art. vi- sec 6-9

8/10/2019 art. vi- SEC 6-9

http://slidepdf.com/reader/full/art-vi-sec-6-9 1/196

IMELDA ROMUALDEZ-MARCOS, petitioner,vs.COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

KAPUNAN, J.:

A constitutional provision should be construed as to give it effective operation and suppressthe mischief at which it is aimed. 1

The 1987 Constitution mandates that an aspirant for election tothe House of Representatives be "a registered voter in the district in which he shall be elected, and aresident 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 thepossibility of a "stranger or newcomer unacquainted with the conditions and needs of a community andnot 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 ofRepresentative of the First District of Leyte with the Provincial Election Supervisor on March8, 1995, providing the following information in item no. 8: 4

RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTEDIMMEDIATELY PRECEDING THE ELECTION: __________ Yearsand seven Months.

On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representativeof the First District of Leyte and a candidate for the same position, filed a "Petition forCancellation and Disqualification" 5

with the Commission on Elections alleging that petitioner did not

meet the constitutional requirement for residency. In his petition, private respondent contended that Mrs.Marcos lacked the Constitution's one year residency requirement for candidates for the House of

Representatives on the evidence of declarations made by her in Voter Registration Record 94-No.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 amendedcertificate. 8

On the same day, the Provincial Election Supervisor of Leyte informed petitioner that:

[T]his office cannot receive or accept the aforementioned Certificate ofCandidacy on the ground that it is filed out of time, the deadline for the filingof the same having already lapsed on March 20, 1995. TheCorrected/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 theCOMELEC's Head Office in Intramuros, Manila onMarch 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 waslikewise filed with the head office on the same day. In said Answer, petitioner averred thatthe 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

8/10/2019 art. vi- SEC 6-9


Amended/Corrected Certificate of Candidacy and that "she has always maintained Tacloban City as herdomicile 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 toregister as a voter in Tacloban City and run for Congress in the First District

of Leyte, petitioner immediately opposed her intended registration by writing aletter 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 followingcompletion of her six month actual residence therein, petitioner filed a petitionwith the COMELEC to transfer the town of Tolosa from the First District to theSecond District and pursued such a move up to the Supreme Court, hispurpose being to remove respondent as petitioner's opponent in thecongressional election in the First District. He also filed a bill, along with otherLeyte Congressmen, seeking the creation of another legislative district toremove 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 obviousthat he is afraid to submit along with respondent for the judgment and verdictof 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 avote 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 March31, 1995; and 3) canceling her original Certificate of Candidacy.

14 Dealing with two primary issues,

namely, the validity of amending the original Certificate of Candidacy after the lapse of the deadline forfiling certificates of candidacy, and petitioner's compliance with the one year residency requirement, theSecond Division held:

Respondent raised the affirmative defense in her Answer that the printedword "Seven" (months) was a result of an "honest misinterpretation or honestmistake" on her part and, therefore, an amendment should subsequently beallowed. She averred that she thought that what was asked was her "actualand physical" presence in Tolosa and not residence of origin or domicile inthe First Legislative District, to which she could have responded "sincechildhood." In an accompanying affidavit, she stated that her domicile isTacloban City, a component of the First District, to which she always intendedto return whenever absent and which she has never abandoned.Furthermore, in her memorandum, she tried to discredit petitioner's theory ofdisqualification by alleging that she has been a resident of the First

Legislative District of Leyte since childhood, although she only became aresident of the Municipality of Tolosa for seven months. She asserts that shehas always been a resident of Tacloban City, a component of the FirstDistrict, 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 thatshe can be a candidate for the District. However, this intention was rebuffed

8/10/2019 art. vi- SEC 6-9


8/10/2019 art. vi- SEC 6-9


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 sumup to 7 months. The Commission, therefore, cannot be persuaded to believein the respondent's contention that it was an error.

xxx xxx xxx

Based on these reasons the Amended/Corrected Certificate of Candidacycannot be admitted by this Commission.

xxx xxx xxx

Anent the second issue, and based on the foregoing discussion, it is clearthat respondent has not complied with the one year residency requirement ofthe Constitution.

In election cases, the term "residence" has always been considered as

synonymous with "domicile" which imports not only the intention to reside in afixed place but also personal presence in-that place, coupled with conductindicative of such intention. Domicile denotes a fixed permanent residence towhich when absent for business or pleasure, or for like reasons, one intendsto return. (Perfecto Faypon vs. Eliseo Quirino, 96 Phil 294; Romualdez vs.RTC-Tacloban, 226 SCRA 408). In respondent's case, when she returned tothe Philippines in 1991, the residence she chose was not Tacloban but SanJuan, Metro Manila. Thus, her animus revertendi is pointed to Metro Manilaand 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 ofqualification where she is otherwise constitutionally disqualified. It cannot holdground 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 aftergraduation in Tacloban City, she continuously lived in Manila. In 1959, afterher husband was elected Senator, she lived and resided in San Juan, MetroManila 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 asmember of the Batasang Pambansa as the representative of the City ofManila and later on served as the Governor of Metro Manila. She could nothave served these positions if she had not been a resident of the City ofManila. 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, MetroManila. As a matter of fact on August 24, 1994, respondent wrote a letter withthe election officer of San Juan, Metro Manila requesting for the cancellationof her registration in the permanent list of voters that she may be re-registered or transferred to Barangay Olot, Tolosa, Leyte. These factsmanifest that she could not have been a resident of Tacloban City sincechildhood up to the time she filed her certificate of candidacy because shebecame a resident of many places, including Metro Manila. This debunks her

8/10/2019 art. vi- SEC 6-9


claim that prior to her residence in Tolosa, Leyte, she was a resident of theFirst Legislative District of Leyte since childhood.

In this case, respondent's conduct reveals her lack of intention to makeTacloban her domicile. She registered as a voter in different places and onseveral occasions declared that she was a resident of Manila. Although shespent her school days in Tacloban, she is considered to have abandonedsuch place when she chose to stay and reside in other different places. In thecase of Romualdez vs. RTC (226 SCRA 408) the Court explained how oneacquires a new domicile by choice. There must concur: (1) residence orbodily presence in the new locality; (2) intention to remain there; and (3)intention to abandon the old domicile. In other words there must basicallybe animus manendi with animus non revertendi . When respondent chose tostay in Ilocos and later on in Manila, coupled with her intention to stay thereby registering as a voter there and expressly declaring that she is a residentof that place, she is deemed to have abandoned Tacloban City, where shespent her childhood and school days, as her place of domicile.

Pure intention to reside in that place is not sufficient, there must likewise beconduct indicative of such intention. Respondent's statements to the effectthat she has always intended to return to Tacloban, without theaccompanying conduct to prove that intention, is not conclusive of her choiceof residence. Respondent has not presented any evidence to show that herconduct, one year prior the election, showed intention to reside in Tacloban.Worse, what was evident was that prior to her residence in Tolosa, she hadbeen a resident of Manila.

It is evident from these circumstances that she was not a resident of the FirstDistrict of Leyte "since childhood."

To further support the assertion that she could have not been a resident ofthe First District of Leyte for more than one year, petitioner correctly pointedout 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 RegistrationRecord that she resided in the municipality of Tolosa for a period of sixmonths. This may be inconsequential as argued by the respondent since itrefers only to her residence in Tolosa, Leyte. But her failure to prove that shewas a resident of the First District of Leyte prior to her residence in Tolosaleaves nothing but a convincing proof that she had been a resident of thedistrict for six months only. 15

In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC enbanc 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 LegislativeDistrict of Leyte.

17 The Resolution tersely stated:

After deliberating on the Motion for Reconsideration, the CommissionRESOLVED to DENY it, no new substantial matters having been raised

8/10/2019 art. vi- SEC 6-9


therein to warrant re-examination of the resolution granting the petition fordisqualification. 18

On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamationshould the results of the canvass show that she obtained the highest number of votes in thecongressional elections in the First District of Leyte. On the same day, however, theCOMELEC reversed itself and issued a second Resolution directing that the proclamation ofpetitioner 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 theoverwhelming winner of the elections for the congressional seat in the First District of Leyteheld May 8, 1995 based on the canvass completed by the Provincial Board of Canvasserson May 14, 1995. Petitioner alleged that the canvass showed that she obtained a total of70,471 votes compared to the 36,833 votes received by Respondent Montejo. A copy ofsaid Certificate of Canvass was annexed to the Supplemental Petition.

On account of the Resolutions disqualifying petitioner from running for the congressional

seat of the First District of Leyte and the public respondent's Resolution suspending herproclamation, petitioner comes to this court for relief.

Petitioner raises several issues in her Original and Supplemental Petitions. The principalissues 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 FirstDistrict of Leyte for a period of one year at the time of the May 9, 1995elections.

II . The Jurisdictional Issue

a) Prior to the elections

Whether or not the COMELEC properly exercised its jurisdiction indisqualifying petitioner outside the period mandated by the Omnibus ElectionCode for disqualification cases under Article 78 of the said Code.

b) After the Elections

Whether or not the House of Representatives Electoral Tribunal assumedexclusive jurisdiction over the question of petitioner's qualifications after theMay 8, 1995 elections.

I . Petitioner's qualification

A perusal of the Resolution of the COMELEC's Second Division reveals a startlingconfusion in the application of settled concepts of "Domicile" and "Residence" in electionlaw. While the COMELEC seems to be in agreement with the general proposition that for

8/10/2019 art. vi- SEC 6-9


8/10/2019 art. vi- SEC 6-9


other election law cases, this Court has stated that the mere absence of an individual from his permanentresidence 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 electivepositions 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 1971Constitutional Convention, there was an attempt to require residence in theplace 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 acandidate for the legislature? Is it actual residence or is it the concept ofdomicile or constructive residence?

Mr. Davide: Madame President, insofar as the regular members of theNational 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 effectlifted 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 thinkCommissioner Nolledo has raised the same point that "resident" has beeninterpreted 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 especiallyconsidering that a provision in the Constitution in the Article on Suffrage saysthat Filipinos living abroad may vote as enacted by law. So, we have to stickto the original concept that it should be by domicile and not physicalresidence. 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 inelection law, regarding it as having the same meaning as domicile.

32

In the light of the principles just discussed, has petitioner Imelda Romualdez Marcossatisfied 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 statingher 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 bedecisive in determining whether or not and individual has satisfied the constitution'sresidency qualification requirement. The said statement becomes material only when there

8/10/2019 art. vi- SEC 6-9


is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which wouldotherwise render a candidate ineligible. It would be plainly ridiculous for a candidate todeliberately and knowingly make a statement in a certificate of candidacy which would leadto his or her disqualification.

It stands to reason therefore, that petitioner merely committed an honest mistake in jottingthe word "seven" in the space provided for the residency qualification requirement. Thecircumstances leading to her filing the questioned entry obviously resulted in thesubsequent confusion which prompted petitioner to write down the period of her actual stayin Tolosa, Leyte instead of her period of residence in the First district, which was "sincechildhood" in the space provided. These circumstances and events are amply detailed inthe COMELEC's Second Division's questioned resolution, albeit with a differentinterpretation. For instance, when herein petitioner announced that she would be registeringin Tacloban City to make her eligible to run in the First District, private respondent Montejoopposed 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 isTolosa, 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 forresidence (Item No. 7) is followed immediately by the entry for residence in the constituencywhere 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 TOBE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________Years and Seven Months.

Having been forced by private respondent to register in her place of actual residence inLeyte instead of petitioner's claimed domicile, it appears that petitioner had jotted down herperiod of stay in her legal residence or domicile. The juxtaposition of entries in Item 7 andItem 8 — the first requiring actual residence and the second requiring domicile — coupledwith the circumstances surrounding petitioner's registration as a voter in Tolosa obviouslyled to her writing down an unintended entry for which she could be disqualified. This honestmistake should not, however, be allowed to negate the fact of residence in the First Districtif such fact were established by means more convincing than a mere entry on a piece ofpaper.

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 FirstDistrict of Leyte, the Second Division of the COMELEC, in its assailed Resolution of April24,1995 maintains that "except for the time when (petitioner) studied and worked for someyears after graduation in Tacloban City, she continuously lived in Manila." The Resolutionadditionally cites certain facts as indicative of the fact that petitioner's domicile ought to beany place where she lived in the last few decades except Tacloban, Leyte. First, according

8/10/2019 art. vi- SEC 6-9


to the Resolution, petitioner, in 1959, resided in San Juan, Metro Manila where she wasalso registered voter. Then, in 1965, following the election of her husband to the Philippinepresidency, she lived in San Miguel, Manila where she as a voter. In 1978 and thereafter,she served as a member of the Batasang Pambansa and Governor of Metro Manila. "Shecould not, have served these positions if she had not been a resident of Metro Manila," theCOMELEC stressed. Here is where the confusion lies.

We have stated, many times in the past, that an individual does not lose his domicile even ifhe 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 legalresidence or domicile to pursue a profession, to study or to do other things of a temporaryor semi-permanent nature does not constitute loss of residence. Thus, the assertion by theCOMELEC that "she could not have been a resident of Tacloban City since childhood up tothe time she filed her certificate of candidacy because she became a resident of manyplaces" flies in the face of settled jurisprudence in which this Court carefully madedistinctions between (actual) residence and domicile for election law purposes. InLarenavs. Teves, 33

supra, we stressed:

[T]his court is of the opinion and so holds that a person who has his ownhouse wherein he lives with his family in a municipality without having everhad the intention of abandoning it, and without having lived either alone orwith his family in another municipality, has his residence in the formermunicipality, notwithstanding his having registered as an elector in the othermunicipality in question and having been a candidate for various insular andprovincial positions, stating every time that he is a resident of the lattermunicipality.

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 thesaying goes, to improve his lot, and that, of course includes study in otherplaces, practice of his avocation, or engaging in business. When an electionis to be held, the citizen who left his birthplace to improve his lot may desireto return to his native town to cast his ballot but for professional or businessreasons, or for any other reason, he may not absent himself from hisprofessional or business activities; so there he registers himself as voter ashe has the qualifications to be one and is not willing to give up or lose theopportunity to choose the officials who are to run the government especiallyin national elections. Despite such registration, the animus revertendi to hishome, 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 hisresidence of origin has not been deemed sufficient to constitute abandonmentor loss of such residence. It finds justification in the natural desire and longingof every person to return to his place of birth. This strong feeling ofattachment to the place of one's birth must be overcome by positive proof ofabandonment for another.

8/10/2019 art. vi- SEC 6-9


From the foregoing, it can be concluded that in its above-cited statements supporting itsproposition that petitioner was ineligible to run for the position of Representative of the FirstDistrict 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 onresidence in election law and the deliberations of the constitutional commission but also theprovisions of the Omnibus Election Code (B.P. 881). 35

What is undeniable, however, are the following set of facts which establish the fact ofpetitioner's domicile, which we lift verbatim from the COMELEC's Second Division'sassailed Resolution: 36

In or about 1938 when respondent was a little over 8 years old, sheestablished her domicile in Tacloban, Leyte (Tacloban City). She studied inthe Holy Infant Academy in Tacloban from 1938 to 1949 when she graduatedfrom high school. She pursued her college studies in St. Paul's College, nowDivine Word University in Tacloban, where she earned her degree inEducation. Thereafter, she taught in the Leyte Chinese School, still in

Tacloban City. In 1952 she went to Manila to work with her cousin, the latespeaker Daniel Z. Romualdez in his office in the House of Representatives. In1954, she married ex-President Ferdinand E. Marcos when he was still acongressman of Ilocos Norte and registered there as a voter. When herhusband was elected Senator of the Republic in 1959, she and her husbandlived together in San Juan, Rizal where she registered as a voter. In 1965,when her husband was elected President of the Republic of the Philippines,she lived with him in Malacanang Palace and registered as a voter in SanMiguel, Manila.

[I]n February 1986 (she claimed that) she and her family were abducted andkidnapped to Honolulu, Hawaii. In November 1991, she came home toManila. In 1992, respondent ran for election as President of the Philippinesand filed her Certificate of Candidacy wherein she indicated that she is aresident and registered voter of San Juan, Metro Manila.

Applying the principles discussed to the facts found by COMELEC, what is inescapable isthat petitioner held various residences for different purposes during the last four decades.None of these purposes unequivocally point to an intention to abandon her domicile oforigin in Tacloban, Leyte. Moreover, while petitioner was born in Manila, as a minor shenaturally followed the domicile of her parents. She grew up in Tacloban, reached heradulthood there and eventually established residence in different parts of the country forvarious 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 establishingresidences in Tacloban, celebrating her birthdays and other important personal milestonesin her home province, instituting well-publicized projects for the benefit of her province andhometown, and establishing a political power base where her siblings and close relativesheld positions of power either through the ballot or by appointment, always with either herinfluence or consent. These well-publicized ties to her domicile of origin are part of thehistory and lore of the quarter century of Marcos power in our country. Either they wereentirely ignored in the COMELEC'S Resolutions, or the majority of the COMELEC did not

8/10/2019 art. vi- SEC 6-9


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 oforigin because she did not live there until she was eight years old. He avers that afterleaving the place in 1952, she "abandoned her residency (sic ) therein for many years and . .. (could not) re-establish her domicile in said place by merely expressing her intention to livethere again." We do not agree.

First, minor follows the domicile of his parents. As domicile, once acquired is retained until anew 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 notestablished only when her father brought his family back to Leyte contrary to privaterespondent's averments.

