in office without any break. Its companion concept — interruption of a term — on the other hand, requires loss of title to office. If preventive suspension and term limitation or interruption have any commonality at all, this common point may be with respect to the discontinuity of service that may occur in both. But even on this point, they merely run parallel to each other and never intersect; preventive suspension, by its nature, is a temporary incapacity to render service during an unbroken term;in the context of term limitation, interruption of service occurs after there has been a break in the term. b. Preventive the Limit Rule

Intent

Suspension of

the

and Three-Term

Strict adherence to the intent of the three-term limit rule demands that preventive suspension should not be considered an interruption that allows an elective official's stay in office beyond three terms. A preventive suspension cannot simply be a term interruption because the suspended official continues to stay in office although he is barred from exercising the functions and prerogatives of the office within the suspension period. The best indicator of the suspended official's continuity in office is the absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists. To allow a preventively suspended elective official to run for a fourth and prohibited term is to close our eyes to this reality and to allow a constitutional violation through sophistry by equating the temporary inability to discharge the functions of office with the interruption of term that the constitutional provision contemplates. To be sure, many reasons exist, voluntary or involuntary — some of them personal and some of them by operation of law — that may temporarily prevent an elective office holder from exercising the functions of his office in the way that preventive suspension does. A serious extended illness, inability through force majeure, or the enforcement of a suspension as a penalty, to cite some involuntary examples, may prevent an office holder from exercising the functions of his office for a time without forfeiting title to office. Preventive

suspension is no different because it disrupts actual delivery of service for a time within a term. Adopting such interruption of actual service as the standard to determine effective interruption of term under the three-term rule raises at least the possibility of confusion in implementing this rule, given the many modes and occasions when actual service may be interrupted in the course of serving a term of office. The standard may reduce the enforcement of the three-term limit rule to a case-to-case and possibly see-sawing determination of what an effective interruption is. ASHECD c. Preventive Voluntary Renunciation

Suspension

and

Preventive suspension, because it is imposed by operation of law, does not involve a voluntary act on the part of the suspended official, except in the indirect sense that he may have voluntarily committed the act that became the basis of the charge against him. From this perspective, preventive suspension does not have the element of voluntariness that voluntary renunciation embodies. Neither does it contain the element of renunciation or loss of title to office as it merely involves the temporary incapacity to perform the service that an elective office demands. Thus viewed, preventive suspension is — by its very nature — the exact opposite of voluntary renunciation; it is involuntary and temporary, and involves only the actual delivery of service, not the title to the office. The easy conclusion therefore is that they are, by nature, different and non-comparable. But beyond the obvious comparison of their respective natures is the more important consideration of how they affect the three-term limit rule. Voluntary renunciation, while involving loss of office and the total incapacity to render service, is disallowed by the Constitution as an effective interruption of a term. It is therefore not allowed as a mode of circumventing the three-term limit rule. Preventive suspension, by its nature, does not involve an effective interruption of a term and should therefore not be a reason to avoid the three-term limitation. It can pose as a threat, however, if we shall disregard its nature and consider it an effective interruption of a term. Let it be noted that a preventive suspension is easier to undertake than voluntary renunciation, as it does not require relinquishment or loss of office even for the briefest time. It merely requires an easily fabricated administrative charge that can be dismissed soon after a preventive suspension has been imposed. In this sense, recognizing preventive suspension as an effective interruption of a term can serve as a circumvention more potent than the voluntary renunciation that the Constitution expressly disallows as an interruption. Conclusion To recapitulate, Asilo's 2004-2007 term was not interrupted by the Sandiganbayan-imposed preventive suspension in 2005, as preventive suspension does not interrupt an elective official's term. Thus, the COMELEC refused to apply the legal command of Section 8, Article X of theConstitution when it granted due course to Asilo's certificate of candidacy for a prohibited fourth term. By so refusing, the COMELEC effectively committed grave abuse of discretion amounting to lack or excess of jurisdiction; its action was a refusal to perform a positive duty required by no less than the Constitution and was one undertaken outside the contemplation of law. 21 CIaDTE WHEREFORE,premises considered, we GRANT the petition and accordingly NULLIFY the assailed COMELEC rulings. The private respondent Wilfredo F. Asilo is declared DISQUALIFIED to run, and perforce to serve, as Councilor of Lucena City for a prohibited fourth term. Costs against private respondent Asilo. SO ORDERED. ||| (Aldovino, Jr. v. Commission on Elections, G.R. No. 184836, [December 23, 2009], 623 PHIL 876938) [G.R. No. 147927. February 4, 2002.]

RAYMUNDO M. ADORMEO, petitioner, vs. COMMISSION ON ELECTIONS and RAMON Y. TALAGA, JR., respondents. Silvestre L. Tagarao, Ignacio E. Camba and Romeo A. Dato for petitioner. The Solicitor General for public respondent. Dante H. Diamante for private respondent. SYNOPSIS Petitioner and private respondent were the only candidates who filed their certificates of candidacy for mayor of Lucena City in the May 14, 2001 elections. Private respondent was elected mayor in May 1992. He served the full term. Again, he was re-elected in 1995-1998. In the election of 1998 he lost to Bernard Tagarao. In the recall election of May 12, 2000, he again won and served the unexpired term of Tagarao until June 30, 2001. Petitioner filed a petition to disqualify Talaga from running for Mayor for the May 14, 2001 elections on the ground that the latter was elected and had served as city mayor for three (3) consecutive terms. The Supreme Court held that respondent was not elected for three (3) consecutive terms. For nearly two years he was a private citizen. The continuity of his mayorship was disrupted by his defeat in the 1998 elections. Neither can respondent's victory in the recall election be deemed a violation of Section 8, Article X of the Constitution as "voluntary renunciation" for clearly it was not. Hence, private respondent was not disqualified to run for mayor in the May 14, 2001 elections. SYLLABUS 1. POLITICAL LAW; ELECTION LAWS; DISQUALIFICATION; THREE-TERM RULE; CONDITIONS FOR THE APPLICATION. — The issue before us was already addressed in Borja, Jr. vs. COMELEC, 295 SCRA 157, 169 (1998), where we held, To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply. . . . Likewise, in the case of Lonzanida vs. COMELEC, 311 SCRA 602, 611 (1999), we said, This Court held that the two conditions for the application of the disqualification must concur: a) that the official concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive terms. 2. CONSTITUTIONAL LAW; LOCAL GOVERNMENT; ELECTIVE LOCAL OFFICIALS; VOLUNTARY RENUNCIATION OF OFFICE DOES NOT CANCEL THE RENOUNCED TERM IN THE COMPUTATION OF THE THREE-TERM LIMIT; CASE AT BAR. — Neither can respondent's victory in the recall election be deemed a violation of Section 8, Article X of the Constitution as "voluntary renunciation" for clearly it is not. In Lonzanida vs. COMELEC, we said: . . . The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected." The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation

of a term does not cancel the renounced term in the computation of the three-term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term. aTcESI

DECISION

QUISUMBING, J p: Before us is a petition for certiorari, with a prayer for a writ of preliminary injunction and/or temporary restraining order, to nullify and set aside the resolution dated May 9, 2001 of public respondent Commission on Elections in Comelec SPA No. 01-055, which granted the motion for reconsideration and declared private respondent Ramon Y. Talaga, Jr., qualified to run for Mayor in Lucena City for the May 14, 2001 election. Petitioner prays that votes cast in private respondent's favor should not be counted; and should it happen that private respondent had been already proclaimed the winner, his proclamation should be declared null and void. The uncontroverted facts are as follows: Petitioner and private respondent were the only candidates who filed their certificates of candidacy for mayor of Lucena City in the May 14, 2001 elections. Private respondent was then the incumbent mayor. Private respondent Talaga, Jr. was elected mayor in May 1992. He served the full term. Again, he was re-elected in 1995-1998. In the election of 1998, he lost to Bernard G. Tagarao. In the recall election of May 12, 2000, he again won and served the unexpired term of Tagarao until June 30, 2001. On March 2, 2001, petitioner filed with the Office of the Provincial Election Supervisor, Lucena City a Petition to Deny Due Course to or Cancel Certificate of Candidacy and/or Disqualification of Ramon Y. Talaga, Jr., on the ground that the latter was elected and had served as city mayor for three (3) consecutive terms as follows: (1) in the election of May 1992, where he served the full term; (2) in the election of May 1995, where he again served the full term; and, (3) in the recall election of May 12, 2000, where he served only the unexpired term of Tagarao after having lost to Tagarao in the 1998 election. Petitioner contended that Talaga's candidacy as Mayor constituted a violation of Section 8, Article X of the 1987 Constitution which provides: Sec. 8. — The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. On March 9, 2001, private respondent responded that he was not elected City Mayor for three (3) consecutive terms but only for two (2) consecutive terms. He pointed to his defeat in the 1998 election by Tagarao. Because of his defeat the consecutiveness of his years as mayor was interrupted, and thus his mayorship was not for three consecutive terms of three years each. Respondent added that his service from May 12, 2001 until June 30, 2001 for 13 months and eighteen (18) days was not a full term, in the contemplation of the law and the Constitution. He