Second, domicile of origin is not easily lost. To successfully effect a change of domicile, onemust demonstrate: 37

1. An actual removal or an actual change of domicile;

2. A bona fide intention of abandoning the former place of residence andestablishing 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 originshould be deemed to continue. Only with evidence showing concurrence of all threerequirements 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 legalresidences 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 ofdomicile of origin in favor of a domicile of choice indeed occurred. To effect an abandonment requires thevoluntary act of relinquishing petitioner's former domicile with an intent to supplant the former domicilewith one of her own choosing (domicilium voluntarium).

In this connection, it cannot be correctly argued that petitioner lost her domicile of origin byoperation of law as a result of her marriage to the late President Ferdinand E. Marcos in1952. For there is a clearly established distinction between the Civil Code concepts of"domicile" and "residence." 39

The presumption that the wife automatically gains the husband's

domicile by operation of law upon marriage cannot be inferred from the use of the term "residence" in Article 110 of the Civil Code because the Civil Code is one area where the two concepts are welldelineated. Dr. Arturo Tolentino, writing on this specific area explains:

In the Civil Code, there is an obvious difference between domicile andresidence. Both terms imply relations between a person and a place; but inresidence, 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:

8/10/2019 art. vi- SEC 6-9


Art. 110. — The husband shall fix the residence of the family. But the courtmay exempt the wife from living with the husband if he should live abroadunless in the service of the Republic.

A survey of jurisprudence relating to Article 110 or to the concepts of domicile or residenceas they affect the female spouse upon marriage yields nothing which would suggest that thefemale spouse automatically loses her domicile of origin in favor of the husband's choice ofresidence upon marriage.

Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 whichstates:

La mujer esta obligada a seguir a su marido donde quiera que fije suresidencia. Los Tribunales, sin embargo, podran con justa causa eximirla deesta obligacion cuando el marido transende su residencia a ultramar o' a paisextranjero.

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 articleclearly contemplates only actual residence because it refers to a positive act of fixing afamily home or residence. Moreover, this interpretation is further strengthened by thephrase "cuando el marido translade su residencia" in the same provision which means,"when the husband shall transfer his residence," referring to another positive act ofrelocating the family to another home or place of actual residence. The article obviouslycannot be understood to refer to domicile which is a fixed,fairly-permanent concept when it plainly connotes the possibility of transferring from oneplace to another not only once, but as often as the husband may deem fit to move hisfamily, 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 thelaw to strengthen and unify the family, recognizing the fact that the husband and the wifebring into the marriage different domiciles (of origin). This difference could, for the sake offamily unity, be reconciled only by allowing the husband to fix a single place of actualresidence.

Very significantly, Article 110 of the Civil Code is found under Title V under the heading:RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately preceding

Article 110 is Article 109 which obliges the husband and wife to live together, thus:

Art. 109. — The husband and wife are obligated to live together, observe

mutual respect and fidelity and render mutual help and support.

The duty to live together can only be fulfilled if the husband and wife are physically together.This takes into account the situations where the couple has many residences (as in thecase of the petitioner). If the husband has to stay in or transfer to any one of theirresidences, 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

8/10/2019 art. vi- SEC 6-9


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 withreference to particular matters is synonymous with "domicile" is a question ofsome difficulty, and the ultimate decision must be made from a considerationof the purpose and intent with which the word is used. Sometimes they areused 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 presenceof a person in a place. A person can have two or more residences, such as acountry residence and a city residence. Residence is acquired by living inplace; on the other hand, domicile can exist without actually living in theplace. The important thing for domicile is that, once residence has beenestablished in one place, there be an intention to stay there permanently,

even if residence is also established in some otherplace. 41

In fact, even the matter of a common residence between the husband and the wife duringthe marriage is not an iron-clad principle; In cases applying the Civil Code on the questionof a common matrimonial residence, our jurisprudence has recognized certainsituations 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 practicalreasons, revert to her original domicile (apart from being allowed to opt for a new one). In De la Vinavs. 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 fordivorce."

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 liveseparately from her husband either by taking new residence or reverting to her domicile of origin, theCourt 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 theprovince of the courts of this country to attempt to compel one of the spousesto cohabit with, and render conjugal rights to, the other. Of course where theproperty rights of one of the pair are invaded, an action for restitution of suchrights can be maintained. But we are disinclined to sanction the doctrine thatan order, enforcible (sic ) by process of contempt, may be entered to compelthe 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 liveunder the same roof; and he experience of those countries where the courtsof justice have assumed to compel the cohabitation of married people showsthat the policy of the practice is extremely questionable. Thus in England,formerly the Ecclesiastical Court entertained suits for the restitution ofconjugal rights at the instance of either husband or wife; and if the facts werefound to warrant it, that court would make a mandatory decree, enforceableby process of contempt in case of disobedience, requiring the delinquent

8/10/2019 art. vi- SEC 6-9


party to live with the other and render conjugal rights. Yet this practice wassometimes criticized even by the judges who felt bound to enforce suchorders, and inWeldon v . Weldon (9 P.D. 52), decided in 1883, Sir JamesHannen, President in the Probate, Divorce and Admiralty Division of the HighCourt of Justice, expressed his regret that the English law on the subject wasnot the same as that which prevailed in Scotland, where a decree ofadherence, equivalent to the decree for the restitution of conjugal rights inEngland, could be obtained by the injured spouse, but could not be enforcedby imprisonment. Accordingly, in obedience to the growing sentiment againstthe practice, the Matrimonial Causes Act (1884) abolished the remedy ofimprisonment; though a decree for the restitution of conjugal rights can still beprocured, and in case of disobedience may serve in appropriate cases as thebasis of an order for the periodical payment of a stipend in the character ofalimony.

In the voluminous jurisprudence of the United States, only one court, so far aswe 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 wifewas ordered to follow and live with her husband, who had changed hisdomicile to the City of New Orleans. The decision referred to (Bahn v. Darby,36 La. Ann., 70) was based on a provision of the Civil Code of Louisianasimilar to article 56 of the Spanish Civil Code. It was decided many yearsago, and the doctrine evidently has not been fruitful even in the State ofLouisiana. In other states of the American Union the idea of enforcingcohabitation by process of contempt is rejected. (21 Cyc., 1148).

In a decision of January 2, 1909, the Supreme Court of Spain appears tohave affirmed an order of the Audiencia Territorial de Valladolid requiring awife to return to the marital domicile, and in the alternative, upon her failure todo so, to make a particular disposition of certain money and effects then inher possession and to deliver to her husband, as administrator of theganancial property, all income, rents, and interest which might accrue to herfrom 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 themarital domicile was sanctioned by any other penalty than the consequencesthat would be visited upon her in respect to the use and control of herproperty; and it does not appear that her disobedience to that order wouldnecessarily 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'sactual place of residence fixed by him. The problem here is that at that time, Mr. Marcoshad several places of residence, among which were San Juan, Rizal and Batac, IlocosNorte. There is no showing which of these places Mr. Marcos did fix as his family'sresidence. But assuming that Mr. Marcos had fixed any of these places as the conjugalresidence, what petitioner gained upon marriage was actual residence. She did not lose herdomicile of origin.

8/10/2019 art. vi- SEC 6-9


On the other hand, the common law concept of "matrimonial domicile" appears to havebeen incorporated, as a result of our jurisprudential experiences after the drafting of theCivil Code of 1950, into the New Family Code. To underscore the difference between theintentions of the Civil Code and the Family Code drafters, the term residence has beensupplanted by the term domicile in an entirely new provision (Art. 69) distinctly different inmeaning and spirit from that found in Article 110. The provision recognizes revolutionarychanges in the concept of women's rights in the intervening years by making the choice ofdomicile 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 thatinsofar as the Civil Code is concerned-affecting the rights and obligations of husband andwife — the term residence should only be interpreted to mean "actual residence." Theinescapable conclusion derived from this unambiguous civil law delineation therefore, is thatwhen petitioner married the former President in 1954, she kept her domicile of origin andmerely gained a new home, not adomicilium necessarium.

Even assuming for the sake of argument that petitioner gained a new "domicile" after hermarriage and only acquired a right to choose a new one after her husband died, petitioner'sacts following her return to the country clearly indicate that she not only impliedly butexpressly chose her domicile of origin (assuming this was lost by operation of law) as herdomicile. This "choice" was unequivocally expressed in her letters to the Chairman of thePCGG when petitioner sought the PCGG's permission to "rehabilitate (our) ancestral housein Tacloban and Farm in Olot, Leyte. . . to make them livable for the Marcos family to have ahome 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 clearlymanifested in her letters to the PCGG Chairman. She could not have gone straight to her home in SanJuan, 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 situationswhere the female spouse either reverts to her domicile of origin or chooses a new one during thesubsistence of the marriage, it would be highly illogical for us to assume that she cannot regain heroriginal domicile upon the death of her husband absent a positive act of selecting a new one wheresituations exist within the subsistence of the marriage itself where the wife gains a domicile different fromher husband.

In the light of all the principles relating to residence and domicile enunciated by this court upto this point, we are persuaded that the facts established by the parties weigh heavily infavor of a conclusion supporting petitioner's claim of legal residence or domicile in the FirstDistrict of Leyte.

II. The jurisdictional issue

Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering thatthe assailed resolutions were rendered on April 24, 1995, fourteen (14) days before theelection 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 VISec. 17 of the Constitution. This is untenable.

8/10/2019 art. vi- SEC 6-9


It is a settled doctrine that a statute requiring rendition of judgment within a specified time isgenerally construed to be merely directory, 49

"so that non-compliance with them does notinvalidate the judgment on the theory that if the statute had intended such result it would have clearlyindicated 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 Marcelinovs. Cruz held that:

51

The difference between a mandatory and directory provision is oftendetermined on grounds of expediency, the reason being that less injuryresults to the general public by disregarding than enforcing the letter of thelaw.

In Trapp v . Mc Cormick , a case calling for the interpretation of a statutecontaining a limitation of thirty (30) days within which a decree may beentered without the consent of counsel, it was held that "the statutoryprovisions which may be thus departed from with impunity, without affectingthe validity of statutory proceedings, are usually those which relate to themode or time of doing that which is essential to effect the aim and purpose ofthe Legislature or some incident of the essential act." Thus, in said case, thestatute under examination was construed merely to be directory.

The mischief in petitioner's contending that the COMELEC should have abstained fromrendering 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 refuseto render judgments merely on the ground of having failed to reach a decision within a givenor prescribed period.

In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78of B.P. 881, 52

it is evident that the respondent Commission does not lose jurisdiction to hear and decide

a pending disqualification case under Section 78 of B.P. 881 even after the elections.

As to the House of Representatives Electoral Tribunal's supposed assumption of jurisdictionover the issue of petitioner's qualifications after the May 8, 1995 elections, suffice it to saythat HRET's jurisdiction as the sole judge of all contests relating to the elections, returnsand qualifications of members of Congress begins only after a candidate has become amember 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 toeither to ignore or deliberately make distinctions in law solely on the basis of the personalityof 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 sakeperpetuating power during the pre-EDSA regime. We renege on these sacred ideals,including the meaning and spirit of EDSA ourselves bending established principles ofprinciples of law to deny an individual what he or she justly deserves in law. Moreover, indoing so, we condemn ourselves to repeat the mistakes of the past.

WHEREFORE, having determined that petitioner possesses the necessary residencequalifications to run for a seat in the House of Representatives in the First District of Leyte,

8/10/2019 art. vi- SEC 6-9


the COMELEC's questioned Resolutions dated April 24, May 7, May 11, and May 25, 1995are hereby SET ASIDE. Respondent COMELEC is hereby directed to order the ProvincialBoard of Canvassers to proclaim petitioner as the duly elected Representative of the FirstDistrict of Leyte.

SO ORDERED.

Feliciano, J., is on leave.

Separate Opinions

PUNO, J., concurring:

It was Aristotle who taught mankind that things that are alike should be treated alike, whilethings that are unalike should be treated unalike in proportion to their unalikeness. 1

Like

other candidates, petitioner has clearly met the residence requirement provided by Section 6, Article VI ofthe Constitution.

2 We cannot disqualify her and treat her unalike, for the Constitution guarantees equal

protection of the law. I proceed from the following factual and legal propositions:

First. There is no question that petitioner's original domicile is in Tacloban, Leyte. Herparents were domiciled in Tacloban. Their ancestral house is in Tacloban. They have vastreal estate in the place. Petitioner went to school and thereafter worked there. I considerTacloban as her initial domicile, both her domicile of origin and her domicile of choice. Herdomicile of origin as it was the domicile of her parents when she was a minor; and herdomicile of choice, as she continued living there even after reaching the age of majority.

Second. There is also no question that in May, 1954, petitioner married the late PresidentFerdinand E. Marcos. By contracting marriage, her domicile became subject to change bylaw, and the right to change it was given by Article 110 of the Civil Code provides:

Art. 110. The husband shall fix the residence of the family . But the court mayexempt the wife from living with the husband if he should live abroad unless

in the service of the Republic. 3 (Emphasis supplied)

In De la Viña v . Villareal and Geopano, 4 this Court explained why the domicile of the wife

ought to follow that of the husband. We held: "The reason is founded upon the theoreticidentity of person and interest between the husband and the wife, and the presumption that, fromthe nature of the relation, the home of one is the home of the other. It is intended to promote,strengthen, and secure their interests in this relation, as it ordinarily exists, where union andharmony prevail."

5 In accord with this objective, Article 109 of the Civil Code also obligated the

husband and wife "to live together."

8/10/2019 art. vi- SEC 6-9


Third. The difficult issues start as we determine whether petitioner's marriage to formerPresident Marcos ipso factoresulted in the loss of her Tacloban domicile. I respectfullysubmit 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 thefamily. In the exercise of the right, the husband may explicitly choose the prior domicile ofhis wife, in which case, the wife's domicile remains unchanged. The husband canalso implicitly acquiesce to his wife's prior domicile even if it is different. So we held in de laViña, 6

. . . . When married women as well as children subject to parental authoritylive, with the acquiescence of their husbands or fathers, in a place distinctfrom where the latter live, they have their ownindependent domicile. . . .

It is not, therefore, the mere fact of marriage but the deliberate choice of a differentdomicile by the husband that will change the domicile of a wife from what it was priorto their marriage. The domiciliary decision made by the husband in the exercise ofthe 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 cannotchange in any way the domicile legally fixed by the husband. These acts are void notonly because the wife lacks the capacity to choose her domicile but also becausethey are contrary to law and public policy.

In the case at bench, it is not disputed that former President Marcos exercised his right to fixthe family domicile and established it in Batac, Ilocos Norte, where he was then thecongressman. At that particular point of time and throughout their married life, petitioner losther domicile in Tacloban, Leyte. Since petitioner's Batac domicile has been fixed byoperation 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 alsoaffected in 1965 when her husband was elected President, when they lived in MalacañangPalace, and when she registered as a voter in San Miguel, Manila. Nor was it affected whenshe served as a member of the Batasang Pambansa, Minister of Human Settlements andGovernor 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 familydomicile in Batac and the evidence shows he did not effect any such change. To a largedegree, this follows the common law that "a woman on her marriage loses her own domicileand by operation of law, acquires that of her husband, no matter where the wife actuallylives or what she believes or intends." 7

Fourth. The more difficult task is how to interpret the effect of the death on September 28,1989 of former President Marcos on petitioner's Batac domicile. The issue is of first

impression in our jurisdiction and two (2) schools of thought contend for acceptance. One isespoused by our distinguished colleague, Mr. Justice Davide, Jr., heavily relying on

American authorities. 8 He echoes the theory that after the husband's death, the wife retains the lastdomicile of her husband until she makes an actual change .

I do not subscribe to this submission. The American case law that the wife still retains herdead husband's domicile is based on ancient common law which we can no longer apply inthe Philippine setting today . The common law identified the domicile of a wife as that of the

8/10/2019 art. vi- SEC 6-9


husband and denied to her the power of acquiring a domicile of her own separate and apartfrom him. 9

Legal scholars agree that two (2) reasons support this common law doctrine. The firstreason as pinpointed by the legendary Blackstone is derived from the view that "the very being or legalexistence of the woman is suspended duringthe marriage, or at least is incorporated and consolidated into that of the husband."

10 The second

reason lies in "the desirability of having the interests of each member of the family unit governed by the

same law." 11

The presumption that the wife retains the domicile of her deceased husband isan extension of this common law concept. The concept and its extension have provided some of the mostiniquitous jurisprudence against women. It was under common law that the 1873 American caseof Bradwell v . Illinois

12 was decided where women were denied the right to practice law. It was

unblushingly ruled that "the natural and proper timidity and delicacy which belongs to the female sexevidently unfits it for many of the occupations of civil life . . . This is the law of the Creator." Indeed, therulings relied upon by Mr. Justice Davide in CJS

13 and AM JUR 2d

14 are American state court decisions

handed down between the years 1917 15

and 1938, 16

or before the time when women were accordedequality of rights with men. Undeniably, the women's liberation movement resulted in far-ranging statelegislations in the United States to eliminate gender inequality.

17 Starting in the decade of the seventies,

the courts likewise liberalized their rulings as they started invalidating laws infected with gender-bias. Itwas in 1971 when the US Supreme Court in Reed v . Reed ,

18 struck a big blow for women equality when

it declared as unconstitutional an Idaho law that required probate courts to choose male family membersover females as estate administrators. It held that mere administrative inconvenience cannot justify a sex-based distinction. These significant changes both in law and in case law on the status of women virtuallyobliterated the iniquitous common law surrendering the rights of married women to their husbands basedon the dubious theory of the parties' theoretic oneness . The Corpus Juris Secundum editors did not missthe relevance of this revolution on women's right as they observed: "However, it has been declared thatunder modern statutes changing the status of married women and departing from the common law theoryof marriage, there is no reason why a wife may not acquire a separate domicile for every purpose knownto the law ."

19 In publishing in 1969 the Restatement of the Law, Second (Conflict of Laws 2d), the

reputable American Law Institute also categorically stated that the view of Blackstone ". . . is no longerheld . As the result of statutes and court decisions, a wife now possesses practically the same rights and powers as her unmarried sister ."

20

In the case at bench, we have to decide whether we should continue clinging to

the anachronistic common law that demeans women, especially married women. I submitthat the Court has no choice except to break away from this common law rule, the root ofthe many degradations of Filipino women. Before 1988, our laws particularly the Civil Code,were full of gender discriminations against women. Our esteemed colleague, MadamJustice Flerida Ruth Romero, cited a few of them as follows: 21

xxx xxx xxx

Legal Disabilities Suffered by Wives

Not generally known is the fact that under the Civil Code, wives suffer undercertain restrictions or disabilities. For instance, the wife cannot accept giftsfrom others, regardless of the sex of the giver or the value of the gift, otherthan from her very close relatives, without her husband's consent. She mayaccept only from, say, her parents, parents-in-law, brothers, sisters and therelatives within the so-called fourth civil degree. She may not exercise herprofession or occupation or engage in business if her husband objects onserious grounds or if his income is sufficient to support their family inaccordance with their social standing. As to what constitutes "seriousgrounds" for objecting, this is within the discretion of the husband.

8/10/2019 art. vi- SEC 6-9


xxx xxx xxx

Because of the present inequitable situation, the amendments to the CivilLaw being proposed by the University of the Philippines Law Center wouldallow absolute divorce which severes the matrimonial ties, such that thedivorced spouses are free to get married a year after the divorce is decreedby the courts. However, in order to place the husband and wife on an equalfooting insofar as the bases for divorce are concerned, the following arespecified as the grounds for absolute divorce: (1) adultery or having aparamour committed by the respondent in any of the ways specified in theRevised Penal Code or (2) an attempt by the respondent against the life ofthe petitioner which amounts to attempted parricide under the Revised PenalCode; (3) abandonment of the petitioner by the respondent without just causefor a period of three consecutive years; or (4) habitual maltreatment.

With respect to property relations, the husband is automatically theadministrator of the conjugal property owned in common by the married

couple even if the wife may be the more astute or enterprising partner. Thelaw does not leave it to the spouses to decide who shall act as suchadministrator. Consequently, the husband is authorized to engage in acts andenter into transactions beneficial to the conjugal partnership. The wife,however, cannot similarly bind the partnership without the husband's consent.

And while both exercise joint parental authority over their children, it is thefather whom the law designates as the legal administrator of the propertypertaining to the unemancipated child.

Taking the lead in Asia, our government exerted efforts, principally throughlegislations, to eliminate inequality between men and women in our land. Thewatershed came on August 3, 1988 when our Family Code took effect which, amongothers, terminated the unequal treatment of husband and wife as to their rights andresponsibilities. 22

The Family Code attained this elusive objective by giving new rights to married women andby abolishing sex-based privileges of husbands. Among others, married women are nowgiven the joint right to administer the family property, whether in the absolute communitysystem or in the system of conjugal partnership; 23

joint parental authority over their minor children,both over their persons as well as their properties;

24 joint responsibility for the support of the family;

25 the

right to jointly manage the household; 26

and, the right to object to their husband's exercise of profession,occupation, business or activity.

27 Of particular relevance to the case at bench is Article 69 of the Family

Code which took away the exclusive right of the husband to fix the family domicile and gave it jointly tothe husband and the wife, thus:

Art. 69. The husband and wife shall fix the family domicile. In case ofdisagreement, the court shall decide.

The court may exempt one spouse from living with the other if the lattershould live abroad or there are other valid and compelling reasons for the

8/10/2019 art. vi- SEC 6-9


exemption. However, such exemption shall not apply if the same is notcompatible with the solidarity of the family. (Emphasis supplied)

Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of thehusband and wife to live together, former Madam Justice Alice Sempio-Diy of theCourt of Appeals specified the instances when a wife may now refuse to live with herhusband , thus: 28

(2) The wife has the duty to live with her husband, but she may refuse to do so in certaincases like:

(a) If the place chosen by the husband as family residence isdangerous to her Life;

(b) If the husband subjects her to maltreatment or abusiveconduct or insults, making common life impossible;

(c) If the husband compels her to live with his parents, but shecannot get along with her mother-in-law and they have constantquarrels (Del Rosario v. Del Rosario, CA, 46 OG 6122);

(d) Where the husband has continuously carried illicit relationsfor 10 years with different women and treated his wife roughlyand without consideration. (Dadivas v. Villanueva, 54 Phil. 92);

(e) Where the husband spent his time in gambling, giving nomoney to his family for food and necessities, and at the sametime insulting his wife and laying hands on her. (Panuncio v.Sula, CA, 34 OG 129);

(f) If the husband has no fixed residence and lives a vagabondlife as a tramp (1 Manresa 329);

(g) If the husband is carrying on a shameful business at home(Gahn v. Darby, 38 La. Ann. 70).

The inescapable conclusion is that our Family Code has completely emancipated thewife from the control of the husband , thus abandoning the parties' theoretic identityof interest. No less than the late revered Mr. Justice J.B.L. Reyes who chaired theCivil Code Revision Committee of the UP Law Center gave this insightful view in one

of his rare lectures after retirement: 29

xxx xxx xxx

The Family Code is primarily intended to reform the family law so as toemancipate the wife from the exclusive control of the husband and to placeher at parity with him insofar as the family is concerned.The wife and thehusband are now placed on equal standing by the Code. They are now joint

8/10/2019 art. vi- SEC 6-9


administrators of the family properties and exercise joint authority over thepersons and properties of their children. This means a dual authority in thefamily. The husband will no longer prevail over the wife but she has to agreeon all matters concerning the family. (Emphasis supplied)

In light of the Family Code which abrogated the inequality between husband andwife as started and perpetuated by the common law, there is no reason in espousingthe 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 hasbeen 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 ormanner such as by ruling that the petitioner is still bound by the domiciliarydetermination of her dead husband.

Aside from reckoning with the Family Code, we have to consider our Constitution and itsfirm guarantees of due process and equal protection oflaw. 30

It can hardly be doubted that the common law imposition on a married woman of her dead

husband's domicile even beyond his grave is patently discriminatory to women . It is a gender-baseddiscrimination and is not rationally related to the objective of promoting family solidarity. It cannot survivea constitutional challenge. Indeed, compared with our previous fundamental laws, the 1987 Constitution ismore concerned with equality between sexes as it explicitly commands that the State ". . . shall ensurefundamental equality before the law of women and men." To be exact, section 14, Article II provides: "TheState recognizes the role of women in nation building, and shall ensure fundamental equality before thelaw of women and men. We shall be transgressing the sense and essence of this constitutional mandateif we insist on giving our women the caveman's treatment.

Prescinding from these premises, I respectfully submit that the better stance is to rule that petitioner reacquired her Tacloban domicile upon the death of her husband in 1989. This isthe necessary consequence of the view that petitioner's Batac dictated domicile did notcontinue after her husband's death; otherwise, she would have no domicile and that willviolate the universal rule that no person can be without a domicile at any point of time. Thisstance also restores the right of petitioner to choose her domicile before it was taken awayby Article 110 of the Civil Code, a right now recognized by the Family Code and protectedby the Constitution. Likewise, I cannot see the fairness of the common law requiringpetitioner to choose again her Tacloban domicile before she could be released from herBatac domicile. She lost her Tacloban domicile not through her act but through the act ofher deceased husband when he fixed their domicile in Batac. Her husband is dead and hecannot rule her beyond the grave. The law disabling her to choose her own domicile hasbeen repealed. Considering all these, common law should not put the burden on petitionerto prove she has abandoned her dead husband's domicile. There is neither rhyme norreason for this gender-based burden.

But even assuming arguendo that there is need for convincing proof that petitioner chose toreacquire her Tacloban domicile, still, the records reveal ample evidence to this effect . Inher affidavit submitted to the respondent COMELEC, petitioner averred:

xxx xxx xxx

8/10/2019 art. vi- SEC 6-9


36. In November, 1991, I came home to our beloved country, after severalrequests for my return were denied by President Corazon C. Aquino, andafter I filed suits for our Government to issue me my passport.

37. But I came home without the mortal remains of my beloved husband,President Ferdinand E. Marcos, which the Government considered a threat tothe national security and welfare.

38. Upon my return to the country, I wanted to immediately live and reside inTacloban City or in Olot, Tolosa, Leyte, even if my residences there were notlivable as they had been destroyed and cannibalized. The PCGG, however,did not permit and allow me.

39. As a consequence, I had to live at various times in the Westin PhilippinePlaza in Pasay City, a friend's apartment on Ayala Avenue, a house in SouthForbes Park which my daughter rented, and Pacific Plaza, all in Makati.

40. After the 1992 Presidential Elections, I lived and resided in the residenceof my brother in San Jose, Tacloban City, and pursued my negotiations withPCGG to recover my sequestered residences in Tacloban City and BarangayOlot, Tolosa, Leyte.

40.1 In preparation for my observance of All Saints' Day and AllSouls' Day that year, I renovated my parents' burial groundsand entombed their bones which had been excalvated,unearthed and scattered.

41. On November 29, 1993, I formally wrote PCGG Chairman Magtanggol

Gunigundo for permissions to —

. . . rehabilitate . . . (o)ur ancestral house in Tacloban andfarmhouse in Olot, Leyte . . . to make them livable for us theMarcos family to have a home in our own motherland.

xxx xxx xxx

42. It was only on 06 June 1994, however, when PCGG ChairmanGunigundo, in his letter to Col. Simeon Kempis, Jr., PCGG Region 8Representative, allowed me to repair and renovate my Leyte residences. Iquote part of his letter:

Dear Col. Kempis,

Upon representation by Mrs. Imelda R. Marcos to thisCommission, that she intends to visit our sequesteredproperties in Leyte, please allow her access thereto. She mayalso cause repairs and renovation of the sequesteredproperties, in which event, it shall be understood that her

8/10/2019 art. vi- SEC 6-9


undertaking said repairs is not authorization for her to take oversaid properties, and that all expenses shall be for her accountand not reimbursable. Please extend the necessary courtesy toher.

xxx xxx xxx

43. I was not permitted, however, to live and stay in the Sto. Niño Shrineresidence in Tacloban City where I wanted to stay and reside, after repairsand renovations were completed. In August 1994, I transferred from SanJose, Tacloban City, to my residence in Barangay Olot, Tolosa, Leyte, whenPCGG permitted me to stay and live there.

It is then clear that in 1992 petitioner reestablished her domicile in the First District ofLeyte. It is not disputed that in 1992, she first lived at the house of her brother in SanJose, Tacloban City and later, in August 1994, she transferred her residence inBarangay Olot, Tolosa, Leyte. Both Tacloban City and the municipality of Olot are

within the First District of Leyte. Since petitioner reestablished her old domicile in1992 in the First District of Leyte, she more than complied with the constitutionalrequirement of residence". . . for a period of not less than one year immediately preceding the day of theelection," i .e., the May 8, 1995 elections.

The evidence presented by the private respondent to negate the Tacloban domicile of petitioner is nil . He presented petitioner's Voter's Registration Record filed with the Board ofElection Inspectors of Precinct 10-A of Barangay Olot, Tolosa, Leyte wherein she statedthat her period of residence in said barangay was six (6) months as of the date of her filingof said Voter's Registration Record on January 28, 1995. 31

This statement in petitioner's Voter'sRegistration Record is a non-prejudicial admission. The Constitution requires at least one (1) yearresidence in thedistrict in which the candidate shall be elected. In the case at bench, the reference is theFirst District of Leyte. Petitioner's statement proved that she resided in Olot six (6) months before January28, 1995 but did not disprove that she has also resided in Tacloban City starting 1992. As aforestated,Olot and Tacloban City are both within the First District of Leyte, hence, her six (6) months residence inOlot should be counted not against, but in her favor. Private respondent also presented petitioner'sCertificate of Candidacy filed on March 8, 1995

32 where she placed seven (7) months after Item No. 8

which called for information regarding "residence in the constituency where I seek to be electedimmediately preceding the election." Again, this original certificate of candidacy has no evidentiary valuebecause an March 1, 1995 it was corrected by petitioner. In her Amended/Corrected Certificate ofCandidacy,

33 petitioner wrote "since childhood" after Item No. 8. The amendment of a certificate of

candidacy to correct a bona fide mistake has been allowed by this Court as a matter of course and as amatter of right. As we held in Alialy v . COMELEC ,

34 viz .:

xxx xxx xxx

The absence of the signature of the Secretary of the local chapter N.P in theoriginal certificate of candidacy presented before the deadline September 11,1959, did not render the certificate invalid.The amendment of the certificate,although at a date after the deadline, but before the election, was substantialcompliance with the law, and the defect was cured .

8/10/2019 art. vi- SEC 6-9


It goes without saying that petitioner's erroneous Certificate of Candidacy filed onMarch 8, 1995 cannot be used as evidence against her. Private respondent's petitionfor the disqualification of petitioner rested alone on these two (2) brittle pieces ofdocumentary evidence — petitioner's Voter's Registration Record and her originalCertificate of Candidacy. Ranged against the evidence of the petitioner showing herceaseless contacts with Tacloban, private respondent's two (2) pieces of evidenceare too insufficient to disqualify petitioner, more so, to deny her the right to representthe people of the First District of Leyte who have overwhelmingly voted for her.

Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates forany public office shall be free from any form of harassment and discrimination." 35

A detached

reading of the records of the case at bench will show that all forms of legal and extra-legal obstacles havebeen thrown against petitioner to prevent her from running as the people's representative in the FirstDistrict of Leyte. In petitioner's Answer to the petition to disqualify her, she averred:

36

xxx xxx xxx

10. Petitioner's (herein private respondent Montejo) motive in filing the instantpetition is devious. When respondent (petitioner herein) announced that shewas intending to register as a voter in Tacloban City and run for Congress inthe First District of Leyte, petitioner (Montejo) immediately opposed herintended registration by writing a letter stating that "she is not a resident ofsaid city but of Barangay Olot, Tolosa, Leyte." (Annex "2" of respondent'saffidavit, Annex "2"). After respondent (petitioner herein) had registered as avoter in Tolosa following completion of her six-month actual residencetherein, petitioner (Montejo) filed a petition with the COMELEC to transfer thetown of Tolosa from the First District to the Second District and pursued suchmove up to the Supreme Court in G.R. No. 118702, his purpose being toremove respondent (petitioner herein) as petitioner's (Montejo's) opponent in

the congressional election in the First District. He also filed a bill, along withother Leyte Congressmen, seeking to create another legislative district, toremove the town of Tolosa out of the First District and to make it a part of thenew district, to achieve his purpose. However, such bill did not pass theSenate. 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 himselfalong with respondent (petitioner herein) for the judgment and verdict of theelectorate of the First District of Leyte in an honest, orderly, peaceful, freeand clean elections on May 8, 1995.

These allegations which private respondent did not challenge were not lost

to the perceptive eye of Commissioner Maambong who in his DissentingOpinion, 37 held:

xxx xxx xxx

Prior to the registration date — January 28, 1995 the petitioner (herein privaterespondent Montejo) wrote the Election Officer of Tacloban City not to allowrespondent (petitioner herein) to register thereat since she is a resident ofTolosa and not Tacloban City. The purpose of this move of the petitioner

8/10/2019 art. vi- SEC 6-9


(Montejo) is not lost to (sic ) the Commission. In UND No. 95-001 (In thematter of the Legislative Districts of the Provinces of Leyte, Iloilo, and SouthCotabato, Out of Which the New Provinces of Biliran, Guimaras andSaranggani Were Respectively Created ), . . . Hon. Cirilo Roy G. Montejo,Representative, First District of Leyte, wanted the Municipality of Tolosa, inthe First District of Leyte, transferred to the Second District of Leyte. TheHon. Sergio A.F. Apostol, Representative of the Second District of Leyte,opposed the move of the petitioner (Montejo). Under Comelec Resolution No.2736 (December 29, 1994), the Commission on Elections refused to makethe proposed transfer. Petitioner (Montejo) filed "Motion for Reconsiderationof ResolutionNo. 2736 " which the Commission denied in a Resolution promulgated onFebruary 1, 1995. Petitioner (Montejo) filed a petition for certiorari before the

Honorable Supreme Court (Cirilo Roy G. Montejo vs. Commission onElections, G.R. No. 118702) questioning the resolution of the Commission.Believing that he could get a favorable ruling from the Supreme Court,petitioner (Montejo) tried to make sure that the respondent (petitioner herein)

will register as a voter in Tolosa so that she will be forced to run asRepresentative not in the First but in the Second District.

It did not happen. On March 16, 1995, the Honorable Supreme Courtunanimously promulgated a "Decision," penned by Associate Justice ReynatoS. Puno, the dispositive portion of which reads:

IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofaras it transferred the municipality of Capoocan of the SecondDistrict and the municipality of Palompon of the Fourth Districtto the Third District of the province of Leyte, is annulled and setaside. We also deny the Petition praying for the transfer of themunicipality of Tolosa from the First District to the SecondDistrict of the province of Leyte. No costs.