cites Lonzanida vs. COMELEC, G.R. No. 135150, 311 SCRA 602, 611 (1999), as authority to the effect that to apply disqualification under Section 8, Article X of the Constitution, two (2) conditions must concur, to wit: (a) that the official concerned has been elected for three consecutive terms in the same local government post, and (b) that he has fully served three (3) consecutive terms. On April 20, 2001, the COMELEC, through the First Division, found private respondent Ramon Y. Talaga, Jr. disqualified for the position of city mayor on the ground that he had already served three (3) consecutive terms, and his Certificate of Candidacy was ordered withdrawn and/or cancelled. On April 27, 2001, private respondent filed a motion for reconsideration reiterating that "three (3) consecutive terms" means continuous service for nine (9) years and that the two (2) years service from 1998 to 2000 by Tagarao who defeated him in the election of 1998 prevented him from having three consecutive years of service. He added that Tagarao's tenure from 1998 to 2000 could not be considered as a continuation of his mayorship. He further alleged that the recall election was not a regular election, but a separate special election specifically to remove incompetent local officials. On May 3, 2001, petitioner filed his Opposition to private respondent's Motion for Reconsideration stating therein that serving the unexpired term of office is considered as one (1) term. 1 Petitioner further contended that Article 8 of the Constitution speaks of "term" and does not mention "tenure": The fact that private respondent was not elected in the May 1998 election to start a term that began on June 30, 1998 was of no moment, according to petitioner, and what matters is that respondent was elected to an unexpired term in the recall election which should be considered one full term from June 30, 1998 to June 30, 2001. IDEScC On May 9, 2001, the COMELEC en banc ruled in favor of private respondent Ramon Y. Talaga, Jr. It reversed the First Division's ruling and held that 1) respondent was not elected for three (3) consecutive terms because he did not win in the May 11, 1998 elections; 2) that he was installed only as mayor by reason of his victory in the recall elections; 3) that his victory in the recall elections was not considered a term of office and is not included in the 3-term disqualification rule, and 4) that he did not fully serve the three (3) consecutive terms, and his loss in the May 11, 1998 elections is considered an interruption in the continuity of his service as Mayor of Lucena City. On May 19, 2001, after canvassing, private respondent was proclaimed as the duly elected Mayor of Lucena City. Petitioner is now before this Court, raising the sole issue: WHETHER OR NOT PUBLIC RESPONDENT COMELEC ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED ITS RESOLUTION DATED MAY 9, 2001, DECLARING PRIVATE RESPONDENT RAMON Y. TALAGA, JR., QUALIFIED TO RUN FOR MAYOR IN LUCENA CITY FOR THE MAY 14, 2001 ELECTIONS. 2

Stated differently, was private respondent disqualified to run for mayor of Lucena City in the May 14, 2001 elections? 3 This issue hinges on whether, as provided by the Constitution, he had already served three consecutive terms in that office. Petitioner contends that private respondent was disqualified to run for city mayor by reason of the three-term rule because the unexpired portion of the term of office he served after winning a recall election, covering the period May 12, 2000 to June 30, 2001 is considered a full term. He posits that to interpret otherwise, private respondent would be serving four (4) consecutive terms of 10 years, in violation of Section 8, Article X of 1987 Constitution 4 andSection 43 (b) of R.A. 7160, known as the Local Government Code. Section 43. Term of Office. —

xxx xxx xxx (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected. Private respondent, in turn, maintains that his service as city mayor of Lucena is not consecutive. He lost his bid for a second re-election in 1998 and between June 30, 1998 to May 12, 2000, during Tagarao's incumbency, he was a private citizen, thus he had not been mayor for 3 consecutive terms. In its comment, the COMELEC restated its position that private respondent was not elected for three (3) consecutive terms having lost his third bid in the May 11, 1998 elections, said defeat is an interruption in the continuity of service as city mayor of Lucena. The issue before us was already addressed in Borja, Jr. vs. COMELEC, 295 SCRA 157, 169 (1998), where we held, To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply. This point can be made clearer by considering the following case or situation: xxx xxx xxx Case No. 2. Suppose B is elected mayor and, during his first term, he is twice suspended for misconduct for a total of 1 year. If he is twice reelected after that, can he run for one more term in the next election? Yes, because he has served only two full terms successively. xxx xxx xxx To consider C as eligible for reelection would be in accord with the understanding of the Constitutional Commission that while the people should be protected from the evils that a monopoly of political power may bring about, care should be taken that their freedom of choice is not unduly curtailed. Likewise, in the case of Lonzanida vs. COMELEC, 311 SCRA 602, 611 (1999), we said, This Court held that the two conditions for the application of the disqualification must concur: a) that the official concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive terms. Accordingly, COMELEC's ruling that private respondent was not elected for three (3) consecutive terms should be upheld. For nearly two years he was a private citizen. The continuity of his mayorship was disrupted by his defeat in the 1998 elections. AEDHST Patently untenable is petitioner's contention that COMELEC in allowing respondent Talaga, Jr. to run in the May 1998 election violates Article X, Section 8 of1987 Constitution. 5 To bolster his case, respondent adverts to the comment of Fr: Joaquin Bernas, a Constitutional Commission member, stating that in interpreting said provision that "if one is elected representative to serve the unexpired term of another, that unexpired, no matter how short, will be considered one term for the purpose of computing the number of successive terms allowed." 6

As pointed out by the COMELEC en banc, Fr. Bernas' comment is pertinent only to members of the House of Representatives. Unlike local government officials, there is no recall election provided for members of Congress. 7 Neither can respondent's victory in the recall election be deemed a violation of Section 8, Article X of the Constitution as "voluntary renunciation" for clearly it is not. In Lonzanida vs. COMELEC, we said: . . .The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected." The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term. 8 WHEREFORE, the instant petition is hereby DISMISSED. The resolution of public respondent Commission on Elections dated May 9, 2001, in Comelec SPA No. 01-055 is AFFIRMED. Costs against petitioner. SO ORDERED. ||| (Adormeo v. Commission on Elections, G.R. No. 147927, [February 4, 2002], 426 PHIL 472-480) [G.R. No. 120140. August 21, 1996.] BENJAMIN U. BORJA, JR., petitioner, vs. COMMISSION ON ELECTIONS, PATEROS MUNICIPAL BOARD OF CANVASSERS and JOSE T. CAPCO, JR., respondents. Romulo C. Felizmeña for petitioner. Solicitor General for respondents. SYLLABUS 1. POLITICAL LAW; ELECTION LAW; OMNIBUS ELECTION CODE; FAILURE OF ELECTION; GROUNDS CITED IN CASE AT BAR ARE NOT PROPER IN A PETITION TO DECLARE A FAILURE OF ELECTION. — A petition to declare a failure of election is neither a pre-proclamation controversy as classified under Section 5(h), Rule 1 of the Revised COMELEC Rules of Procedure, not an election case. It must be remembered that Capco was duly elected and proclaimed as Mayor of Pateros. "Such proclamation enjoys the presumption of regularity and validity." To destroy the presumption, Borja must convincingly show that his opponent's victory was procured through extra-legal means. This he tried to do by alleging matters in his petition which he thought constituted failure of election, such as lack of notice of the date and time of canvass; fraud, violence, terrorism and analogous causes; disenfranchisement of voters; presence of flying voters; and unqualified members of the Board of Election Inspectors.