Petitioner's (Montejo's) plan did not work. But the respondent (petitionerherein) was constrained to register in the Municipality of Tolosa where herhouse is instead of Tacloban City, her domicile. In any case, both TaclobanCity and Tolosa are in the First Legislative District.

All these attempts to misuse our laws and legal processes are forms of rankharassments and invidious discriminations against petitioner to deny her equalaccess 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 allowthe harassment and discrimination of petitioner who has lived a controversial life, apast 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 tointerpret the Constitution is to inject in its interpretation, bile and bitterness.

Sixth. In Gallego v . Vera, 38 we explained that the reason for this residence requirement is "to exclude

a stranger or newcomer, unacquainted, with the conditions and needs of a community and not identified

8/10/2019 art. vi- SEC 6-9


with the latter, from an elective office to serve that community . . . ." Petitioner's lifetime contacts with theFirst District of Leyte cannot be contested. Nobody can claim that she is not acquainted with its problemsbecause she is a stranger to the place. None can argue she cannot satisfy the intent of the Constitution.

Seventh. In resolving election cases, a dominant consideration is the need to effectuate thewill 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-SixThousand Eight Hundred Thirty-Three (36,833) votes. Petitioner is clearly the overwhelmingchoice of the electorate of the First District of Leyte and this is not a sleight of statistics. Wecannot frustrate this sovereign will on highly arguable technical considerations. In case ofdoubt, we should lean towards a rule that will give life to the people's political judgment.

A final point . The case at bench provides the Court with the rare opportunity to rectify theinequality of status between women and men by rejecting the iniquitous common lawprecedents on the domicile of married women and by redefining domicile in accord with ourown culture, law, and Constitution. To rule that a married woman is eternally tethered to thedomicile dictated by her dead husband is to preserve the anachronistic and anomalous

balance of advantage of a husband over his wife. We should not allow the dead to governthe living even if the glories of yesteryears seduce us to shout long live the dead! TheFamily Code buried this gender-based discrimination against married women and weshould not excavate what has been entombed. More importantly, the Constitution forbids it.

I vote to grant the petition.

Bellosillo and Melo, JJ., concur.

FRANCISCO, J., concurring:

I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the position of

Representative of the First Congressional District of Leyte. I wish, however, to express afew comments on the issue of petitioner's domicile.

Domicile has been defined as that place in which a person's habitation is fixed, without anypresent intention of removing therefrom, and that place is properly the domicile of a personin which he has voluntarily fixed his abode, or habitation, not for a mere special ortemporary 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 thesense that they disclose intent. (Ong Huan Tin v. Republic, 19 SCRA 966, 969)

Domicile is classified into domicile of origin and domicile of choice. The law attributes toevery individual a domicile of origin, which is the domicile of his parents, or of the head ofhis family, or of the person on whom he is legally dependent at the time of his birth. Whilethe 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 haselected and chosen for himself to displace his previous domicile; it has for its true basis orfoundation the intention of the person (28 C.J.S. §6). In order to hold that a person hasabandoned his domicile and acquired a new one called domicile of choice, the following

8/10/2019 art. vi- SEC 6-9


requisites must concur, namely, (a) residence or bodily presence in the new locality, (b)intention to remain there or animus manendi , and (c) an intention to abandon the olddomicile or animus non revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA408, 415). A third classification is domicile by operation of law which attributes to a person adomicile independent of his own intention or actual residence, ordinarily resulting from legaldomestic relations, as that of the wife arising from marriage, or the relation of a parent and achild (28 C.J.S. §7).

In election law, when our Constitution speaks of residence for election purposes it meansdomicile (Co v. Electoral Tribunal of the House of Representatives, 199 SCRA 692, 713;Nuval v. Guray, 52 Phil. 645, 651). To my mind, public respondent Commission onElections misapplied this concept, of domicile which led to petitioner's disqualification byruling that petitioner failed to comply with the constitutionally mandated one-year residencerequirement. Apparently, public respondent Commission deemed as conclusive petitioner'sstay and registration as voter in many places as conduct disclosing her intent to abandonher established domicile of origin in Tacloban, Leyte. In several decisions, though, the Courthas 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, 96Phil. 294, 300). Respondent Commission offered no cogent reason to depart from this ruleexcept to surmise petitioner's intent of abandoning her domicile of origin.

It has been suggested that petitioner's domicile of origin was supplanted by a new domiciledue to her marriage, a domicile by operation of law. The proposition is that upon the deathof her husband in 1989 she retains her husband's domicile, i .e., Batac, Ilocos Norte, untilshe makes an actual change thereof. I find this proposition quite untenable.

Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily supplanted withanother, i .e., Batac, Ilocos Norte, upon her marriage in 1954 with then CongressmanMarcos. By legal fiction she followed the domicile of her husband. In my view, the reason forthe law is for the spouses to fully and effectively perform their marital duties and obligationsto one another. 1

The question of domicile, however, is not affected by the fact that it was the legal or

moral duty of the individual to reside in a given place (28 C.J.S. §11). Thus, while the wife retains hermarital 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 thedeath of her husband, would be placed in a quite absurd and unfair situation of having been freed from allwifely obligations yet made to hold on to one which no longer serves any meaningful purpose.

It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyteupon her husband's death without even signifying her intention to that effect. It is for theprivate respondent to prove, not for petitioner to disprove, that petitioner has effectivelyabandoned Tacloban, Leyte for Batac, Ilocos Norte or for some other place/s. The clear ruleis that it is the party (herein private respondent) claiming that a person has abandoned orlost his residence of origin who must show and prove preponderantly such abandonment orloss (Faypon v. Quirino,supra at 298; 28 C.J.S. §16), because the presumption is strongly infavor of an original or former domicile, as against an acquired one (28 C.J.S. §16). Privaterespondent unfortunately failed to discharge this burden as the record is devoid ofconvincing proof that petitioner has acquired whether voluntarily or involuntarily, a newdomicile to replace her domicile of origin.

8/10/2019 art. vi- SEC 6-9


The records, on the contrary, clearly show that petitioner has complied with theconstitutional one-year residence requirement. After her exile abroad, she returned to thePhilippines in 1991 to reside in Olot, Tolosa, Leyte, but the Presidential Commission onGood Government which sequestered her residential house and other properties forbadeher necessitating her transient stay in various places in Manila (Affidavit p.6, attached as

Annex I of the Petition). In 1992, she ran for the position of president writing in hercertificate of candidacy her residence as San Juan, Metro Manila. After her loss therein, shewent back to Tacloban City, acquired her residence certificate 2

and resided with her brother in

San Jose. She resided in San Jose, Tacloban City until August of 1994 when she was allowed by thePCGG to move and reside in her sequestered residential house in Olot, Tolosa, Leyte (Annex I, p. 6).

3 It

was in the same month of August when she applied for the cancellation of her previous registration in SanJuan, 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-yearresidence requirement the date when she applied for the cancellation of her previous registration in SanJuan, Metro Manila. The fact which private respondent never bothered to disprove is that petitionertransferred her residence after the 1992 presidential election from San Juan, Metro Manila to San Jose,Tacloban City, and resided therein until August of 1994. She later transferred to Olot, Tolosa, Leyte(Annex I, p. 7). It appearing that both Tacloban City and Tolosa, Leyte are within the First CongressionalDistrict of Leyte, it indubitably stands that she had more than a year of residence in the constituency shesought to be elected. Petitioner, therefore, has satisfactorily complied with the one-year qualificationrequired by the 1987 Constitution.


ROMERO, J., separate opinion:

Petitioner has appealed to this Court for relief after the COMELEC ruled that she wasdisqualified from running for Representative of her District and that, in the event that sheshould, nevertheless, muster a majority vote, her proclamation should be suspended. Notby a straightforward ruling did the COMELEC pronounce its decision as has been its

unvarying practice in the past, but by a startling succession of "reverse somersaults."Indicative of its shifting stance vis-a-vis petitioner's certificate of candidacy were first, theaction of its Second Division disqualifying her and canceling her original Certificate ofCandidacy by a vote of 2-1 on April 24, 1995; then the denial by the COMELEC en banc ofher Motion for Reconsideration on May 7, 1995, a day before the election; then becauseshe persisted in running, its decision onMay 11, 1995 or three days after the election, allowing her proclamation in the event thatthe results of the canvass should show that she obtained the highest number of votes(obviously noting that petitioner had won overwhelmingly over her opponent), but almostsimultaneously reversing itself by directing that even if she wins, her proclamation shouldnonetheless be suspended.

Crucial to the resolution of the disqualification issue presented by the case at bench is theinterpretation to be given to the one-year residency requirement imposed by theConstitution on aspirants for a Congressional seat. 1

Bearing in mind that the term "resident" has been held to be synonymous with "domicile" forelection purposes, it is important to determine whether petitioner's domicile was in the FirstDistrict 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

8/10/2019 art. vi- SEC 6-9


birth. Depending on what theory one adopts, the same may have been changed when shemarried 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 byhim 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 oflaw," which subject we shall not belabor since it has been amply discussed bythe ponenteand in the other separate opinions.

In any case, what assumes relevance is the divergence of legal opinion as to the effect ofthe husband's death on the domicile of the widow. Some scholars opine that the widow'sdomicile remains unchanged; that the deceased husband's wishes perforce still bind thewife he has left behind. Given this interpretation, the widow cannot possibly go far enoughto sever the domiciliary tie imposed by her husband.

It is bad enough to interpret the law as empowering the husband unilaterally to fix theresidence or domicile of the family, as laid down in the Civil Code, 2

but to continue giving

obeisance to his wishes even after the rationale underlying the mutual duty of the spouses to live together

has ceased, is to close one's eyes to the stark realities of the present.

At the other extreme is the position that the widow automatically reverts to her domicile oforigin upon the demise of her husband. Does the law so abhor a vacuum that the widowhas to be endowed somehow with a domicile? To answer this question which is far fromrhetorical, one will have to keep in mind the basic principles of domicile. Everyone musthave a domicile. Then one must have only a single domicile for the same purpose at anygiven time. Once established, a domicile remains until a new one is acquired, for no personlives who has no domicile, as defined by the law be is subject to.

At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction,rendered more murky by the conflicting opinions of foreign legal authorities. This being the

state of things, it is imperative as it is opportune to illumine the darkness with the beaconlight of truth, as dictated by experience and the necessity of according petitioner her right tochoose her domicile in keeping with the enlightened global trend to recognize and protectthe human rights of women, no less than men.

Admittedly, the notion of placing women at par with men, insofar as civil, political and socialrights are concerned, is a relatively recent phenomenon that took seed only in the middle ofthis century. It is a historical fact that for over three centuries, the Philippines had beencolonized by Spain, a conservative, Catholic country which transplanted to our shores theOld World cultures, mores and attitudes and values. Through the imposition on ourgovernment of the Spanish Civil Code in 1889, the people, both men and women, had no

choice but to accept such concepts as the husband's being the head of the family and thewife's subordination to his authority. In such role, his was the right to make vital decisionsfor the family. Many instances come to mind, foremost being what is related to the issuebefore us, namely, that "the husband shall fix the residence of the family." 3

Because he ismade responsible for the support of the wife and the rest of the family,

4 he is also empowered to be the

administrator of the conjugal property, with a few exceptions 5 and may, therefore, dispose of the conjugal

partnership property for the purposes specified under the law; 6

whereas, as a general rule, the wifecannot bind the conjugal partnership without the husband's consent.

7 As regards the property pertaining

to the children under parental authority, the father is the legal administrator and only in his absence may

8/10/2019 art. vi- SEC 6-9


the mother assume his powers. 8 Demeaning to the wife's dignity are certain strictures on her personal

freedoms, practically relegating her to the position of minors and disabled persons. To illustrate a few:The wife cannot, without the husband's consent, acquire any gratuitous title, except from her ascendants,descendants, parents-in-law, and collateral relatives within the fourth degree.

9 With respect to her

employment, the husband wields a veto power in the case the wife exercises her profession oroccupation or engages in business, provided his income is sufficient for the family, according to its socialstanding and his opposition is founded on serious and valid grounds.

10 Most offensive, if not repulsive, to

the liberal-minded is the effective prohibition upon a widow to get married till after three hundred daysfollowing the death of her husband, unless in the meantime, she has given birth to a child.

11 The mother

who contracts a subsequent marriage loses the parental authority over her children, unless the deceasedhusband, father of the latter, has expressly provided in his will that his widow might marry again, and hasordered that in such case she should keep and exercise parental authority over their children.

12 Again, an

instance of a husband's overarching influence from beyond the grave.

All these indignities and disabilities suffered by Filipino wives for hundreds of years evokedno protest from them until the concept of human rights and equality between and amongnations and individuals found hospitable lodgment in the United Nations Charter of whichthe Philippines was one of the original signatories. By then, the Spanish "conquistadores"had been overthrown by the American forces at the turn of the century. The bedrock of the

U.N. Charter was firmly anchored on this credo: "to reaffirm faith in the fundamental humanrights, in the dignity and worth of the human person, in the equal rights of men and women."(Emphasis supplied)

It took over thirty years before these egalitarian doctrines bore fruit, owing largely tothe burgeoning of the feminist movement. What may be regarded as theinternational bill of rights for women was implanted in the Convention on theElimination of All Forms of Discrimination Against Women (CEDAW) adopted by theU.N. General Assembly which entered into force as an international treaty onSeptember 3, 1981. In ratifying the instrument, the Philippines bound itself toimplement its liberating spirit and letter, for its Constitution, no less, declared that

"The Philippines. . . adopts the generally accepted principles of international law aspart of the law of the land and adheres to the policy of peace, equality, justice,freedom, cooperation, and amity with all nations." 13

One such principle embodied in the

CEDAW is granting to men and women "the same rights with regard to the law relating to themovement of persons and the freedom to choose their residence and domicile."

14(Emphasis

supplied).

CEDAW's pro-women orientation which was not lost on Filipino women was reflected in the1987 Constitution of the Philippines and later, in the Family Code, 15

both of which werespeedily approved by the first lady President of the country, Corazon C. Aquino. Notable for its emphasison the human rights of all individuals and its bias for equality between the sexes are the followingprovisions: "The State values the dignity of every human person and guarantees full respect for humanrights"

16 and "The State recognizes the role of women in nation-building, and shall ensure the

fundamental equality before the law of women and men." 17

A major accomplishment of women in their quest for equality with men and the eliminationof discriminatory provisions of law was the deletion in the Family Code of almost all of theunreasonable strictures on wives and the grant to them of personal rights equal to that oftheir husbands. Specifically, the husband and wife are now given the right jointly to fix thefamily domicile; 18

concomitant to the spouses' being jointly responsible for the support of the family is

the right and duty of both spouses to manage the household; 19

the administration and the enjoyment of

8/10/2019 art. vi- SEC 6-9


the community property shall belong to both spouses jointly; 20

the father and mother shall now jointlyexercise legal guardianship over the property of their unemancipated common child

21 and several others.

Aware of the hiatus and continuing gaps in the law, insofar as women's rights areconcerned, Congress passed a law popularly known as "Women in Development andNation Building Act" 22

Among the rights given to married women evidencing their capacity to act in

contracts equal to that of men are:

(1) Women shall have the capacity to borrow and obtain loans and execute security andcredit arrangements under the same conditions as men;

(2) Women shall have equal access to all government and private sector programs grantingagricultural credit, loans and non material resources and shall enjoy equal treatment inagrarian reform and land resettlement programs;

(3) Women shall have equal rights to act as incorporators and enter into insurancecontracts; and

(4) Married women shall have rights equal to those of married men in applying forpassports, secure visas and other travel documents, without need to secure the consent oftheir spouses.

As the world draws the curtain on the Fourth World Conference of Women in Beijing, let thisCourt now be the first to respond to its clarion call that "Women's Rights are Human Rights"and that "All obstacles to women's full participation in decision-making at all levels, includingthe family" should be removed. Having been herself a Member of the Philippine Delegationto the International Women's Year Conference in Mexico in 1975, this writer is only tookeenly aware of the unremitting struggle being waged by women the world over, Filipinowomen not excluded, to be accepted as equals of men and to tear down the walls of

discrimination that hold them back from their proper places under the sun.

In light of the inexorable sweep of events, local and global, legislative, executive and judicial, according more rights to women hitherto denied them and eliminating whateverpockets of discrimination still exist in their civil, political and social life, can it still be insistedthat widows are not at liberty to choose their domicile upon the death of their husbands butmust retain the same, regardless?

I submit that a widow, like the petitioner and others similarly situated, can no longer bebound by the domicile of the departed husband, if at all she was before. Neither does sheautomatically 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 BarangayOlot, Tolosa, both of which are located in the First District of Leyte, petitioner amplydemonstrated by overt acts, her election of a domicile of choice, in this case, a reversion toher domicile of origin. Added together, the time when she set up her domicile in the twoplaces sufficed to meet the one-year requirement to run as Representative of the FirstDistrict of Leyte.

In view of the foregoing expatiation, I vote to GRANT the petition.

8/10/2019 art. vi- SEC 6-9


VITUG, J., separate opinion:

The case at bench deals with explicit Constitutional mandates.

The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets upideals and directions and render steady our strides hence. It only looks back so as toensure that mistakes in the past are not repeated. A compliant transience of a constitutionbelittles its basic function and weakens its goals. A constitution may well become outdatedby the realities of time. When it does, it must be changed but while it remains, we owe itrespect and allegiance. Anarchy, open or subtle, has never been, nor must it ever be, theanswer to perceived transitory needs, let alone societal attitudes, or the Constitution mightlose its very essence.

Constitutional provisions must be taken to be mandatory in character unless, either byexpress statement or by necessary implication, a different intention is manifest (seeMarcelino vs. Cruz, 121 SCRA 51).

The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of thefundamental law. These provisions read:

Sec. 6. No person shall be a Member of the House of Representatives unlesshe is a natural-born citizen of the Philippines and, on the day of the election,is at least twenty-five years of age, able to read and write, and, except theparty-list representatives, a registered voter in the district in which he shall beelected, and a resident thereof for a period of not less than one yearimmediately preceding the day of the election.

Sec. 17. The Senate and the House of Representatives shall each have an

Electoral Tribunal which shall be the sole judge of all contests relating to theelection, returns, and qualifications of their respective Members. EachElectoral Tribunal shall be composed of nine Members, three of whom shallbe Justices of the Supreme Court to be designated by the Chief Justice, andthe remaining six shall be Members of the Senate or the House ofRepresentatives, as the case may be, who shall be chosen on the basis ofproportional representation from the political parties and the parties ororganizations registered under the party-list system represented therein. Thesenior Justice in the Electoral Tribunal shall be its Chairman.

The Commission on Election (the "COMELEC") is constitutionally bound to enforce andadminister "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 topass upon the qualification and disqualification prescribed by law of candidates to anelective office. Indeed, pre-proclamation controversies are expressly placed under theCOMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3, Constitution).

The matter before us specifically calls for the observance of the constitutional one-yearresidency requirement. The issue (whether or not there is here such compliance), to mymind, is basically a question of fact or at least inextricably linked to such determination. The

8/10/2019 art. vi- SEC 6-9


findings and judgment of the COMELEC, in accordance with the long established rule andsubject only to a number of exceptions under the basic heading of "grave abuse ofdiscretion," are not reviewable by this Court.

I do not find much need to do a complex exercise on what seems to me to be a plain matter.Generally, the term "residence" has a broader connotation that maymean permanent (domicile), official (place where one's official duties may require him tostay) or temporary (the place where he sojourns during a considerable length of time). Forcivil law purposes, i .e., as regards the exercise of civil rights and the fulfillment of civilobligations, 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 bythis 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 synonymousterms, thus: "(t)he term "residence" as used in the election law is synonymouswith "domicile," which imports not only an intention to reside in a fixed place

but also personal presence in that place, coupled with conduct indicative ofsuch intention." "Domicile" denotes a fixed permanent residence to whichwhen absent for business or pleasure, or for like reasons, one intends toreturn. . . . . Residence thus acquired, however, may be lost by adoptinganother choice of domicile. In order, in turn, to acquire a new domicile bychoice, there must concur (1) residence or bodily presence in the newlocality, (2) an intention to remain there, and (3) an intention to abandon theold domicile. In other words, there must basically be animus manendi coupledwith animus non revertendi . The purpose to remain in or at the domicile ofchoice must be for an indefinite period of time; the change of residence mustbe voluntary; and the residence at the place chosen for the new domicilemust be actual.

Using the above tests, I am not convinced that we can charge the COMELEC withhaving committed grave abuse of discretion in its assailed resolution.

The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of the Electoral Tribunal concerned begins. It signifies that the protestee musthave theretofore been duly proclaimed and has since become a "member" of the Senate orthe House of Representatives. The question can be asked on whether or not theproclamation of a candidate is just a ministerial function of the Commission on Electionsdictated solely on the number of votes cast in an election exercise. I believe, it is not. Aministerial 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, istasked with the full responsibility of ascertaining all the facts and conditions such as may berequired by law before a proclamation is properly done.

The Court, on its part, should, in my view at least, refrain from any undue encroachment onthe ultimate exercise of authority by the Electoral Tribunals on matters which, by no lessthan a constitutional fiat, are explicitly within their exclusive domain. The nagging question,if it were otherwise, would be the effect of the Court's peremptory pronouncement on the

8/10/2019 art. vi- SEC 6-9


ability of the Electoral Tribunal to later come up with its own judgment in a contest "relatingto the election, returns and qualification" of its members.

Prescinding from all the foregoing, I should like to next touch base on the applicability to thiscase of Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas PambansaBlg . 881, each providing thusly:

REPUBLIC ACT NO. 6646

xxx xxx xxx

Sec. 6. Effect of Disqualification Case. — Any candidate who has beendeclared by final judgment to be disqualified shall not be voted for, and thevotes cast for him shall not be counted. If for any reason a candidate is notdeclared by final judgment before an election to be disqualified and he isvoted for and receives the winning number of votes in such election, theCourt or Commission shall continue with the trial and hearing of the action,

inquiry or protest and, upon motion of the complainant or any intervenor, mayduring the pendency thereof order the suspension of the proclamation of suchcandidate whenever the evidence of his guilt is strong.

BATAS PAMBANSA BLG. 881

xxx xxx xxx

Sec. 72. Effects of disqualification cases and priority .— The Commission andthe courts shall give priority to cases of disqualification by reason of violationof 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 disqualifiedshall 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, judgmentbefore an election to be disqualified, and he is voted for and receives thewinning number of votes in such election, his violation of the provisions of thepreceding sections shall not prevent his proclamation and assumption tooffice.

I realize that in considering the significance of the law, it may be preferable to look for not somuch 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 castin favor of the disqualified candidate, whenever ultimately declared as such, should not becounted in his or her favor and must accordingly be considered to be stray votes. Theargument, nevertheless, is far outweighed by the rationale of the now prevailing doctrinefirst enunciated in the case of Topacio vs. Paredes (23 Phil. 238 [1912]) which, althoughlater abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santosvs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim caseof Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA 1

8/10/2019 art. vi- SEC 6-9


(1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, mostrecently, Benito (235 SCRA 436 [1994]) rulings. Benito vs. Comelec was a unanimousdecision penned by Justice Kapunan and concurred in by Chief Justice Narvasa, JusticesFeliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno, Vitug andMendoza (Justices Cruz and Bellosillo were on official leave). For easy reference, let mequote from the first Labo decision:

Finally, there is the question of whether or not the private respondent, whofiled the quo warrantopetition, can replace the petitioner as mayor. He cannot.The simple reason is that as he obtained only the second highest number ofvotes in the election, he was obviously not the choice of the people of BaguioCity.

The latest ruling of the Court on this issue is Santos v. Commission onElections, (137 SCRA 740) decided in 1985. In that case, the candidate whoplaced second was proclaimed elected after the votes for his winning rival,who was disqualified as a turncoat and considered a non-candidate, were all

disregard as stray. In effect, the second placer won by default. That decisionwas 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 ., AbadSantos and Melencio-Herrera, JJ .) and another two reserving their vote.(Plana and Gutierrez, Jr., JJ .) One was on official leave. (Fernando, C .J .)

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

. . . it would be extremely repugnant to the basic concept of theconstitutionally guaranteed right to suffrage if a candidate whohas not acquired the majority or plurality of votes is proclaimeda 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 bythose who have received the highest number of votes cast inthe election for that office, and it is a fundamental idea in allrepublican forms of government that no one can be declaredelected and no measure can be declared carried unless he or it

8/10/2019 art. vi- SEC 6-9


receives a majority or plurality of the legal votes cast in theelection. (20 Corpus Juris 2nd, S 243, p. 676.)

The fact that the candidate who obtained the highest number of votes is laterdeclared to be disqualified or not eligible for the office to which he waselected does not necessarily entitle the candidate who obtained the secondhighest number of votes to be declared the winner of the elective office. Thevotes cast for a dead, disqualified, or non-eligible person may not be valid tovote the winner into office or maintain him there. However, in the absence ofa statute which clearly asserts a contrary political and legislative policy on thematter, if the votes were cast in the sincere belief that the candidate wasalive, qualified, or eligible, they should not be treated as stray, void ormeaningless. (at pp. 20-21)

Considering all the foregoing, I am constrained to vote for the dismissal of the petition.

MENDOZA, J., separate opinion:

In my view the issue in this case is whether the Commission on Elections has the power todisqualify candidates on the ground that they lack eligibility for the office to which they seekto be elected. I think that it has none and that the qualifications of candidates may bequestioned only in the event they are elected, by filing a petition for quo warranto or anelection protest in the appropriate forum, not necessarily in the COMELEC but, as in thiscase, in the House of Representatives Electoral Tribunal. That the parties in this case tookpart in the proceedings in the COMELEC is of no moment. Such proceedings wereunauthorized and were not rendered valid by their agreement to submit their dispute to thatbody.

The various election laws will be searched in vain for authorized proceedings fordetermining a candidate's qualifications for an office before his election. There are none inthe 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 otherwords, no provisions for pre-proclamation contests but only election protests or quowarrantoproceedings against winning candidates.

To be sure, there are provisions denominated for "disqualification," but they are notconcerned with a declaration of the ineligibility of a candidate. These provisions areconcerned with the incapacity (due to insanity, incompetence or conviction of an offense) ofa person either to be a candidate or to continue as a candidate for public office. There isalso 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 inthe certificates.

These provisions are found in the following parts of the Omnibus Election Code:

§ 12. Disqualifications. — Any person who has been declared by competentauthority insane or incompetent, or has been sentenced by final judgment forsubversion, insurrection, rebellion or for any offense for which he has been

8/10/2019 art. vi- SEC 6-9


sentenced to a penalty of more than eighteen months or for a crime involvingmoral turpitude, shall be disqualified to be a candidate and to hold any office,unless he has been given plenary pardon or granted amnesty.

The disqualifications to be a candidate herein provided shall be deemedremoved upon the declaration by competent authority that said insanity orincompetence had been removed or after the expiration of a period of fiveyears from his service of sentence, unless within the same period he againbecomes disqualified. (Emphasis added)

§ 68. Disqualifications. — Any candidate who, in an action or protest in whichhe is a party is declared by final decision of a competent court guilty of, orfound by the Commission of having (a) given money or other materialconsideration to influence, induce or corrupt the voters or public officialsperforming electoral functions; (b) committed acts of terrorism to enhance hiscandidacy; (c) spent in his election campaign an amount in excess of thatallowed by this Code; (d) solicited, received or made any contribution

prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any ofSections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph6, shall be disqualified from continuing as a candidate, or if he has beenelected, from holding the office. Any person who is a permanent resident of oran immigrant to a foreign country shall not be qualified to run for any electiveoffice under this Code, unless said person has waived his status aspermanent resident or immigrant of a foreign country in accordance with theresidence requirement provided for in the election laws. (Emphasis added)

§ 78. Petition to deny due course to or cancel a certificate ofcandidacy . — A verified petition seeking to deny due course or to cancel acertificate of candidacy may be filed by any person exclusively on the groundthat any material representation contained therein as required under Section74 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 bedecided, after due notice and hearing, not later than fifteen days before theelection. (Emphasis added)

the Electoral Reforms Law of 1987 (R.A. No. 6646):

§ 6. Effect of Disqualification Case. — Any candidate who has been declaredby final judgment to be disqualified shall not be voted for , and the votes castfor 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 andreceives the winning number of votes in such election, the Court orCommission shall continue with the trial and hearing of the action, inquiry orprotest and; upon motion for the complainant or any intervenor, may duringthe pendency thereof order the suspension of the proclamation of suchcandidate whenever the evidence of his guilt is strong . (Emphasis added).

8/10/2019 art. vi- SEC 6-9


§ 7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy . — The procedure hereinabove provided shall apply to petitions to deny duecourse to or cancel a certificate of candidacy as provided in Section 78 ofBatas Pambansa Blg. 881.

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

§ 40. Disqualifications. — The following persons are disqualified from runningfor any elective local position:

(a) Those sentenced by final judgment for an offense involving moralturpitude or for an offense punishable by one (1) year or more ofimprisonment, within two (2) years after serving sentence;

(b) Those removed from office as a result of on administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to

the Republic;

(d) Those with dual citizenship;

(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired theright to reside abroad and continue to avail of the same right after theeffectivity of this Code; and

(g) The insane or feeble-minded.

The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while entitled"For Cancellation and Disqualification," contained no allegation that private respondentImelda Romualdez-Marcos made material representations in her certificate of candidacywhich were false, it sought her disqualification on the ground that "on the basis of her VoterRegistration Record and Certificate of Candidacy, [she] is disqualified from running for theposition of Representative, considering that on election day, May 8, 1995, [she] would haveresided less than ten (10) months in the district where she is seeking to be elected." For itspart, the COMELEC's Second Division, in its resolution of April 24, 1995, cancelled hercertificate of candidacy and corrected certificate of candidacy on the basis of its finding thatpetitioner is "not qualified to run for the position of Member of the House of Representativesfor the First Legislative District of Leyte" and not because of any finding that she had madefalse representations as to material matters in her certificate of candidacy.

Montejo's petition before the COMELEC was therefore not a petition for cancellation ofcertificate of candidacy under § 78 of the Omnibus Election Code, but essentially a petitionto declare private respondent ineligible. It is important to note this, because, as willpresently be explained, proceedings under § 78 have for their purpose to disqualify aperson from being a candidate, whereas quo warranto proceedings have for their purposeto disqualify a person from holding public office. Jurisdiction over quo warranto proceedings

8/10/2019 art. vi- SEC 6-9


involving members of the House of Representatives is vested in the Electoral Tribunal ofthat body.

Indeed, in the only cases in which this Court dealt with petitions for the cancellation ofcertificates of candidacy, the allegations were that the respondent candidates hadmade false representations in their certificates of candidacy with regard totheir citizenship, 1

age, 2 or residence.

3 But in the generality of cases in which this Court passed upon

the qualifications of respondents for office, this Court did so in the context of election protests 4 or quo

warranto proceedings 5filed after the proclamation of the respondents or protestees as winners.

Three reasons may be cited to explain the absence of an authorized proceeding fordetermining before election the qualifications of a candidate.

First is the fact that unless a candidate wins and is proclaimed elected, there is no necessityfor determining his eligibility for the office. In contrast, whether an individual should bedisqualified as a candidate for acts constituting election offenses (e.g., vote buying, overspending, 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 beingsought. That is why it is provided that if the grounds for disqualification are established, acandidate will not be voted for; if he has been voted for, the votes in his favor will not becounted; and if for some reason he has been voted for and he has won, either he will not beproclaimed or his proclamation will be set aside. 6

Second is the fact that the determination of a candidate's eligibility, e.g., his citizenship or,as in this case, his domicile, may take a long time to make, extending beyond the beginningof 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 residencewas still pending in the COMELEC even after the elections of May 8, 1995. This is contraryto the summary character of proceedings relating to certificates of candidacy. That is why

the law makes the receipt of certificates of candidacy a ministerial duty of the COMELECand its officers. 7

The law is satisfied if candidates state in their certificates of candidacy that they areeligible for the position which they seek to fill, leaving the determination of their qualifications to be madeafter the election and only in the event they are elected. Only in cases involving charges of falserepresentations made in certificates of candidacy is the COMELEC given jurisdiction.

Third is the policy underlying the prohibition against pre-proclamation cases in elections forPresident, 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 ofRepresentatives Electoral Tribunal and the other Tribunals as "sole judges" under theConstitution of the election, returns and qualifications of members of Congress or of thePresident and Vice President, as the case may be.

By providing in § 253 for the remedy of quo warranto for determining an elected official'squalifications after the results of elections are proclaimed, while being conspicuously silentabout 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 thequalifications of candidates unless they have been elected.

8/10/2019 art. vi- SEC 6-9


Apparently realizing the lack of an authorized proceeding for declaring the ineligibility ofcandidates, the COMELEC amended its rules on February 15, 1993 so as to provide inRule 25, § 1 the following:

Grounds for disqualification. — Any candidate who does not possess all thequalifications of a candidate as provided for by the Constitution or by existinglaw or who commits any act declared by law to be grounds for disqualificationmay be disqualified from continuing as a candidate.

The lack of provision for declaring the ineligibility of candidates, however, cannot besupplied by a mere rule. Such an act is equivalent to the creation of a cause of action whichis 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 withholdsfrom the COMELEC even the power to decide cases involving the right to vote, whichessentially involves an inquiry into qualifications based on age, residence and citizenship ofvoters. (Art. IX, C, § 2(3))

The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into groundsfor disqualification is contrary to the evident intention of the law. For not only in theirgrounds but also in their consequences are proceedings for "disqualification" different fromthose for a declaration of "ineligibility." "Disqualification" proceedings, as already stated, arebased on grounds specified in §§ 12 and 68 of the Omnibus Election Code and in § 40 ofthe Local Government Code and are for the purpose of barring an individual from becominga candidate or from continuing as a candidate for public office. In a word, their purpose isto 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 theConstitution or the statutes for holding public office and the purpose of the proceedings fordeclaration of ineligibility is to remove the incumbent from office.

Consequently, that an individual possesses the qualifications for a public office does notimply that he is not disqualified from becoming a candidate or continuing as a candidate fora 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 notimply that he does not suffer from any of disqualifications provided in § 4.

Indeed, provisions for disqualifications on the ground that the candidate is guilty ofprohibited election practices or offenses, like other pre-proclamation remedies, are aimed atthe detestable practice of "grabbing the proclamation and prolonging the electionprotest," 8

through the use of "manufactured" election returns or resort to other trickery for the purpose of

altering the results of the election. This rationale does not apply to cases for determining a candidate's

qualifications for office before the election. To the contrary, it is the candidate against whom a proceedingfor disqualification is brought who could be prejudiced because he could be prevented from assumingoffice even though in end he prevails.