These grounds, however, as correctly pointed out by the COMELEC, are proper only in an election contest but not in a petition to declare a failure of election and to nullify a proclamation. 2. ID.; ID.; ID.; ID.; INSTANCES WHEN A FAILURE OF ELECTION MAY BE DECLARED; NOT PRESENT IN CASE AT BAR. — Section 6 of the Omnibus Election Code is reiterated in Section 2, Rule 26 of the Revised COMELEC Rules. In other words, the COMELEC can call for the holding or continuation of election by reason of failure of election only when the election is not held, is suspended or results in a failure to elect. The latter phrase, in turn, must be understood in its literal sense, which is "nobody was elected." None of these circumstances is present in the case at bar. At best, the "grounds" cited byBorja are simply events which give rise to the three consequences just mentioned. 3. ID.; ID.; ID.; ID.; CASE AT BAR; A CASE OF. — In reality, Borja's petition was nothing but a simple election protest involving an elective municipal position which, under Section 251 of the Election Code, falls within the exclusive original jurisdiction of the appropriate Regional Trial Court.

DECISION

ROMERO, J p: Petitioner Benjamin U. Borja, Jr. questions the authority of respondent Commission on Elections en banc to hear and decide at the first instance a petition seeking to declare a failure of election without the benefit of prior notice and hearing. During the May 8, 1995 elections, Borja and private respondent Jose T. Capco vied for the position of Mayor of the Municipality of Pateros which was won by Capco by a margin of 6,330 votes. Capco was consequently proclaimed and has since been serving as Mayor of Pateros. Alleging lack of notice of the date and time of canvass, fraud, violence, terrorism and analogous causes, such as disenfranchisement of voters, presence of flying voters, and unqualified members of the Board of Election Inspectors, Borja filed before the COMELEC a petition to declare a failure of election and to nullify the canvass and proclamation made by the Pateros Board of Canvassers. Concluding that the grounds relied upon by Borja were warranted only in an election contest, the COMELEC en banc dismissed the petition in its resolution dated May 25, 1995. It declared that "forced majeure, violence, terrorism, fraud and other analogous causes. . . . are merely the causes which may give rise to the grounds to declare failure of elections." These grounds, which include (a) no election held on the designated election date; (b) suspension of election before the hour fixed by law for the closing of voting; and (c) election in any polling place resulted in a failure to elect, were not present in Borja's petition. Aggrieved by said resolution, petitioner elevated the matter to this Court, arguing the same matters while claiming that the COMELEC committed grave abuse of discretion in issuing the questioned resolution of May 25, 1995. He avers that the COMELEC en banc does not have the power to hear and decide the merits of the petition he filed below because under Article IX-C, Section 3 of the Constitution, all election cases, including pre-proclamation controversies, "shall be heard and decided in division, provided that motions for reconsideration of decision shall be decided by the Commission en banc." After a careful scrutiny of petitioner's arguments, this Court finds the same to be untenable. The petition must inevitably be dismissed.

In order to resolve the threshold issue formulated at the outset, there must first be a determination as to whether a petition to declare a failure of election qualifies as an election case or a pre-proclamation controversy. If it does, the Constitution mandates that it be heard and adjudged by theCOMELEC through any of its Divisions. The COMELEC en banc is only empowered to resolve motions for reconsideration of cases decided by a Division for Article IX-C, Section 3 of the Constitution expressly provides: "SEC 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration shall be decided by the Commission en banc." In the case at bar, no one, much less the COMELEC, is disputing the mandate of the aforequoted Article IX-C, Section 3 of the Constitution. As Borjahimself maintained, the soundness of this provision has already been affirmed by the Supreme Court in a number of cases, albeit with some dissent. 1 InOng, the Court declared that if a case raises "pre-proclamation issues, the COMELEC, sitting en banc, has no original jurisdiction" over the same. Accordingly, said case should be remanded to the COMELEC which, in turn, will refer the same to any of its Divisions for proper disposition. A petition to declare a failure of election is neither a pre-proclamation controversy as classified under Section 5(h), Rule 1 of the Revised COMELECRules of Procedure, nor an election case. It must be remembered that Capco was duly elected and proclaimed as Mayor of Pateros. "Such proclamation enjoys the presumption of regularity and validity." 2 To destroy the presumption, Borja must convincingly show that his opponent's victory was procured through extra-legal means. This he tried to do by alleging matters in his petition which he thought constituted failure of election, such as lack of notice of the date and time of canvass; fraud, violence, terrorism and analogous causes; disenfranchisement of voters; presence of flying voters; and unqualified members of the Board of Election Inspectors. These grounds, however, as correctly pointed out by the COMELEC, are proper only in an election contest but not in a petition to declare a failure of election and to nullify a proclamation. Section 6 of the Omnibus Election Code lays down the instances when a failure of election may be declared. It states thus: "SEC. 6. Failure of Election. — If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice, and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect." The same provisions are reiterated under Section 2, Rule 26 of the Revised COMELEC Rules. In other words, the COMELEC can call for the holding or continuation of election by reason of failure of election only when the election is not held, is suspended or results in a failure to elect. The latter phrase, in turn, must be understood in its literal sense, which is "nobody was elected." None

of these circumstances is present in the case at bar. At best, the "grounds" cited by Borja are simply events which give rise to the three consequences just mentioned. In reality, Borja's petition was nothing but a simple election protest involving an elective municipal position which, under Section 251 of the Election Code, falls within the exclusive original jurisdiction of the appropriate Regional Trial Court. Section 251 states: "Section 251. Election contests for municipal offices. — A sworn petition contesting the election of a municipal officer shall be filed with the properregional trial court by any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after proclamation of the results of the election." (Emphasis supplied) The COMELEC in turn exercises appellate jurisdiction over the trial court's decision pursuant to Article IX-C, Section 2(2) of the Constitution which states: "Sec. 2. The Commission on Elections shall exercise the following powers and functions: xxx xxx xxx (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on Elections contests involving elective municipal and barangay offices shall be final, executory, and not appealable." The COMELEC, therefore, had no choice but to dismiss Borja’s petition, not only for being deficient in form but also for having been filed before the wrong tribunal. This reason need not even be stated in the body of the decision as the same is patent on the face of the pleading itself. Nor can Borjaclaim that he was denied due process because when the COMELEC en banc reviewed and evaluated his petition, the same was tantamount to a fair "hearing" of his case. The fact that Capco was not even ordered to rebut the allegations therein certainly did not deprive him of his day in court. If anybody here was aggrieved by the alleged lack of notice and hearing, it was Capco whose arguments were never ventilated. If he remained complacent, it was because the COMELEC's actuation was favorable to him. Certainly, the COMELEC cannot be said to have committed abuse of discretion, let alone grave abuse thereof, in dismissing Borja's petition. For having applied the clear provisions of the law, it deserves, not condemnation, but commendation. WHEREFORE, the instant petition is hereby DISMISSED. The Resolution of the Commission on Elections dated May 25, 1995 is hereby AFFIRMED. No pronouncement as to cost. SO ORDERED. ||| (Borja, Jr. v. Commission on Elections, G.R. No. 120140, [August 21, 1996], 329 PHIL 409-416) [G.R. No. 154829. December 10, 2003.] ARSENIO A. LATASA, petitioner, vs. COMMISSION ON ELECTIONS, and ROMEO SUNGA, respondents. Jose Ventura Aspiras and Antonio N. Navidad for petitioner.