To summarize, the declaration of ineligibility of a candidate may only be sought in anelection protest or action for quo warranto filed pursuant to § 253 of the Omnibus ElectionCode within 10 days after his proclamation. With respect to elective local officials (e.g.,Governor, Vice Governor, members of the Sangguniang Panlalawigan, etc.) such petitionmust be filed either with the COMELEC, the Regional Trial Courts, or Municipal Trial Courts,

8/10/2019 art. vi- SEC 6-9


as provided in Art. IX, C, § 2(2) of the Constitution. In the case of the President and VicePresident, the petition must be filed with the Presidential Electoral Tribunal (Art. VII, § 4, lastparagraph), and in the case of the Senators, with the Senate Electoral Tribunal, and in thecase 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 disqualificationproceedings based on alleged ineligibility in the case of candidates for President, VicePresident, Senators and members of the House of Representatives, because of the samepolicy prohibiting the filing of pre-proclamation cases against such candidates.

For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA No.95-009; that its proceedings in that case, including its questioned orders, are void; and thatthe eligibility of petitioner Imelda Romualdez-Marcos for the office of Representative of theFirst 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 doted April 24, 1995, May 7,1995, May 11, 1995 and May 25, 1995, declaring petitioner Imelda Romualdez-Marcos

ineligible and ordering her proclamation as Representative of the First District of Leytesuspended. To the extent that Rule 25 of the COMELEC Rules of Procedure authorizesproceedings for the disqualification of candidates on the ground of ineligibility for the office,it should considered void.

The provincial board of canvassers should now proceed with the proclamation of petitioner.

Narvasa, C.J., concurs.

PADILLA, J., dissenting:

I regret that I cannot join the majority opinion as expressed in the well-written ponencia ofMr. Justice Kapunan.

As in any controversy arising out of a Constitutional provision, the inquiry must begin andend with the provision itself. The controversy should not be blurred by what, to me, areacademic disquisitions. In this particular controversy, the Constitutional provision on pointstates that — "no person shall be a member of the House of Representatives unless he is anatural-born citizen of the Philippines, and on the day of the election, is at least twenty-five(25) years of age, able to read and write, and except the party list representatives, aregistered voter in the district in which he shall be elected, and a resident thereof for a

period of not less than one year immediately preceding the day of the election." (Article VI,section 6)

It has been argued that for purposes of our election laws, the term residence has beenunderstood as synonymous with domicile. This argument has been validated by no lessthan the Court in numerous cases 1

where significantly the factual circumstances clearly andconvincingly proved that a person does not effectively lose his domicile of origin if the intention to residetherein is manifest with his personal presence in the place, coupled with conduct indicative of suchintention.

8/10/2019 art. vi- SEC 6-9


With this basic thesis in mind, it would not be difficult to conceive of different modalitieswithin which the phrase "a resident thereof (meaning, the legislative district) for a period ofnot less than one year" would fit.

The first instance is where a person's residence and domicile coincide in which case aperson only has to prove that he has been domiciled in a permanent location for not lessthan a year before the election.

A second situation is where a person maintains a residence apart from his domicile in whichcase he would have the luxury of district shopping, provided of course, he satisfies the one-year residence period in the district as the minimum period for eligibility to the position ofcongressional representative for the district.

In either case, one would not be constitutionally disqualified for abandoning his residence inorder to return to his domicile of origin, or better still, domicile of choice; neither would onebe disqualified for abandoning altogether his domicile in favor of his residence in the districtwhere he desires to be a candidate.

The most extreme circumstance would be a situation wherein a person maintains severalresidences in different districts. Since his domicile of origin continues as an option as longas there is no effective abandonment (animus non revertendi ), he can practically choose thedistrict most advantageous for him.

All these theoretical scenarios, however, are tempered by the unambiguous limitationthat "for a period of not less than one year immediately preceding the day of the election" ,he must be a resident in the district where he desires to be elected.

To my mind, the one year residence period is crucial regardless of whether or not the term

"residence" is to be synonymous with "domicile." In other words, the candidate's intent andactual presence in one district must in all situations satisfy the length of time prescribed bythe fundamental law. And this, because of a definite Constitutional purpose. He must befamiliar with the environment and problems of a district he intends to represent in Congressand the one-year residence in said district would be the minimum period to acquire suchfamiliarity, if not versatility.

In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in thenow assailed decision of the Comelec 2nd Division dated 24 April 1995 (as affirmed by theComelec en banc ) —

In or about 1938 when respondent was a little over 8 years old, she

established her domicile in Tacloban, Leyte (Tacloban City). She studied inthe Holy Infant Academy in Tacloban from 1938 to 1948 when she graduatedfrom high school. She pursued her college studies in St. Paul's College, nowDivine Word University of Tacloban, where she earned her degree inEducation. Thereafter, she taught in the Leyte Chinese High School, still inTacloban City. In 1952 she went to Manila to work with her cousin, the lateSpeaker Daniel Z. Romualdez in his office in the House of Representatives.In 1954, she married ex-president Ferdinand Marcos when he was still a

8/10/2019 art. vi- SEC 6-9


congressman of Ilocos Norte. She lived with him in Batac, Ilocos Norte andregistered there as a voter. When her husband was elected Senator of theRepublic in 1959, she and her husband lived together in San Juan, Rizalwhere she registered as a voter. In 1965 when her husband was electedPresident of the Republic of the Philippines, she lived with him in MalacanangPalace and registered as a voter in San Miguel, Manila.

During the Marcos presidency, respondent served as a Member of theBatasang Pambansa, Minister of Human Settlements and Governor of MetroManila. She claimed that in February 1986, she and her family were abductedand kidnapped to Honolulu, Hawaii. In November 1991, she came home toManila. In 1992 respondent ran for election as President of the Philippinesand filed her Certificate of Candidacy wherein she indicated that she is aresident and registered voter of San Juan, Metro Manila. On August 24, 1994,respondent filed a letter with the election officer of San Juan, Metro Manila,requesting for cancellation of her registration in the Permanent List of Votersin Precinct No. 157 of San Juan, Metro Manila, in order that she may be re-

registered or transferred to Brgy. Olot, Tolosa, Leyte. (Annex 2-B, Answer).On August 31, 1994, respondent filed her Sworn Application for Cancellationof Voter's Previous Registration (Annex 2-C, Answer) stating that she is aduly registered voter in 157-A, Brgy. Maytunas, San Juan, Metro that sheintends to register at Brgy. Olot, Tolosa, Leyte.

On January 28, 1995 respondent registered as a voter at Precinct No. 18-A ofOlot, Tolosa, Leyte. She filed with the Board of Election Inspectors CE FormNo. 1, Voter Registration Record No. 94-3349772, wherein she alleged thatshe has resided in the municipality of Tolosa for a period of 6 months (Annex

A, Petition).

On March 8, 1995, respondent filed with the Office of the Provincial ElectionSupervisor, Leyte, a Certificate of Candidacy for the position ofRepresentative of the First District of Leyte wherein she also alleged that shehas been a resident in the constituency where she seeks to be elected for aperiod of 7 months. The pertinent entries therein are as follows:

7. PROFESSION OR OCCUPATION: House-wife/ Teacher/ Social Worker

8. RESIDENCE (complete address): Brgy. Olot,Tolosa, Leyte

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

9. RESIDENCE IN THE CONSTITUENCYWHEREIN I SEEK TO BE ELECTEDIMMEDIATELY PRECEDING ELECTION:

________ Years SevenMonths

8/10/2019 art. vi- SEC 6-9


10. I AM NOT A PERMANENT RESIDENT OF,OR IMMIGRANT TO, A FOREIGN COUNTRY.

THAT I AM ELIGIBLE for said office; That I will support and defend theConstitution of the Republic of the Philippines and will maintain true faith andallegiance thereto; That I will obey the laws, legal orders and decreespromulgated by the duly-constituted authorities; That the obligation imposedby my oath is assumed voluntarily, without mental reservation or purpose ofevasion; and That the facts stated herein are true to the best of myknowledge.

(Sgd.) ImeldaRomualdez-Marcos

(Signature ofCandidate) 2

Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the decisive

component or seed of her disqualification. It is contained in her answer under oath of"seven months" to the query of "residence in the constituency wherein I seek to be electedimmediately preceding the election."

It follows from all the above that the Comelec committed no grave abuse of discretion inholding that petitioner is disqualified from the position of representative for the 1stcongressional district of Leyte in the elections of8 May 1995, for failure to meet the "not less than one-year residence in the constituency(1st district, Leyte) immediately preceding the day of election(8 May 1995)."

Having arrived at petitioner's disqualification to be a representative of the first district ofLeyte, the next important issue to resolve is whether or not the Comelec can order theBoard of Canvassers to determine and proclaim the winner out of the remainingqualified candidates for representative in said district.

I am not unaware of the pronouncement made by this Court in the case of Labovs. Comelec , G.R. 86564, August 1, 1989, 176 SCRA 1 which gave the rationale as laiddown in the early 1912 case of Topacio vs. Paredes, 23 Phil. 238 that:

. . . . Sound policy dictates that public elective offices are filled by those whohave 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 heor it receives a majority or plurality of the legal votes cast in the election. (20Corpus Juris 2nd, S 243, p. 676)

The fact that the candidate who obtained the highest number of votes is laterdeclared to be disqualified or not eligible for the office to which he waselected does not necessarily entitle the candidate who obtained the secondhighest number of votes to be declared the winner of the elective office. The

8/10/2019 art. vi- SEC 6-9


votes cast for a dead, disqualified, or non-eligible person may not be valid tovote the winner into office or maintain him there. However, in the absence ofa statute which clearly asserts a contrary political and legislative policy on thematter, if the votes were cast in the sincere belief that the candidate wasalive, qualified, or eligible, they should not be treated as stray, void ormeaningless.

Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System andfor other purposes) (84 O.G. 905, 22 February 1988) it is provided that:

. . . — Any candidate who has been declared by final judgment to bedisqualified shall not be voted for, and the votes cast for him shall not becounted. If for any reason a candidate is not declared by final judgmentbefore an election to be disqualified and he is voted for and receives thewinning number of votes in such election, the Court or Commission shallcontinue with the trial and hearing of the action, inquiry or protest and, uponmotion of the complainant or any intervenor, may, during the pendency

thereof order the suspension of the proclamation of such candidate wheneverthe evidence of his guilt is strong.

There is no need to indulge in legal hermeneutics to sense the plain and unambiguousmeaning of the provision quoted above. As the law now stands, the legislative policy doesnot limit its concern with the effect of a final judgement of disqualification only before theelection, but even during or after the election. The law is clear that in all situations, the votescast for a disqualified candidate SHALL NOT BE COUNTED. The law has also validated the

jurisdiction of the Court or Commission on Election to continue hearing the petition fordisqualification in case a candidate is voted for and receives the highest number of votes, iffor any reason, he is not declared by final judgment before an election to be disqualified .

Since the present case is an after election scenario, the power to suspend proclamation(when evidence of his guilt is strong) is also explicit under the law. What happens thenwhen 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 numberof votes.

It stands to reason that Section 6 of RA 6646 does not make the second placer the winnersimply because a "winning candidate is disqualified," but that the law considers him as thecandidate who had obtained the highest number of votes as a result of the votes cast for thedisqualified candidate not being counted or considered.

As this law clearly reflects the legislative policy on the matter, then there is no reason whythis Court should not re-examine and consequently abandon the doctrine in the Jun Labocase. It has been stated that "the qualifications prescribed for elective office cannot beerased by the electorate alone. The will of the people as expressed through the ballotcannot cure the vice of ineligibility" most especially when it is mandated by no less than theConstitution.

8/10/2019 art. vi- SEC 6-9


ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board ofCanvassers of Leyte to proclaim the candidate receiving the highest number of votes, fromamong the qualified candidates, as the duly elected representative of the 1st district ofLeyte.

Hermosisima, Jr. J., dissent.

REGALADO, J., dissenting:

While I agree with same of the factual bases of the majority opinion, I cannot arriveconjointly at the same conclusion drawn therefrom Hence, this dissent which assuredly isnot formulated "on the basis of the personality of a petitioner in a case."

I go along with the majority in their narration of antecedent facts, insofar as the same arepertinent to this case, and which I have simplified as follows:

1. Petitioner, although born in Manila, resided during her childhood in the

present Tacloban City, she being a legitimate daughter of parents whoappear to have taken up permanent residence therein. She also went toschool there and, for a time, taught in one of the schools in that city.

2. When she married then Rep. Ferdinand E. Marcos who was then domiciledin Batac, Ilocos Norte, by operation of law she acquired a new domicile in thatplace in 1954.

3. In the successive years and during the events that happened thereafter,her husband having been elected as a Senator and then as President, shelived with him and their family in San Juan, Rizal and then in Malacanang

Palace in San Miguel, Manila.

4. Over those years, she registered as a voter and actually voted in Batac,Ilocos Norte, then in San Juan, Rizal, and also in San Miguel, Manila, allthese merely in the exercise of the right of suffrage.

5. It does not appear that her husband, even after he had assumed thoselofty positions successively, ever abandoned his domicile of origin in Batac,Ilocos Norte where he maintained his residence and invariably voted in allelections.

6. After the ouster of her husband from the presidency in 1986 and thesojourn of the Marcos family in Honolulu, Hawaii, U.S.A., she eventuallyreturned to the Philippines in 1991 and resided in different places which sheclaimed to have been merely temporary residences.

7. In 1992, petitioner ran for election as President of the Philippines and inher certificate of candidacy she indicated that she was then a registered voterand resident of San Juan, Metro Manila.

8/10/2019 art. vi- SEC 6-9


8. On August 24, 1994, she filed a letter for the cancellation of her registrationin the Permanent List of Voters in Precinct No. 157 of San Juan, Metro Manilain order that she may "be re-registered or transferred to Brgy. Olot, Tolosa,Leyte." On August 31, 1994, she followed this up with her Sworn Applicationfor Cancellation of Voter's Previous Registration wherein she stated that shewas a registered voter in Precinct No. 157-A, Brgy. Maytunas, San Juan,Metro Manila and that she intended to register in Brgy. Olot, Tolosa, Leyte.

9. On January 28, 1995, petitioner registered as a voter at Precinct No. 18-Aof Olot, Tolosa, Leyte, for which purpose she filed with the therein Board ofElection Inspectors a voter's registration record form alleging that she hadresided in that municipality for six months.

10. On March 8, 1995, petitioner filed her certificate of candidacy for theposition of Representative of the First District of Leyte wherein she allegedthat she had been a resident for "Seven Months" of the constituency whereshe sought to be elected.

11. On March 29, 1995, she filed an "Amended/Corrected Certificate ofCandidacy" wherein her answer in the original certificate of candidacy to item"8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK, TO BEELECTED IMMEDIATELY PRECEDING THE ELECTION:" was changed orreplaced with a new entry reading "SINCE CHILDHOOD."

The sole issue for resolution is whether, for purposes of her candidacy, petitioner hadcomplied with the residency requirement of one year as mandated by no less than Section6, Article VI of the 1987 Constitution.

I do not intend to impose upon the time of my colleagues with a dissertation on thedifference between residence and domicile. We have had enough of that and I understandthat for purposes of political law and, for that matter of international law, residence isunderstood to be synonymous with domicile. That is so understood in our jurisprudence andin American Law, in contradistinction to the concept of residence for purposes of civil,commercial and procedural laws whenever an issue thereon is relevant or controlling.

Consequently, since in the present case the question of petitioner's residence is integratedin and inseparable from her domicile, I am addressing the issue from the standpoint of theconcept of the latter term, specifically its permutations into the domicile of origin, domicile ofchoice and domicile by operation of law, as understood in American law from which for thiscase we have taken our jurisprudential bearings.

My readings inform me that the domicile of the parents at the time of birth, or what is termedthe "domicile of origin," constitutes the domicile of an infant until abandoned, or until theacquisition of a new domicile in a different place. 1

In the instant case, we may grant thatpetitioner's domicile of origin,

2 at least as of 1938, was what is now Tacloban City.

Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile bybirth, domicile by choice, and domicile by operation of law. The first is the common case of

8/10/2019 art. vi- SEC 6-9


the place of birth or domicilium originis, the second is that which is voluntarily acquired by aparty or domicilium propio motu; the last which is consequential, as that of a wife arisingfrom marriage, 3

is sometimes called domicilium necesarium. There is no debate that the domicile of

origin can be lost or replaced by a domicile of choice or a domicile by operation of law subsequentlyacquired by the party.

When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law,not only international or American but of our own enactment, 4

she acquired her husband'sdomicile of origin in Batac, Ilocos Norte and correspondingly lost her own domicile of origin in TaclobanCity.

Her subsequent changes of residence — to San Juan, Rizal, then to San Miguel, Manila,thereafter to Honolulu, Hawaii, and back to now San Juan, Metro Manila — do not appear tohave resulted in her thereby acquiring new domiciles of choice. In fact, it appears that herhaving resided in those places was by reason of the fortunes or misfortunes of her husbandand his peregrinations in the assumption of new official positions or the loss of them. Herresidence in Honolulu and, of course, those after her return to the Philippines were, as sheclaimed, against her will or only for transient purposes which could not have invested themwith the status of domiciles of choice. 5

After petitioner's return to the Philippines in 1991 and up to the present imbroglio over herrequisite residency in Tacloban City or Olot, Tolosa, Leyte, there is no showing that sheever attempted to acquire any other domicile of choice which could have resulted in theabandonment of her legal domicile in Batac, Ilocos Norte. On that score, we note themajority's own submission 6

that, to successfully effect a change of domicile, one must demonstrate(a) an actual removal or an actual change of domicile, (b) a bona fide intention of abandoning the formerplace of residence and establishing a new one, and (c) acts which correspond with the purpose.

We consequently have to also note that these requirements for the acquisition of a domicile

of choice apply whether what is sought to be changed or substituted is a domicile of origin(domicilium originis) or a domicile by operation of law (domicilium necesarium). Sincepetitioner had lost her domicilium originis which had been replaced by her domiciliumnecesarium, it is therefore her continuing domicile in Batac, Ilocos Norte which, if at all, canbe the object of legal change under the contingencies of the case at bar.

To get out of this quandary, the majority decision echoes the dissenting opinion ofCommissioner Regalado E. Maambong in SPA 95-009 of the Commission onElections, 7 and advances this novel proposition.

It may be said that petitioner lost her domicile of origin by operation of law asa result of her marriage to the late President Ferdinand E. Marcos in 1952

(sic , 1954). By operation of law (domicilium necesarium), her legal domicile atthe time of her marriage became Batac, Ilocos Norte although there were noindications of an intention on her part to abandon her domicile of origin.Because of her husband's subsequent death and through the operation of theprovisions of the New Family Code already in force at the time, however, herlegal domicile automatically reverted to her domicile of origin. . . . (Emphasissupplied).

8/10/2019 art. vi- SEC 6-9


Firstly, I am puzzled why although it is conceded that petitioner had acquired a domiciliumnecesarium in Batac, Ilocos Norte, the majority insists on making a qualification that she didnot intend to abandon her domicile of origin. I find this bewildering since, in this situation, itis the law that declares where petitioner's domicile is at any given time, and not her self-serving or putative intent to hold on to her former domicile. Otherwise, contrary to their ownadmission that one cannot have more than one domicile at a time, 8

the majority would besuggesting that petitioner retained Tacloban City as (for lack of a term in law since it does not existtherein) the equivalent of what is fancied as a reserved, dormant, potential, or residual domicile.

Secondly, domicile once lost in accordance with law can only be recovered likewise inaccordance with law. However, we are here being titillated with the possibility of anautomatic reversion to or reacquisition of a domicile of origin after the termination of thecause for its loss by operation of law. The majority agrees that since petitioner lost herdomicile of origin by her marriage, the termination of the marriage also terminates that effectthereof. 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 eitherthe logic or the validity of this argument.

If a party loses his domicile of origin by obtaining a new domicile of choice, hethereby voluntarily abandons the former in favor of the latter. If, thereafter, he abandons thatchosen domicile, he does not per se recover his original domicile unless, by subsequentacts legally indicative thereof, he evinces his intent and desire to establish the same as hisnew domicile, which is precisely what petitioner belatedly and, evidently just for purposes ofher candidacy, unsuccessfully tried to do.

One's subsequent abandonment of his domicile of choice cannot automatically restore hisdomicile of origin, not only because there is no legal authority therefor but because it wouldbe absurd Pursued to its logical consequence, that theory of ipso jure reversion would ruleout 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 obviouslyfor this reason, the Family Code, which the majority inexplicably invokes, advisedly does notregulate this contingency since it would impinge on one's freedom of choice.

Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice(unless we assume that she entered into the marital state against her will) but, on top ofthat, such abandonment was further affirmed through her acquisition of a new domicileby operation of law . In fact, this is even a case of both voluntary and legal abandonment of adomicile of origin. With much more reason, therefore, should we reject the proposition thatwith the termination of her marriage in 1989, petitioner had supposedly per se and ipsofacto 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 inpossession and enjoyment of a domicile of origin which was only in a state of suspendedanimation.

Thus, the American rule is likewise to the effect that while after the husband's death the wifehas the right to elect her own domicile, 9

she nevertheless retains the last domicile of her deceasedhusband until she makes an actual change.

10 In the absence of affirmative evidence, to the contrary, the

presumption is that a wife's domicile or legal residence follows that of her husband and will continue afterhis death.

11

8/10/2019 art. vi- SEC 6-9


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 thisnew code, the right and power to fix the family domicile is now shared by the spouses. Icannot perceive how that joint right, which in the first place was never exercised by thespouses, could affect the domicile fixed by the law for petitioner in 1954 and, for herhusband, long prior thereto. It is true that a wife now has the coordinate power to determinethe conjugal or family domicile, but that has no bearing on this case. With the death of herhusband, and each of her children having gotten married and established their ownrespective domiciles, the exercise of that joint power was and is no longer called for ormaterial in the present factual setting of this controversy. Instead, what is of concern inpetitioner's case was the matter of her having acquired or not her own domicile of choice.

I agree with the majority's discourse on the virtues of the growing and expandedparticipation of women in the affairs of the nation, with equal rights and recognition byConstitution and statutory conferment. However, I have searched in vain for a specific lawor judicial pronouncement which either expressly or by necessary implication supports themajority's desired theory of automatic reacquisition of or reversion to the domicilium

originis of petitioner. Definitely, as between the settled and desirable legal norms thatshould govern this issue, there is a world of difference; and, unquestionably, this should beresolved by legislative articulation but not by the eloquence of the well-turned phrase.

In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and nothaving automatically reacquired any domicile therein, she cannot legally claim that herresidency in the political constituency of which it is a part continued since her birth up to thepresent. Respondent commission was, therefore, correct in rejecting her pretension to thateffect in her amended/corrected certificate of candidacy, and in holding her to her admissionin the original certificate that she had actually resided in that constituency for only sevenmonths prior to the election. These considerations render it unnecessary to further passupon the procedural issues raised by petitioner.

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

DAVIDE, JR., J., dissenting:

I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M.Kapunan, more particularly on the issue of the petitioner's qualification.

Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or rulings ofthe COMELEC may be brought to this Court only by the special civil actionfor certiorari under Rule 65 of the Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251

[1979]; Dario vs. Mison, 176 SCRA 84 [1989]).

Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without or inexcess of jurisdiction or with grave abuse of discretion (Section 1, Rule 65, Rules of Court).Since the COMELEC has, undoubtedly, jurisdiction over the private respondent's petition,the only issue left is whether it acted with grave abuse of discretion in disqualifying thepetitioner.

8/10/2019 art. vi- SEC 6-9


My careful and meticulous perusal of the challenged resolution of 24 April 1995 of theCOMELEC Second Division and the En Banc resolution of 7 May 1995 discloses totalabsence of abuse of discretion, much less grave abuse thereof. The resolution of theSecond Division dispassionately and objectively discussed in minute details the facts whichestablished beyond cavil that herein petitioner was disqualified as a candidate on theground of lack of residence in the First Congressional District of Leyte. It has notmisapplied, miscomprehended, or misunderstood facts or circumstances of substancepertinent to the issue of her residence.

The majority opinion, however, overturned the COMELEC's findings of fact for lack of proofthat the petitioner has abandoned Tolosa as her domicile of origin, which is allegedly withinthe First Congressional District of Leyte.

I respectfully submit that the petitioner herself has provided the COMELEC, either byadmission or by documentary evidence, overwhelming proof of the loss or abandonment ofher domicile of origin, which is Tacloban City and not Tolosa, Leyte. Assuming that shedecided 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 FirstCongressional District of Leyte. A holding to the contrary would be arbitrary.

It may indeed be conceded that the petitioner's domicile of choice was either Tacloban Cityor Tolosa, Leyte. Nevertheless, she lost it by operation of law sometime in May 1954 uponher marriage to the then Congressman (later, President) Ferdinand E. Marcos. A domicileby operation of law is that domicile which the law attributes to a person, independently of hisown intention or actual residence, as results from legal domestic relations as that of the wifearising from marriage (28 C.J.S. Domicile § 7, 11). Under the governing law then, Article110 of the Civil Code, her new domicile or her domicile of choice was the domicile of herhusband, which was Batac, Ilocos Norte. Said Article reads as follows:

Art. 110. The husband shall fix the residence of the family. But the court mayexempt the wife from living with the husband if he should live abroad unlessin the service of the Republic.

Commenting thereon, civilist Arturo M. Tolentino states:

Although the duty of the spouses to live together is mutual, the husband hasa predominant right because he is empowered by law to fix the familyresidence. This right even predominates over some rights recognized by lawin the wife. For instance, under article 117 the wife may engage in business

or practice a profession or occupation. But because of the power of thehusband to fix the family domicilehe may fix it at such a place as would makeit impossible for the wife to continue in business or in her profession. For

justifiable reasons, however, the wife may be exempted from living in theresidence chosen by the husband. The husband cannot validly allegedesertion by the wife who refuses to follow him to a new place of residence,when it appears that they have lived for years in a suitable home belonging tothe wife, and that his choice of a different home is not made in good faith.

8/10/2019 art. vi- SEC 6-9


(Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 1,1985 ed., 339).

Under common law, a woman upon her marriage loses her own domicile and, by operationof law, acquires that of her husband, no matter where the wife actually lives or what shebelieves or intends. Her domicile is fixed in the sense that it is declared to be the same ashis, and subject to certain limitations, he can change her domicile by changing his own (25

Am Jur 2d Domicile § 48, 37).

It must, however, be pointed out that under Article 69 of the Family Code, the fixing of thefamily domicile is no longer the sole prerogative of the husband, but is now a joint decisionof the spouses, and in case of disagreement the court shall decide. The said article usesthe term "family domicile," and not family residence, as "the spouses may have multipleresidences, and the wife may elect to remain in one of such residences, which may destroythe duty of the spouses to live together and its corresponding benefits" (ALICIA V. SEMPIO-DIY, Handbook on the Family Code of the Philippines, [1988], 102).

The theory of automatic restoration of a woman's domicile of origin upon the death of herhusband, which the majority opinion adopts to overcome the legal effect of the petitioner'smarriage on her domicile, is unsupported by law and by jurisprudence. The settled doctrineis that after the husband's death the wife has a right to elect her own domicile, but sheretains 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 herown domicile is revived, but until she exercises the power her domicile remains that of thehusband at the time of his death (25 Am Jur 2d Domicile § 62, 45). Note that what is revivedis not her domicile of origin but her power to acquire her own domicile.

Clearly, even after the death of her husband, the petitioner's domicile was that of her

husband at the time of his death — which was Batac, Ilocos Norte, since their residences inSan Juan, Metro Manila, and San Miguel, Manila, were their residences for convenience toenable her husband to effectively perform his official duties. Their residence in San Juanwas a conjugal home, and it was there to which she returned in 1991 when she was alreadya widow. In her sworn certificate of candidacy for the Office of the President in thesynchronized elections of May 1992, she indicated therein that she was a resident of SanJuan, Metro Manila. She also voted in the said elections in that place.

On the basis of her evidence, it was only on 24 August 1994 when she exercised her rightas a widow to acquire her own domicile in Tolosa, Leyte, through her sworn statementrequesting the Election Officer of San Juan, Metro Manila, to cancel her registration in thepermanent list of voters in Precinct 157 thereat and praying that she be "re-registered or

transferred to Brgy. Olot, Tolosa, Leyte, the place of [her] birth and permanent residence"(photocopy of Exhibit "B," attached as Annex "2" of private respondent Montejo'sComment). Notably, she contradicted this sworn statement regarding her place of birthwhen, in her Voter's Affidavit sworn to on 15 March 1992 (photocopy of Exhibit "C,"attached as Annex "3," Id .), her Voter Registration Record sworn to on 28 January 1995(photocopy of Exhibit "E," attached as Annex "5," Id .), and her Certificate of Candidacysworn to on 8 March 1995 (photocopy of Exhibit "A," attached as Annex "1," Id .), shesolemnly declared that she was born in Manila.

8/10/2019 art. vi- SEC 6-9


The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa,Leyte? In the affidavit attached to her Answer to the petition for disqualification (Annex "I" ofPetition), she declared under oath that her "domicile or residence is Tacloban City." If shedid intend to return to such domicile or residence of origin why did she inform the ElectionOfficer of San Juan that she would transfer to Olot, Tolosa, Leyte, and indicate in herVoter's Registration Record and in her certificate of candidacy that her residence is Olot,Tolosa, Leyte? While this uncertainty is not important insofar as residence in thecongressional district is concerned, it nevertheless proves that forty-one years had alreadylapsed since she had lost or abandoned her domicile of origin by virtue of marriage and thatsuch length of time diminished her power of recollection or blurred her memory.

I find to be misplaced the reliance by the majority opinion on Faypon vs. Quirino (96 Phil.294 [1954]), and the subsequent cases which established the principle that absence fromoriginal residence or domicile of origin to pursue studies, practice one's profession, orengage in business in other states does not constitute loss of such residence or domicile.So is the reliance on Section 117 of the Omnibus Election Code which provides that transferof 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; orconfinement or detention in government institutions in accordance with law" is not deemedas loss of original residence. Those cases and legal provision do not include marriage of awoman. The reason for the exclusion is, of course, Article 110 of the Civil Code. If it werethe intention of this Court or of the legislature to consider the marriage of a woman as acircumstance which would not operate as an abandonment of domicile (of origin or ofchoice), then such cases and legal provision should have expressly mentioned the same.

This Court should not accept as gospel truth the self-serving claim of the petitioner in heraffidavit (Annex "A" of her Answer in COMELEC SPA No. 95-009; Annex "I" of Petition) thather "domicile or residence of origin is Tacloban City," and that she "never intended toabandon this domicile or residence of origin to which [she] always intended to returnwhenever absent." Such a claim of intention cannot prevail over the effect of Article 110 ofthe Civil Code. Besides, the facts and circumstances or the vicissitudes of the petitioner'slife after her marriage in 1954 conclusively establish that she had indeed abandoned herdomicile of origin and had acquired a new one animo et facto (KOSSUTH KENT KENNAN,

A Treatise on Residence and Domicile, [1934], 214, 326).

Neither should this Court place complete trust on the petitioner's claim that she "merelycommitted an honest mistake" in writing down the word "seven" in the space provided forthe 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 wasthe truth.

The majority opinion also disregards a basic rule in evidence that he who asserts a fact orthe 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 couldnot deny the legal consequence thereof on the change of her domicile to that of her

8/10/2019 art. vi- SEC 6-9


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 automaticallybecame Batac, Ilocos Norte." That conclusion is consistent with Article 110 of the CivilCode. Since she is presumed to retain her deceased husband's domicile until she exercisesher revived power to acquire her own domicile, the burden is upon her to prove that she hasexercised her right to acquire her own domicile. She miserably failed to discharge thatburden.

I vote to deny the petition.

Separate Opinions

PUNO, J., concurring:

It was Aristotle who taught mankind that things that are alike should be treated alike, whilethings that are unalike should be treated unalike in proportion to their unalikeness. 1

Like

other candidates, petitioner has clearly met the residence requirement provided by Section 6, Article VI of

the Constitution. 2

We cannot disqualify her and treat her unalike, for the Constitution guarantees equalprotection of the law. I proceed from the following factual and legal propositions:

First. There is no question that petitioner's original domicile is in Tacloban, Leyte. Herparents were domiciled in Tacloban. Their ancestral house is in Tacloban. They have vastreal estate in the place. Petitioner went to school and thereafter worked there. I considerTacloban as her initial domicile, both her domicile of origin and her domicile of choice. Herdomicile of origin as it was the domicile of her parents when she was a minor; and herdomicile of choice, as she continued living there even after reaching the age of majority.

Second. There is also no question that in May, 1954, petitioner married the late PresidentFerdinand E. Marcos. By contracting marriage, her domicile became subject to change by

law, and the right to change it was given by Article 110 of the Civil Code provides:

Art. 110. The husband shall fix the residence of the family . But the court mayexempt the wife from living with the husband if he should live abroad unlessin the service of the Republic. 3

(Emphasis supplied)

In De la Viña v . Villareal and Geopano, 4 this Court explained why the domicile of the wife

ought to follow that of the husband. We held: "The reason is founded upon the theoreticidentity of person and interest between the husband and the wife, and the presumption that, fromthe nature of the relation, the home of one is the home of the other. It is intended to promote,strengthen, and secure their interests in this relation, as it ordinarily exists, where union andharmony prevail."

5 In accord with this objective, Article 109 of the Civil Code also obligated the

husband and wife "to live together."

Third. The difficult issues start as we determine whether petitioner's marriage to formerPresident Marcos ipso factoresulted in the loss of her Tacloban domicile. I respectfullysubmit 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 thefamily. In the exercise of the right, the husband may explicitly choose the prior domicile ofhis wife, in which case, the wife's domicile remains unchanged. The husband can

8/10/2019 art. vi- SEC 6-9


also implicitly acquiesce to his wife's prior domicile even if it is different. So we held in de laViña, 6

. . . . When married women as well as children subject to parental authoritylive, with the acquiescence of their husbands or fathers, in a place distinctfrom where the latter live, they have their ownindependent domicile. . . .

It is not, therefore, the mere fact of marriage but the deliberate choice of a differentdomicile by the husband that will change the domicile of a wife from what it was priorto their marriage. The domiciliary decision made by the husband in the exercise ofthe right conferred by Article 110 of the Civil Code binds the wife. Any and all acts ofa wife during her coverture contrary to the domiciliary choice of the husband cannotchange in any way the domicile legally fixed by the husband. These acts are void notonly because the wife lacks the capacity to choose her domicile but also becausethey are contrary to law and public policy.