Jerahmeel Libre and Clifford Equila for private respondent R. Sunga. Romualdo C. Garcia for Internor Atty. J. Penas. SYNOPSIS Petitioner Arsenio A. Latasa, was elected mayor of the Municipality of Digos, Davao del Sur in the elections of 1992, 1995, and 1998. During petitioner's third term, the Municipality of Digos was declared a component city, to be known as the City of Digos. On February 28, 2001, petitioner filed his certificate of candidacy for city mayor for the May 14, 2001 elections. He stated therein that he is eligible therefor, and likewise disclosed that he had already served for three consecutive terms as mayor of the Municipality of Digos, and is now running for the first time for the position of city mayor. Private respondent Romeo M. Sunga, also a candidate for city mayor in the said elections, filed before the Commission on Elections (COMELEC) a Petition to Deny Due Course, Cancel Certificate of Candidacy and/or For Disqualification against petitioner Latasa. Respondent Sunga alleged that petitioner falsely represented in his certificate of candidacy that he is eligible to run as mayor of Digos City since he had already been elected and served for three consecutive terms as mayor from 1992 to 2001. The COMELEC's First Division issued a Resolution canceling petitioner's certificate of candidacy for being in violation of the three (3)-term rule proscribed by the 1987 Constitution and the Local Government Code of 1991. Petitioner filed his Motion for Reconsideration which remained unacted upon until the day of the elections. Petitioner was proclaimed winner on May 17, 2001, having garnered the most number of votes. Subsequently, the COMELEC en banc issued a Resolution denying petitioner's Motion for Reconsideration. Hence, the present petition. The Supreme Court dismissed the petition. According to the Court, the fact that the new city acquired a new corporate existence separate and distinct from that of the municipality does not mean that for the purpose of applying Article X, Section 8 of the Constitution, the office of the municipal mayor would now be construed as a different local government post as that of the office of the city mayor. The territorial jurisdiction of the City of Digos is the same as that of the municipality. Consequently, the inhabitants of the municipality are the same as those in the city. The inhabitants are the same group of voters who elected petitioner Latasa to be their municipal mayor for three consecutive terms. They are also the same inhabitants over whom he held power and authority as their chief executive for nine years. The Court also stressed that the framers of the Constitution specifically included an exception to the people's freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive terms as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years which is the very scenario sought to be avoided by the Constitution, if not abhorred by it. SYLLABUS 1. POLITICAL LAW; LOCAL GOVERNMENT; THE FACT THAT THE NEW CITY ACQUIRED A NEW CORPORATE EXISTENCE SEPARATE AND DISTINCT FROM THAT OF A MUNICIPALITY DOES NOT MEAN THAT FOR THE PURPOSE OF APPLYING ARTICLE. X, SECTION 8 OF THE CONSTITUTION, THE OFFICE OF THE MUNICIPAL MAYOR WOULD NOW BE CONSTRUED AS A DIFFERENT LOCAL GOVERNMENT POST AS THAT OF THE CITY MAYOR. — The Court notes that the delineation of the metes and bounds of the City of Digos did not change even by an inch the land area previously covered by the Municipality of Digos. This Court also notes that the elective officials of the Municipality of Digos continued to exercise their powers and functions until elections were held for the new city officials. True, the new city acquired a new corporate existence separate

and distinct from that of the municipality. This does not mean, however, that for the purpose of applying the subject Constitutional provision, the office of the municipal mayor would now be construed as a different local government post as that of the office of the city mayor. As stated earlier, the territorial jurisdiction of the City of Digos is the same as that of the municipality. Consequently, the inhabitants of the municipality are the same as those in the city. These inhabitants are the same group of voters who elected petitioner Latasa to be their municipal mayor for three consecutive terms. These are also the same inhabitants over whom he held power and authority as their chief executive for nine years. 2. ID.; ID.; ALTHOUGH THERE WERE CHANGES IN THE POLITICAL AND ECONOMIC RIGHTS OF THE CITY OF DIGOS, NO SUBSTANTIAL CHANGE OCCURRED AS TO PETITIONER'S AUTHORITY AS CHIEF EXECUTIVE OVER THE INHABITANTS THEREOF. — In Borja, the private respondent therein, before he assumed the position of mayor, first served as the vice-mayor of his local government unit. The nature of the responsibilities and duties of the vice-mayor is wholly different from that of the mayor. The vice-mayor does not hold office as chief executive over his local government unit. In the present case, petitioner, upon ratification of the law converting the municipality to a city, continued to hold office as chief executive of the same territorial jurisdiction. There were changes in the political and economic rights of Digos as local government unit, but no substantial change occurred as to petitioner's authority as chief executive over the inhabitants of Digos. caIETS 3. ID.; ID.; PETITIONER NEVER CEASED FROM ACTING AS CHIEF EXECUTIVE OF THE LOCAL GOVERNMENT UNIT AND FROM DISCHARGING HIS DUTIES AND RESPONSIBILITIES. — In the present case, petitioner Latasa was, without a doubt, duly elected as mayor in the May 1998 elections. Can he then be construed as having involuntarily relinquished his office by reason of the conversion of Digos from municipality to city? This Court believes that he did involuntarily relinquish his office as municipal mayor since the said office has been deemed abolished due to the conversion. However, the very instant he vacated his office as municipal mayor, he also assumed office as city mayor. Unlike in Lonzanida, where petitioner therein, for even just a short period of time, stepped down from office, petitioner Latasa never ceased from acting as chief executive of the local government unit. He never ceased from discharging his duties and responsibilities as chief executive of Digos. HCEaDI 4. ID.; ID.; THE LAW CONTEMPLATES A REST PERIOD DURING WHICH THE LOCAL ELECTIVE OFFICIAL STEPS DOWN FROM OFFICE AND CEASES TO EXERCISE POWER OR AUTHORITY OVER THE INHABITANTS OF THE TERRITORIAL JURISDICTION OF A PARTICULAR LOCAL GOVERNMENT UNIT. — It is evident that in the above mentioned cases, there exists a rest period or a break in the service of the local elective official. In Lonzanida, petitioner therein was a private citizen a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents therein lived as private citizens for two years and fifteen months respectively. Indeed, the law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit. This Court reiterates that the framers of the Constitution specifically included an exception to the people's freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive terms as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it. TCIHSa 5. ID.; ELECTION LAWS; THE FACT THAT A PLURALITY OR A MAJORITY OF THE VOTES ARE CAST FOR AN INELIGIBLE CANDIDATE AT A POPULAR ELECTION, OR THAT A CANDIDATE IS

LATER DECLARED TO BE DISQUALIFIED TO HOLD OFFICE, DOES NOT ENTITLE THE CANDIDATE WHO GARNERED THE SECOND HIGHEST NUMBER OF VOTES TO BE DECLARED ELECTED. — Respondent Sunga claims that applying the principle in Labo v. COMELEC, he should be deemed the mayoralty candidate with the highest number of votes. On the contrary, this Court held in Labo that the disqualification of a winning candidate does not necessarily entitle the candidate with the highest number of votes to proclamation as the winner of the elections. As an obiter, the Court merely mentioned that the rule would have been different if the electorate, fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected. The same, however, cannot be said of the present case. This Court has consistently ruled that the fact that a plurality or a majority of the votes are cast for an ineligible candidate at a popular election, or that a candidate is later declared to be disqualified to hold office, does not entitle the candidate who garnered the second highest number of votes to be declared elected. The same merely results in making the winning candidate's election a nullity. In the present case, moreover, 13,650 votes were cast for private respondent Sunga as against the 25,335 votes cast for petitioner Latasa. The second placer is obviously not the choice of the people in that particular election. In any event, a permanent vacancy in the contested office is thereby created which should be filled by succession.

DECISION

AZCUNA, J p: This is a petition for certiorari under Rule 65 of the Rules of Court which seeks to challenge the resolution issued by the First Division of the Commission on Elections (COMELEC) dated April 27, 2001 in SPA Case No. 01-059 entitled, Romeo M. Sunga, petitioner, versus Arsenio A. Latasa, respondent, and the Resolution of the COMELEC en banc denying herein petitioner's Motion for Reconsideration. The assailed Resolution denied due course to the certificate of candidacy of petitioner Arsenio A. Latasa, declaring him disqualified to run for mayor of Digos City, Davao del Sur Province in the May 14, 2001 elections, ordering that all votes cast in his favor shall not be counted, and if he has been proclaimed winner, declaring said proclamation null and void. The facts are fairly simple. Petitioner Arsenio A. Latasa, was elected mayor of the Municipality of Digos, Davao del Sur in the elections of 1992, 1995, and 1998. During petitioner's third term, the Municipality of Digos was declared a component city, to be known as the City of Digos. A plebiscite conducted on September 8, 2000 ratifiedRepublic Act No. 8798 entitled, "An Act Converting the Municipality of Digos, Davao del Sur Province into a Component City to be known as the City of Digos" or the Charter of the City of Digos. This event also marked the end of petitioner's tenure as mayor of the Municipality of Digos. However, under Section 53, Article IX of the Charter, petitioner was mandated to serve in a hold-over capacity as mayor of the new City of Digos. Hence, he took his oath as the city mayor. On February 28, 2001, petitioner filed his certificate of candidacy for city mayor for the May 14, 2001 elections. He stated therein that he is eligible therefor, and likewise disclosed that he had already served for three consecutive terms as mayor of the Municipality of Digos and is now running for the first time for the position of city mayor.

On March 1, 2001, private respondent Romeo M. Sunga, also a candidate for city mayor in the said elections, filed before the COMELEC a Petition to Deny Due Course, Cancel Certificate of Candidacy and/or For Disqualification 1 against petitioner Latasa. Respondent Sunga alleged therein that petitioner falsely represented in his certificate of candidacy that he is eligible to run as mayor of Digos City since petitioner had already been elected and served for three consecutive terms as mayor from 1992 to 2001. On March 5, 2001, petitioner Latasa filed his Answer, 2 arguing that he did not make any false representation in his certificate of candidacy since he fully disclosed therein that he had served as mayor of the Municipality of Digos for three consecutive terms. Moreover, he argued that this fact does not bar him from filing a certificate of candidacy for the May 14, 2001 elections since this will be the first time that he will be running for the post of city mayor. Both parties submitted their position papers on March 19, 2001. 3 On April 27, 2001, respondent COMELEC's First Division issued a Resolution, the dispositive portion of which reads, as follows: Wherefore, premises considered, the respondent's certificate of candidacy should be cancelled for being a violation of the three (3)-term rule proscribed by the 1987 Constitution and the Local Government Code of 1991. 4 Petitioner filed his Motion for Reconsideration dated May 4, 2001, 5 which remained unacted upon until the day of the elections, May 14, 2001. On May 16, 2001, private respondent Sunga filed an Ex Parte Motion for Issuance of Temporary Restraining Order Enjoining the City Board of Canvassers From Canvassing or Tabulating Respondent's Votes, and From Proclaiming Him as the Duly Elected Mayor if He Wins the Elections. 6 Despite this, however, petitioner Latasa was still proclaimed winner on May 17, 2001, having garnered the most number of votes. Consequently, private respondent Sunga filed, on May 27, 2001, a Supplemental Motion 7 which essentially sought the annulment of petitioner's proclamation and the suspension of its effects. On July 1, 2001, petitioner was sworn into and assumed his office as the newly elected mayor of Digos City. It was only on August 27, 2002 that the COMELEC en banc issued a Resolution denying petitioner's Motion for Reconsideration. Hence, this petition. It cannot be denied that the Court has previously held in Mamba-Perez v. COMELEC 8 that after an elective official has been proclaimed as winner of the elections, the COMELEC has no jurisdiction to pass upon his qualifications. An opposing party's remedies after proclamation would be to file a petition forquo warranto within ten days after the proclamation. IDTSaC On the other hand, certain peculiarities in the present case reveal the fact that its very heart is something which this Court considers of paramount interest. This Court notes from the very beginning that petitioner himself was already entertaining some doubt as to whether or not he is indeed eligible to run for city mayor in the May 14, 2001 elections. In his certificate of candidacy, after the phrase "I am eligible," petitioner inserted a footnote and indicated: *Having served three (3) term[s] as municipal mayor and now running for the first time as city mayor. 9 Time and again, this Court has held that rules of procedure are only tools designed to facilitate the attainment of justice, such that when rigid application of the rules tend to frustrate rather than promote substantial justice, this Court is empowered to suspend their operation. We will not hesitate to set aside technicalities in favor of what is fair and just. 10

The spirit embodied in a Constitutional provision must not be attenuated by a rigid application of procedural rules. The present case raises a novel issue with respect to an explicit Constitutional mandate: whether or not petitioner Latasa is eligible to run as candidate for the position of mayor of the newly-created City of Digos immediately after he served for three consecutive terms as mayor of the Municipality of Digos. As a rule, in a representative democracy, the people should be allowed freely to choose those who will govern them. Article X, Section 8 of the Constitutionis an exception to this rule, in that it limits the range of choice of the people. Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. An examination of the historical background of the subject Constitutional provision reveals that the members of the Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were with preventing the monopolization of political power. In fact, they rejected a proposal set forth by Commissioner Edmundo Garcia that after serving three consecutive terms or nine years, there should be no further reelection for local and legislative officials. 11 The members, instead, adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barred from running for the same position in the succeeding election following the expiration of the third consecutive term: MR. MONSOD: Madam President, I was reflecting on this issue earlier and I asked to speak because in this draft Constitution,we are recognizing people's power. We have said that now there is a new awareness, a new kind of voter, a new kind of Filipino. And yet at the same time, we are prescreening candidates among whom they will choose. We are saying that this 48-member Constitutional Commission has decreed that those who have served for a period of nine years are barred from running for the same position. The argument is that there may be other positions. But there are some people who are very skilled and good at legislation, and yet are not of a national stature to be Senators. They may be perfectly honest, perfectly competent and with integrity. They get voted into office at the age of 25, which is the age we provide for Congressmen. And at 34 years old we put them into pasture. Second, we say that we want to broaden the choices of the people. We are talking here only of congressional or senatorial seats. We want to broaden the people's choice but we are making prejudgment today because we exclude a certain number of people. We are, in effect, putting an additional qualification for office — that the officials must have not have served a total of more than a number of years in their lifetime. Third, we are saying that by putting people to pasture, we are creating a reserve of statesmen, but the future participation of these statesmen is limited. Their skills may be only in some areas, but we are saying that they are going to be barred from running for the same position. Madam President, the ability and capacity of a statesman depend as well on the dayto-day honing of his skills and competence, in intellectual combat, in concern and

contact with the people, and here we are saying that he is going to be barred from the same kind of public service. I do not think it is in our place today to make such a very important and momentous decision with respect to many of our countrymen in the future who may have a lot more years ahead of them in the service of their country. If we agree that we will make sure that these people do not set up structures that will perpetuate them, then let us give them this rest period of three years or whatever it is. Maybe during that time, we would even agree that their fathers or mothers or relatives of the second degree should not run. But let us not bar them for life after serving the public for number of years. 12

The framers of the Constitution, by including this exception, wanted to establish some safeguards against the excessive accumulation of power as a result of consecutive terms. As Commissioner Blas Ople stated during the deliberations: . . . I think we want to prevent future situations where, as a result of continuous service and frequent re-elections, officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate these powers and perquisites that permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. . . . 13 An elective local official, therefore, is not barred from running again in for same local government post, unless two conditions concur: 1.) that the official concerned has been elected for three consecutive terms to the same local government post, and 2.) that he has fully served three consecutive terms. 14 In the present case, petitioner states that a city and a municipality have separate and distinct personalities. Thus they cannot be treated as a single entity and must be accorded different treatment consistent with specific provisions of the Local Government Code. He does not deny the fact that he has already served for three consecutive terms as municipal mayor. However, he asserts that when Digos was converted from a municipality to a city, it attained a different juridical personality. Therefore, when he filed his certificate of candidacy for city mayor, he cannot be construed as vying for the same local government post. For a municipality to be converted into a city, the Local Government Code provides: SECTION 450. Requisites for Creation. — (a) A municipality or a cluster of barangays may be converted into a component city it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prizes, and if it has either of the following requisites: (i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Land Management Bureau; or, (ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office. Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. AECDHS (b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land are shall not apply where the city

proposed to be created is composed of one (1) or more island. The territory need not be contiguous if it comprises two (2) or more islands. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income.15 Substantial differences do exist between a municipality and a city. For one, there is a material change in the political and economic rights of the local government unit when it is converted from a municipality to a city and undoubtedly, these changes affect the people as well. 16 It is precisely for this reason why Section 10, Article X of the Constitution mandates that no province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, without the approval by a majority of the votes cast in a plebiscite in the political units directly affected. As may be gleaned from the Local Government Code, the creation or conversion of a local government unit is done mainly to help assure its economic viability. Such creation or conversion is based on verified indicators: Section 7. Creation and Conversion. — As a general rule, the creation of a local government unit or its conversion from one level to another shall be based on verifiable indicators or viability and projected capacity to provide services, to wit: (a) Income. — It must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population, as expected of the local government unit concerned; (b) Population. — It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and (c) Land Area. — It must be contiguous, unless it comprises two (2) or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its populace. Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR). 17 On the other hand, Section 2 of the Charter of the City of Digos provides: Section 2. The City of Digos. — The Municipality of Digos shall be converted into a component city to be known as the City of Digos, hereinafter referred to as the City, which shall comprise the present territory of the Municipality of Digos, Davao del Sur Province. The territorial jurisdiction of the City shall be within the present metes and bounds of the Municipality of Digos. . . . Moreover, Section 53 of the said Charter further states: Section 53. Officials of the City of Digos. — The present elective officials of the Municipality of Digos shall continue to exercise their powers and functions until such a time that a new election is held and the duly-elected officials shall have already qualified and assumed their offices. . . . . As seen in the aforementioned provisions, this Court notes that the delineation of the metes and bounds of the City of Digos did not change even by an inch the land area previously covered by the Municipality of Digos. This Court also notes that the elective officials of the Municipality of Digos continued to exercise their powers and functions until elections were held for the new city officials.

True, the new city acquired a new corporate existence separate and distinct from that of the municipality. This does not mean, however, that for the purpose of applying the subject Constitutional provision, the office of the municipal mayor would now be construed as a different local government post as that of the office of the city mayor. As stated earlier, the territorial jurisdiction of the City of Digos is the same as that of the municipality. Consequently, the inhabitants of the municipality are the same as those in the city. These inhabitants are the same group of voters who elected petitioner Latasa to be their municipal mayor for three consecutive terms. These are also the same inhabitants over whom he held power and authority as their chief executive for nine years. This Court must distinguish the present case from previous cases ruled upon this Court involving the same Constitutional provision. In Borja, Jr. v. COMELEC, 18 the issue therein was whether a vice-mayor who became the mayor by operation of law and who served the remainder of the mayor's term should be considered to have served a term in that office for the purpose of the three-term limit under the Constitution. Private respondent in that case was first elected as vice-mayor, but upon the death of the incumbent mayor, he occupied the latter's post for the unexpired term. He was, thereafter, elected for two more terms. This Court therein held that when private respondent occupied the post of the mayor upon the incumbent's death and served for the remainder of the term, he cannot be construed as having served a full term as contemplated under the subject constitutional provision. The term served must be one "for which [the official concerned] was elected." It must also be noted that in Borja, the private respondent therein, before he assumed the position of mayor, first served as the vice-mayor of his local government unit. The nature of the responsibilities and duties of the vice-mayor is wholly different from that of the mayor. The vice-mayor does not hold office as chief executive over his local government unit. In the present case, petitioner, upon ratification of the law converting the municipality to a city, continued to hold office as chief executive of the same territorial jurisdiction. There were changes in the political and economic rights of Digos as local government unit, but no substantial change occurred as to petitioner's authority as chief executive over the inhabitants of Digos. In Lonzanida v. COMELEC, 19 petitioner was elected and served two consecutive terms as mayor from 1988 to 1995. He then ran again for the same position in the May 1995 elections, won and discharged his duties as mayor. However, his opponent contested his proclamation and filed an election protest before the Regional Trial Court, which ruled that there was a failure of elections and declared the position of mayor vacant. The COMELEC affirmed this ruling and petitioner acceded to the order to vacate the post. During the May 1998 elections, petitioner therein again filed his certificate of candidacy for mayor. A petition to disqualify him was filed on the ground that he had already served three consecutive terms. This Court ruled, however, that petitioner therein cannot be considered as having been duly elected to the post in the May 1995 elections, and that said petitioner did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. In the present case, petitioner Latasa was, without a doubt, duly elected as mayor in the May 1998 elections. Can he then be construed as having involuntarily relinquished his office by reason of the conversion of Digos from municipality to city? This Court believes that he did involuntarily relinquish his office as municipal mayor since the said office has been deemed abolished due to the conversion. However, the very instant he vacated his office as municipal mayor, he also assumed office as city mayor. Unlike in Lonzanida, where petitioner therein, for even just a short period of time, stepped down from office, petitioner Latasa never ceased from acting as chief executive of the local government unit. He never ceased from discharging his duties and responsibilities as chief executive of Digos.

In Adormeo v. COMELEC, 20 this Court was confronted with the issue of whether or not an assumption to office through a recall election should be considered as one term in applying the threeterm limit rule. Private respondent, in that case, was elected and served for two consecutive terms as mayor. He then ran for his third term in the May 1998 elections, but lost to his opponent. In June 1998, his opponent faced recall proceedings and in the recall elections of May 2000, private respondent won and served for the unexpired term. For the May 2001 elections, private respondent filed his certificate of candidacy for the office of mayor. This was questioned on the ground that he had already served as mayor for three consecutive terms. This Court held therein that private respondent cannot be construed as having been elected and served for three consecutive terms. His loss in the May 1998 elections was considered by this Court as an interruption in the continuity of his service as mayor. For nearly two years, private respondent therein lived as a private citizen. The same, however, cannot be said of petitioner Latasa in the present case. IAETSC Finally, in Socrates v. COMELEC, 21 the principal issue was whether or not private respondent Edward M. Hagedorn was qualified to run during the recall elections. Therein respondent Hagedorn had already served for three consecutive terms as mayor from 1992 until 2001 and did not run in the immediately following regular elections. On July 2, 2002, the barangay officials of Puerto Princesa convened themselves into a Preparatory Recall Assembly to initiate the recall of the incumbent mayor, Victorino Dennis M. Socrates. On August 23, 2002, respondent Hagedorn filed his certificate of candidacy for mayor in the recall election. A petition for his disqualification was filed on the ground that he cannot run for the said post during the recall elections for he was disqualified from running for a fourth consecutive term. This Court, however, ruled in favor of respondent Hagedorn, holding that the principle behind the three-term limit rule is to prevent consecutiveness of the service of terms, and that there was in his case a break in such consecutiveness after the end of his third term and before the recall election. It is evident that in the abovementioned cases, there exists a rest period or a break in the service of the local elective official. In Lonzanida, petitioner therein was a private citizen a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents therein lived as private citizens for two years and fifteen months respectively. Indeed, the law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit. This Court reiterates that the framers of the Constitution specifically included an exception to the people's freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive terms as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutiveyears. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it. Finally, respondent Sunga claims that applying the principle in Labo v. COMELEC, 22 he should be deemed the mayoralty candidate with the highest number of votes. On the contrary, this Court held in Labo that the disqualification of a winning candidate does not necessarily entitle the candidate with the highest number of votes to proclamation as the winner of the elections. As an obiter, the Court merely mentioned that the rule would have been different if the electorate, fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected. The same, however, cannot be said of the present case.

This Court has consistently ruled that the fact that a plurality or a majority of the votes are cast for an ineligible candidate at a popular election, or that a candidate is later declared to be disqualified to hold office, does not entitle the candidate who garnered the second highest number of votes to be declared elected. The same merely results in making the winning candidate's election a nullity. 23 In the present case, moreover, 13,650 votes were cast for private respondent Sunga as against the 25,335 votes cast for petitioner Latasa. 24 The second placer is obviously not the choice of the people in that particular election. In any event, a permanent vacancy in the contested office is thereby created which should be filled by succession. 25 WHEREFORE, the petition is DISMISSED. No pronouncement as to costs. SO ORDERED. ||| (Latasa v. Commission on Elections, G.R. No. 154829, [December 10, 2003], 463 PHIL 296-314)

[G.R. No. 163295. January 23, 2006.] FRANCIS G. ONG, petitioner, vs. JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS, respondents. [G.R. No. 163354. January 23, 2006.] ROMMEL G. ONG, petitioner, vs. JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS, respondents. Emilio C. Pormento for petitioners for G.R. Nos. 163295 and 163354. The Solicitor General for public respondent. Jaime R. Alegre for private respondent. SYLLABUS

1.POLITICAL LAW; ELECTION LAWS; ELECTIVE OFFICIALS; TERM OF OFFICE; THREE-TERM LIMIT RULE; PETITIONER'S PROCLAMATION AS THE DULY ELECTED MAYOR IN THE 1998 MAYORALTY ELECTION COUPLED BY HIS ASSUMPTION OF OFFICE AND HIS CONTINUOUS EXERCISE OF THE FUNCTIONS THEREOF FROM START TO FINISH OF THE TERM, SHOULD BE LEGALLY BE TAKEN AS SERVICE FOR A FULL TERM IN CONTEMPLATION OF THE THREETERM RULE. — The three-term limit rule for elective local officials is found in Section 8, Article X of the 1987 Constitution. Section 43 (b) of the Local Government Code restates the same rule. For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1) that the official concerned has been elected for three (3) consecutive terms in the same local government post, and (2) that he has fully served three (3) consecutive terms. With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring petitioner Francis from running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There can be no dispute about petitioner Francis Ong having been duly elected mayor of that municipality in the May 1995 and again in the May 2001 elections and serving the July 1, 1995June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein controversy revolves

around the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him mayor-elect of the municipality of San Vicente. The question that begs to be addressed, therefore, is whether or not Francis's assumption of office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may be considered as one full term service in the context of the consecutive three-term limit rule. We hold that such assumption of office constitutes, for Francis, "service for the full term," and should be counted as a full term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, supra, barring local elective officials from being elected and serving for more than three consecutive term for the same position. It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, that it was Francis' opponent (Alegre) who "won" in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente. However, that disposition, it must be stressed, was without practical and legal use and value, having been promulgated after the term of the contested office has expired. Petitioner Francis' contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term rule. The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that Alegre would — under the three-term rule — be considered as having served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an election. 2.ID.; ID.; ID.; ID.; ID.; A CANDIDATE WHOSE CERTIFICATE OF CANDIDACY HAS BEEN CANCELLED OR NOT GIVEN DUE COURSE CANNOT BE SUBSTITUTED BY ANOTHER BELONGING TO THE SAME POLITICAL PARTY AS THAT OF THE FORMER. — Just as unmeritorious as Francis' petition in G.R. No. 163295 is Rommel's petition in G.R. No. 163354 in which he (Rommel) challenges the COMELEC's act of not including his name as a substitute candidate in the official list of candidates for the May 10, 2004 elections. As it were, existing COMELEC policy provides for the non-inclusion of the name of substitute candidates in the certified list of candidates pending approval of the substitution. Not to be overlooked is the Court's holding in Miranda vs. Abaya, that a candidate whose certificate of candidacy has been cancelled or not given due course cannot be substituted by another belonging to the same political party as that of the former, thus: While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code. Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have so easily and conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under the provisions of Section 78 of the Code. . . . A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at all. . . . After having considered the importance of a certificate of candidacy, it can be readily understood why in Bautista [Bautista vs. Comelec, G.R. No. 133840, November 13, 1998] we ruled that a person with a cancelled certificate is no candidate at all. Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or accredited party may

be substituted, there demonstrably cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course. In any event, with the hard reality that the May 10, 2004 elections were already passé, Rommel Ong's petition in G.R. No. 163354 is already moot and academic.

DECISION

GARCIA, J p: Before the Court are these two separate petitions under Rule 65 of the Rules of Court to nullify and set aside certain issuances of the Commission on Elections (COMELEC) en banc. The first, docketed as G.R. No. 163295, is a petition for certiorari with petitioner Francis G. Ong impugning the COMELEC en banc resolution 1 dated May 7, 2004 in SPA Case No. 04-048, granting private respondent Joseph Stanley Alegre's motion for reconsideration of the resolution dated March 31, 2004 2 of the COMELEC's First Division. The second, G.R. No. 163354, is for certiorari, prohibition and mandamus, with application for injunctive relief, filed by petitioner Rommel Ong, brother of Francis, seeking, among other things, to stop the COMELEC from enforcing and implementing its aforesaid May 7, 2004 en banc resolution in SPA Case No. 04-048 pending the outcome of the petition in G.R. No. 163295. Per its en banc Resolution of June 1, 2004, the Court ordered the consolidation of these petitions. The recourse stemmed from the following essential and undisputed factual backdrop: Private respondent Joseph Stanley Alegre (Alegre) and petitioner Francis Ong (Francis) were candidates who filed certificates of candidacy for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. Francis was then the incumbent mayor. On January 9, 2004, Alegre filed with the COMELEC Provincial Office a Petition to Disqualify, Deny Due Course and Cancel Certificate of Candidacy 3 of Francis. Docketed as SPA Case No. 04-048, the petition to disqualify was predicated on the three-consecutive term rule, Francis having, according to Alegre, ran in the May 1995, May 1998, and May 2001 mayoralty elections and have assumed office as mayor and discharged the duties thereof for three (3) consecutive full terms corresponding to those elections. To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the office of mayor of San Vicente, Camarines Norte, with the latter being subsequently proclaimed by COMELEC winner in that contest. Alegre subsequently filed an election protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines Norte. In it, the RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest, 4albeit the decision came out only on July 4, 2001, when Francis had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as mayor-elect of the municipality of San Vicente. TaSEHC Acting on Alegre's petition to disqualify and to cancel Francis' certificate of candidacy for the May 10, 2004 elections, the First Division of the COMELEC rendered on March 31, 2004 a resolution 5 dismissing the said petition of Alegre, rationalizing as follows: We see the circumstances in the case now before us analogous to those obtaining in the sample situations addressed by the Highest Court in the Borja case. Herein, one

of the requisites for the application of the three term rule is not present. Francis Ong might have indeed fully served the mayoral terms of 1995 to 1998; 1998 to 2001 and 2001 to 2004. The mayoral term however, from 1998 to 2001 cannot be considered his because he was not duly elected thereto. The [RTC] of Daet, Camarines Norte, Branch 41 has voided his election for the 1998 term when it held, in its decision that Stanley Alegre was the "legally elected mayor in the 1998 mayoralty election in San Vicente, Camarines Norte." This disposition had become final after the [COMELEC] dismissed the appeal filed by Ong, the case having become moot and academic. xxx xxx xxx On the basis of the words of the Highest Court pronounced in the Lonzanida case and applicable in the case at bench, Ong could not be considered as having served as mayor from 1998 to 2001 because "he was not duly elected to the post; he merely assumed office as a presumptive winner; which presumption was later overturned . . . when [the RTC] decided with finality that [he] lost in the May 1998 elections." (Words in bracket and emphasis in the original). Undaunted, Alegre filed a timely motion for reconsideration, contending, in the main, that there was a misapplication of the three-term rule, as applied in the cited cases of Borja vs. Comelec and Lonzanida vs. Comelec, infra. On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a resolution 6 reversing the March 31, 2004 resolution of the COMELEC's First Division and thereby (a) declaring Francis "as disqualified to run for mayor of San Vicente, Camarines Norte in the . . . May 10, 2004"; (b) ordering the deletion of Francis' name from the official list of candidates; and (c) directing the concerned board of election inspectors not to count the votes cast in his favor. The following day, May 8, Francis received a fax machine copy of the aforecited May 7, 2004 resolution, sending him posthaste to seek the assistance of his political party, the Nationalist People's Coalition, which immediately nominated his older brother, Rommel Ong (Rommel), as substitute candidate. At about 5:05 p.m. of the very same day — which is past the deadline for filing a certificate of candidacy, Rommel filed his own certificate of candidacy for the position of mayor, as substitute candidate for his brother Francis. The following undisputed events then transpired: 1.On May 9, 2004, or a day before the May 10 elections, Alegre filed a Petition to Deny Due Course to or Cancel Certificate of Rommel Ong. 2.Atty. Evillo C. Pormento, counsel for the Ong brothers, addressed a letter 7 to Provincial Election Supervisor (PES) of Camarines Norte Liza Z. Cariño and Acting Election Officer Emily G. Basilonia in which he appealed that, owing to the COMELEC's inaction on Alegre's petition to cancel Rommel's certificate of candidacy, the name "Rommel Ong" be included in the official certified list of candidates for mayor of San Vicente, Camarines Norte. The desired listing was granted by the PES Carino. SEcADa 3.On May 10, 2004, Alegre wrote 8 to then COMELEC Commissioner Virgilio Garcillano, Commissioner-in-Charge for Regions IV and V, seeking clarification on the legality of the action thus taken by the PES Cariño. Responding, Commissioner Garcillano issued a Memorandum under date May 10, 2004 9 addressed to PES Liza D. Zabala-Cariño, ordering her to implement the resolution of the COMELEC en banc in SPA No. 04-048 promulgated on May 7, 2004. 10 Said Memorandum partly stated:

The undersigned ADOPTS the recommendation of Atty. Alioden D. Dalaig [Director IV, Law Department], which he quote your stand, "that substitution is not proper if the certificate of the substituted candidacy is denied due course. In the Resolution of the Commission En banc, the Certificate of candidacy of Francis Ong was denied due course," and elaborated further that: ". . . there is an existing policy of the Commission not to include the name of a substitute candidate in the certified list of candidates unless the substitution is approved by the Commission. In view, thereof, it is recommended that 1) the substitute certificate of candidacy of Rommel Ong Gan Ong, should be denied due course; and 2) the election officer be directed to delete his name from the list of candidates." The above position of the Commission was in line with the pronouncement of Supreme Court in Miranda vs. Abaya (311 SCRA 617) which states: "There can no valid substitution where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy." In view thereof, you are hereby directed to faithfully implement the said Resolution of the Commission En Banc in SPA No. 04-048 promulgated on May 7, 2004. (Emphasis in the original; words in bracket added]. 4.Owing to the aforementioned Garcillano Memorandum, it would seem that the Chairman of the Municipal Board of Canvasser of San Vicente issued an order enjoining all concerned not to canvass the votes cast for Rommel, prompting the latter to file a protest with that Board. 11 5.On May 11, 2004, the Municipal Board of Canvassers proclaimed Alegre as the winning candidate for the mayoralty post in San Vicente, Camarines Norte.12 On May 12, 2004, Francis filed before the Court a petition for certiorari, presently docketed as G.R. No. 163295. His brother Rommel's petition in G.R. No. 163354 followed barely a week after. In our en banc resolution dated June 1, 2004, G.R. No. 163295 and G.R. No. 163354 were consolidated. 13 Meanwhile, on June 4, 2004, the COMELEC issued an order dismissing private respondent Alegre's Petition to Deny Due Course to or Cancel Certificate of Candidacy of Rommel Ong, for being moot and academic. 14 The issues for resolution of the Court are: In G.R. No. 163295, whether the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its en bancresolution dated May 7, 2004 declaring petitioner Francis as disqualified to run for Mayor of San Vicente, Camarines Norte in the May 10, 2004 elections and consequently ordering the deletion of his name from the official list of candidates so that any vote cast in his favor shall be considered stray. In G.R. No. 163354, whether the COMELEC committed grave abuse of discretion when it denied due course to Rommel's certificate of candidacy in the same mayoralty election as substitute for his brother Francis. cISAHT A resolution of the issues thus formulated hinges on the question of whether or not petitioner Francis's assumption of office as Mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001 should be considered as full service for the purpose of the three-term limit rule.

Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other hand, disagrees. He argues that, while he indeed assumed office and discharged the duties as Mayor of San Vicente for three consecutive terms, his proclamation as mayor-elect in the May 1998 election was contested and eventually nullified per the decision of the RTC of Daet, Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues, citingLonzanida vs. Comelec 15 , that a proclamation subsequently declared void is no proclamation at all and one assuming office on the strength of a protested proclamation does so as a presumptive winner and subject to the final outcome of the election protest. The three-term limit rule for elective local officials is found in Section 8, Article X of the 1987 Constitution, which provides: Sec. 8.The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Section 43 (b) of the Local Government Code restates the same rule as follows: Sec. 43.Term of Office. xxx xxx xxx (b)No local elective official shall serve for more than three consecutive years in the same position. Voluntary renunciation of the office for any length of time shall not be considered an interruption in the continuity of service for the full term for which the elective official concerned was elected. For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1) that the official concerned has been elected for three (3) consecutive terms in the same local government post, and (2) that he has fully served three (3) consecutive terms. 16 With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring petitioner Francis from running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There can be no dispute about petitioner Francis Ong having been duly elected mayor of that municipality in the May 1995 and again in the May 2001 elections and serving the July 1, 1995-June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein controversy revolves around the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him mayor-elect of the municipality of San Vicente. The question that begs to be addressed, therefore, is whether or not Francis's assumption of office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may be considered as one full term service in the context of the consecutive three-term limit rule. We hold that such assumption of office constitutes, for Francis, "service for the full term", and should be counted as a full term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, supra, barring local elective officials from being elected and serving for more than three consecutive term for the same position. It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, 17 that it was Francis' opponent (Alegre) who "won" in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente. However, that disposition, it must be stressed, was without practical and legal use and value, having been promulgated after the term of the contested office has expired. Petitioner Francis' contention that he was only a presumptive winner in the 1998 mayoralty derby as

his proclamation was under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term rule. EcAISC The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that Alegre would — under the three-term rule — be considered as having served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an election. Petitioner cites, but, to our mind, cannot seek refuge from the Court's ruling in, Lonzanida vs. Comelec, 18 citing Borja vs. Comelec 19 . In Lonzanida, petitioner Lonzanida was elected and served for two consecutive terms as mayor of San Antonio, Zambales prior to the May 8, 1995 elections. He then ran again for the same position in the May 1995 elections, won and discharged his duties as Mayor. However, his opponent contested his proclamation and filed an election protest before the RTC of Zambales, which, in a decision dated January 9, 1997, ruled that there was a failure of elections and declared the position vacant. The COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the post. Lonzanida assumed the office and performed his duties up to March 1998 only. Now, during the May 1998 elections, Lonzanida again ran for mayor of the same town. A petition to disqualify, under the three-term rule, was filed and was eventually granted. There, the Court held that Lonzanida cannot be considered as having been duly elected to the post in the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by reason of involuntary relinquishment of office. As the Court pointedly observed, Lonzanida "cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate [and in fact vacated] his post before the expiration of the term." The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the mayoralty election was declared a nullity for the stated reason of "failure of election", and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of mayor. For another, Lonzanida did not fully serve the 19951998 mayoral term, there being an involuntary severance from office as a result of legal processes. In fine, there was an effective interruption of the continuity of service. On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly, here, there was actually no interruption or break in the continuity of Francis' service respecting the 1998-2001 term. Unlike Lonzanida, Francis was never unseated during the term in question; he never ceased discharging his duties and responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering the 1998-2001 term. The ascription, therefore, of grave abuse of discretion on the part of the COMELEC en banc when it disqualified Francis from running in the May 10, 2004 elections for the mayoralty post of San Vicente and denying due course to his certificate of candidacy by force of the constitutional and statutory provisions regarding the three-term limit rule for any local elective official cannot be sustained. What the COMELEC en banc said in its May 7, 2004 assailed Resolution commends itself for concurrence: As correctly pointed out by Petitioner-Movant [Alegre]in applying the ruling in the Borja and Lonzanidacases in the instant petition will be erroneous because the factual milieu in those cases is different from the one obtaining here. Explicitly, the three-term limit was not made applicable in the cases ofBorja and Lonzanida because there was an interruption in the continuity of service of the three consecutive terms. Here, Respondent Ong would have served continuously for three consecutive terms, from 1995 to 2004. His full term from 1998 to 2001 could not be simply discounted on the basis that he was not duly elected

thereto on account of void proclamation because it would have iniquitous effects producing outright injustice and inequality as it rewards a legally disqualified and repudiated loser with a crown of victory. (Word in bracket added; emphasis in the original) Given the foregoing consideration, the question of whether or not then Commissioner Virgilio Garcillano overstepped his discretion when he issued the May 10, 2004 Memorandum, ordering the implementation of aforesaid May 7, 2004 COMELEC en banc resolution even before its finality 20 is now of little moment and need not detain us any longer. HCTDIS Just as unmeritorious as Francis' petition in G.R. No. 163295 is Rommel's petition in G.R. No. 163354 in which he (Rommel) challenges the COMELEC's act of not including his name as a substitute candidate in the official list of candidates for the May 10, 2004 elections. As it were, existing COMELEC policy 21provides for the non-inclusion of the name of substitute candidates in the certified list of candidates pending approval of the substitution. Not to be overlooked is the Court's holding in Miranda vs. Abaya, 22 that a candidate whose certificate of candidacy has been cancelled or not given due course cannot be substituted by another belonging to the same political party as that of the former, thus: While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code.

Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have so easily and conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under the provisions of Section 78 of the Code. xxx xxx xxx A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at all. xxx xxx xxx After having considered the importance of a certificate of candidacy, it can be readily understood why in Bautista [Bautista vs. Comelec, G.R. No. 133840, November 13, 1998] we ruled that a person with a cancelled certificate is no candidate at all. Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or accredited party may be substituted, there demonstrably cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course. In any event, with the hard reality that the May 10, 2004 elections were already passé, Rommel Ong's petition in G.R. No. 163354 is already moot and academic.

WHEREFORE, the instant petitions are DISMISSED and the assailed en banc Resolution dated May 7, 2004 of the COMELEC, in SPA No. 04-048 AFFIRMED. Costs against petitioners. SO ORDERED. ||| (Ong v. Alegre, G.R. No. 163295, 163354, [January 23, 2006], 515 PHIL 442-457)