In the case at bench, it is not disputed that former President Marcos exercised his right to fix

the family domicile and established it in Batac, Ilocos Norte, where he was then thecongressman. At that particular point of time and throughout their married life, petitioner losther domicile in Tacloban, Leyte. Since petitioner's Batac domicile has been fixed byoperation 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 alsoaffected in 1965 when her husband was elected President, when they lived in MalacañangPalace, and when she registered as a voter in San Miguel, Manila. Nor was it affected whenshe served as a member of the Batasang Pambansa, Minister of Human Settlements andGovernor 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 familydomicile in Batac and the evidence shows he did not effect any such change. To a largedegree, this follows the common law that "a woman on her marriage loses her own domicileand by operation of law, acquires that of her husband, no matter where the wife actuallylives or what she believes or intends." 7

Fourth. The more difficult task is how to interpret the effect of the death on September 28,1989 of former President Marcos on petitioner's Batac domicile. The issue is of firstimpression in our jurisdiction and two (2) schools of thought contend for acceptance. One isespoused by our distinguished colleague, Mr. Justice Davide, Jr., heavily relying on

American authorities. 8 He echoes the theory that after the husband's death, the wife retains the lastdomicile of her husband until she makes an actual change .

I do not subscribe to this submission. The American case law that the wife still retains her

dead husband's domicile is based on ancient common law which we can no longer apply inthe Philippine setting today . The common law identified the domicile of a wife as that of thehusband and denied to her the power of acquiring a domicile of her own separate and apartfrom him. 9

Legal scholars agree that two (2) reasons support this common law doctrine. The firstreason as pinpointed by the legendary Blackstone is derived from the view that "the very being or legalexistence of the woman is suspended duringthe marriage, or at least is incorporated and consolidated into that of the husband."

10 The second

reason lies in "the desirability of having the interests of each member of the family unit governed by thesame law."

11 The presumption that the wife retains the domicile of her deceased husband is

8/10/2019 art. vi- SEC 6-9


an extension of this common law concept. The concept and its extension have provided some of the mostiniquitous jurisprudence against women. It was under common law that the 1873 American caseof Bradwell v . Illinois

12 was decided where women were denied the right to practice law. It was

unblushingly ruled that "the natural and proper timidity and delicacy which belongs to the female sexevidently unfits it for many of the occupations of civil life . . . This is the law of the Creator." Indeed, therulings relied upon by Mr. Justice Davide in CJS

13 and AM JUR 2d

14 are American state court decisions

handed down between the years 1917 15

and 1938, 16

or before the time when women were accordedequality of rights with men. Undeniably, the women's liberation movement resulted in far-ranging statelegislations in the United States to eliminate gender inequality.

17 Starting in the decade of the seventies,

the courts likewise liberalized their rulings as they started invalidating laws infected with gender-bias. Itwas in 1971 when the US Supreme Court in Reed v . Reed ,

18 struck a big blow for women equality when

it declared as unconstitutional an Idaho law that required probate courts to choose male family membersover females as estate administrators. It held that mere administrative inconvenience cannot justify a sex-based distinction. These significant changes both in law and in case law on the status of women virtuallyobliterated the iniquitous common law surrendering the rights of married women to their husbands basedon the dubious theory of the parties' theoretic oneness . The Corpus Juris Secundum editors did not missthe relevance of this revolution on women's right as they observed: "However, it has been declared thatunder modern statutes changing the status of married women and departing from the common law theoryof marriage, there is no reason why a wife may not acquire a separate domicile for every purpose knownto the law ."

19 In publishing in 1969 the Restatement of the Law, Second (Conflict of Laws 2d), the

reputable American Law Institute also categorically stated that the view of Blackstone ". . . is no longerheld . As the result of statutes and court decisions, a wife now possesses practically the same rights and powers as her unmarried sister ."

20

In the case at bench, we have to decide whether we should continue clinging tothe anachronistic common law that demeans women, especially married women. I submitthat the Court has no choice except to break away from this common law rule, the root ofthe many degradations of Filipino women. Before 1988, our laws particularly the Civil Code,were full of gender discriminations against women. Our esteemed colleague, MadamJustice Flerida Ruth Romero, cited a few of them as follows: 21

xxx xxx xxx

Legal Disabilities Suffered by Wives

Not generally known is the fact that under the Civil Code, wives suffer undercertain restrictions or disabilities. For instance, the wife cannot accept giftsfrom others, regardless of the sex of the giver or the value of the gift, otherthan from her very close relatives, without her husband's consent. She mayaccept only from, say, her parents, parents-in-law, brothers, sisters and therelatives within the so-called fourth civil degree. She may not exercise herprofession or occupation or engage in business if her husband objects onserious grounds or if his income is sufficient to support their family in

accordance with their social standing. As to what constitutes "seriousgrounds" for objecting, this is within the discretion of the husband.

xxx xxx xxx

Because of the present inequitable situation, the amendments to the CivilLaw being proposed by the University of the Philippines Law Center wouldallow absolute divorce which severes the matrimonial ties, such that the

8/10/2019 art. vi- SEC 6-9


divorced spouses are free to get married a year after the divorce is decreedby the courts. However, in order to place the husband and wife on an equalfooting insofar as the bases for divorce are concerned, the following arespecified as the grounds for absolute divorce: (1) adultery or having aparamour committed by the respondent in any of the ways specified in theRevised Penal Code or (2) an attempt by the respondent against the life ofthe petitioner which amounts to attempted parricide under the Revised PenalCode; (3) abandonment of the petitioner by the respondent without just causefor a period of three consecutive years; or (4) habitual maltreatment.

With respect to property relations, the husband is automatically theadministrator of the conjugal property owned in common by the marriedcouple even if the wife may be the more astute or enterprising partner. Thelaw does not leave it to the spouses to decide who shall act as suchadministrator. Consequently, the husband is authorized to engage in acts andenter into transactions beneficial to the conjugal partnership. The wife,however, cannot similarly bind the partnership without the husband's consent.

And while both exercise joint parental authority over their children, it is thefather whom the law designates as the legal administrator of the propertypertaining to the unemancipated child.

Taking the lead in Asia, our government exerted efforts, principally throughlegislations, to eliminate inequality between men and women in our land. Thewatershed came on August 3, 1988 when our Family Code took effect which, amongothers, terminated the unequal treatment of husband and wife as to their rights andresponsibilities. 22

The Family Code attained this elusive objective by giving new rights to married women andby abolishing sex-based privileges of husbands. Among others, married women are nowgiven the joint right to administer the family property, whether in the absolute communitysystem or in the system of conjugal partnership; 23

joint parental authority over their minor children,both over their persons as well as their properties;

24 joint responsibility for the support of the family;

25 the

right to jointly manage the household; 26

and, the right to object to their husband's exercise of profession,occupation, business or activity.

27 Of particular relevance to the case at bench is Article 69 of the Family

Code which took away the exclusive right of the husband to fix the family domicile and gave it jointly tothe husband and the wife, thus:

Art. 69. The husband and wife shall fix the family domicile. In case ofdisagreement, the court shall decide.

The court may exempt one spouse from living with the other if the lattershould live abroad or there are other valid and compelling reasons for theexemption. However, such exemption shall not apply if the same is notcompatible with the solidarity of the family. (Emphasis supplied)

Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of thehusband and wife to live together, former Madam Justice Alice Sempio-Diy of the

8/10/2019 art. vi- SEC 6-9


Court of Appeals specified the instances when a wife may now refuse to live with herhusband , thus: 28

(2) The wife has the duty to live with her husband, but she may refuse to do so in certaincases like:

(a) If the place chosen by the husband as family residence isdangerous to her Life;

(b) If the husband subjects her to maltreatment or abusiveconduct or insults, making common life impossible;

(c) If the husband compels her to live with his parents, but shecannot get along with her mother-in-law and they have constantquarrels (Del Rosario v. Del Rosario, CA, 46 OG 6122);

(d) Where the husband has continuously carried illicit relations

for 10 years with different women and treated his wife roughlyand without consideration. (Dadivas v. Villanueva, 54 Phil. 92);

(e) Where the husband spent his time in gambling, giving nomoney to his family for food and necessities, and at the sametime insulting his wife and laying hands on her. (Panuncio v.Sula, CA, 34 OG 129);

(f) If the husband has no fixed residence and lives a vagabondlife as a tramp (1 Manresa 329);

(g) If the husband is carrying on a shameful business at home(Gahn v. Darby, 38 La. Ann. 70).

The inescapable conclusion is that our Family Code has completely emancipated thewife from the control of the husband , thus abandoning the parties' theoretic identityof interest. No less than the late revered Mr. Justice J.B.L. Reyes who chaired theCivil Code Revision Committee of the UP Law Center gave this insightful view in oneof his rare lectures after retirement: 29

xxx xxx xxx

The Family Code is primarily intended to reform the family law so as to

emancipate the wife from the exclusive control of the husband and to placeher at parity with him insofar as the family is concerned.The wife and thehusband are now placed on equal standing by the Code. They are now jointadministrators of the family properties and exercise joint authority over thepersons and properties of their children. This means a dual authority in thefamily. The husband will no longer prevail over the wife but she has to agreeon all matters concerning the family. (Emphasis supplied)

8/10/2019 art. vi- SEC 6-9


In light of the Family Code which abrogated the inequality between husband andwife as started and perpetuated by the common law, there is no reason in espousingthe 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 hasbeen 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 ormanner such as by ruling that the petitioner is still bound by the domiciliarydetermination of her dead husband.

Aside from reckoning with the Family Code, we have to consider our Constitution and itsfirm guarantees of due process and equal protection oflaw. 30

It can hardly be doubted that the common law imposition on a married woman of her deadhusband's domicile even beyond his grave is patently discriminatory to women . It is a gender-baseddiscrimination and is not rationally related to the objective of promoting family solidarity. It cannot survivea constitutional challenge. Indeed, compared with our previous fundamental laws, the 1987 Constitution ismore concerned with equality between sexes as it explicitly commands that the State ". . . shall ensurefundamental equality before the law of women and men." To be exact, section 14, Article II provides: "TheState recognizes the role of women in nation building, and shall ensure fundamental equality before the

law of women and men. We shall be transgressing the sense and essence of this constitutional mandateif we insist on giving our women the caveman's treatment.

Prescinding from these premises, I respectfully submit that the better stance is to rule that petitioner reacquired her Tacloban domicile upon the death of her husband in 1989. This isthe necessary consequence of the view that petitioner's Batac dictated domicile did notcontinue after her husband's death; otherwise, she would have no domicile and that willviolate the universal rule that no person can be without a domicile at any point of time. Thisstance also restores the right of petitioner to choose her domicile before it was taken awayby Article 110 of the Civil Code, a right now recognized by the Family Code and protectedby the Constitution. Likewise, I cannot see the fairness of the common law requiringpetitioner to choose again her Tacloban domicile before she could be released from herBatac domicile. She lost her Tacloban domicile not through her act but through the act ofher deceased husband when he fixed their domicile in Batac. Her husband is dead and hecannot rule her beyond the grave. The law disabling her to choose her own domicile hasbeen repealed. Considering all these, common law should not put the burden on petitionerto prove she has abandoned her dead husband's domicile. There is neither rhyme norreason for this gender-based burden.

But even assuming arguendo that there is need for convincing proof that petitioner chose toreacquire her Tacloban domicile, still, the records reveal ample evidence to this effect . Inher affidavit submitted to the respondent COMELEC, petitioner averred:

xxx xxx xxx

36. In November, 1991, I came home to our beloved country, after severalrequests for my return were denied by President Corazon C. Aquino, andafter I filed suits for our Government to issue me my passport.

8/10/2019 art. vi- SEC 6-9


37. But I came home without the mortal remains of my beloved husband,President Ferdinand E. Marcos, which the Government considered a threat tothe national security and welfare.

38. Upon my return to the country, I wanted to immediately live and reside inTacloban City or in Olot, Tolosa, Leyte, even if my residences there were notlivable as they had been destroyed and cannibalized. The PCGG, however,did not permit and allow me.

39. As a consequence, I had to live at various times in the Westin PhilippinePlaza in Pasay City, a friend's apartment on Ayala Avenue, a house in SouthForbes Park which my daughter rented, and Pacific Plaza, all in Makati.

40. After the 1992 Presidential Elections, I lived and resided in the residenceof my brother in San Jose, Tacloban City, and pursued my negotiations withPCGG to recover my sequestered residences in Tacloban City and BarangayOlot, Tolosa, Leyte.

40.1 In preparation for my observance of All Saints' Day and AllSouls' Day that year, I renovated my parents' burial groundsand entombed their bones which had been excalvated,unearthed and scattered.

41. On November 29, 1993, I formally wrote PCGG Chairman MagtanggolGunigundo for permissions to —

. . . rehabilitate . . . (o)ur ancestral house in Tacloban andfarmhouse in Olot, Leyte . . . to make them livable for us the

Marcos family to have a home in our own motherland.

xxx xxx xxx

42. It was only on 06 June 1994, however, when PCGG ChairmanGunigundo, in his letter to Col. Simeon Kempis, Jr., PCGG Region 8Representative, allowed me to repair and renovate my Leyte residences. Iquote part of his letter:

Dear Col. Kempis,

Upon representation by Mrs. Imelda R. Marcos to thisCommission, that she intends to visit our sequesteredproperties in Leyte, please allow her access thereto. She mayalso cause repairs and renovation of the sequesteredproperties, in which event, it shall be understood that herundertaking said repairs is not authorization for her to take oversaid properties, and that all expenses shall be for her accountand not reimbursable. Please extend the necessary courtesy toher.

8/10/2019 art. vi- SEC 6-9


xxx xxx xxx

43. I was not permitted, however, to live and stay in the Sto. Niño Shrineresidence in Tacloban City where I wanted to stay and reside, after repairsand renovations were completed. In August 1994, I transferred from SanJose, Tacloban City, to my residence in Barangay Olot, Tolosa, Leyte, whenPCGG permitted me to stay and live there.

It is then clear that in 1992 petitioner reestablished her domicile in the First District ofLeyte. It is not disputed that in 1992, she first lived at the house of her brother in SanJose, Tacloban City and later, in August 1994, she transferred her residence inBarangay Olot, Tolosa, Leyte. Both Tacloban City and the municipality of Olot arewithin the First District of Leyte. Since petitioner reestablished her old domicile in1992 in the First District of Leyte, she more than complied with the constitutionalrequirement of residence". . . for a period of not less than one year immediately preceding the day of theelection," i .e., the May 8, 1995 elections.

The evidence presented by the private respondent to negate the Tacloban domicile of petitioner is nil . He presented petitioner's Voter's Registration Record filed with the Board ofElection Inspectors of Precinct 10-A of Barangay Olot, Tolosa, Leyte wherein she statedthat her period of residence in said barangay was six (6) months as of the date of her filingof said Voter's Registration Record on January 28, 1995. 31

This statement in petitioner's Voter'sRegistration Record is a non-prejudicial admission. The Constitution requires at least one (1) yearresidence in thedistrict in which the candidate shall be elected. In the case at bench, the reference is theFirst District of Leyte. Petitioner's statement proved that she resided in Olot six (6) months before January28, 1995 but did not disprove that she has also resided in Tacloban City starting 1992. As aforestated,Olot and Tacloban City are both within the First District of Leyte, hence, her six (6) months residence inOlot should be counted not against, but in her favor. Private respondent also presented petitioner's

Certificate of Candidacy filed on March 8, 1995

32

where she placed seven (7) months after Item No. 8which called for information regarding "residence in the constituency where I seek to be electedimmediately preceding the election." Again, this original certificate of candidacy has no evidentiary valuebecause an March 1, 1995 it was corrected by petitioner. In her Amended/Corrected Certificate ofCandidacy,

33 petitioner wrote "since childhood" after Item No. 8. The amendment of a certificate of

candidacy to correct a bona fide mistake has been allowed by this Court as a matter of course and as amatter of right. As we held in Alialy v . COMELEC ,

34 viz .:

xxx xxx xxx

The absence of the signature of the Secretary of the local chapter N.P in theoriginal certificate of candidacy presented before the deadline September 11,1959, did not render the certificate invalid.The amendment of the certificate,although at a date after the deadline, but before the election, was substantialcompliance with the law, and the defect was cured .

It goes without saying that petitioner's erroneous Certificate of Candidacy filed onMarch 8, 1995 cannot be used as evidence against her. Private respondent's petitionfor the disqualification of petitioner rested alone on these two (2) brittle pieces ofdocumentary evidence — petitioner's Voter's Registration Record and her originalCertificate of Candidacy. Ranged against the evidence of the petitioner showing her

8/10/2019 art. vi- SEC 6-9


ceaseless contacts with Tacloban, private respondent's two (2) pieces of evidenceare too insufficient to disqualify petitioner, more so, to deny her the right to representthe people of the First District of Leyte who have overwhelmingly voted for her.

Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates forany public office shall be free from any form of harassment and discrimination." 35

A detached

reading of the records of the case at bench will show that all forms of legal and extra-legal obstacles havebeen thrown against petitioner to prevent her from running as the people's representative in the FirstDistrict of Leyte. In petitioner's Answer to the petition to disqualify her, she averred:

36

xxx xxx xxx

10. Petitioner's (herein private respondent Montejo) motive in filing the instantpetition is devious. When respondent (petitioner herein) announced that shewas intending to register as a voter in Tacloban City and run for Congress inthe First District of Leyte, petitioner (Montejo) immediately opposed herintended registration by writing a letter stating that "she is not a resident of

said city but of Barangay Olot, Tolosa, Leyte." (Annex "2" of respondent'saffidavit, Annex "2"). After respondent (petitioner herein) had registered as avoter in Tolosa following completion of her six-month actual residencetherein, petitioner (Montejo) filed a petition with the COMELEC to transfer thetown of Tolosa from the First District to the Second District and pursued suchmove up to the Supreme Court in G.R. No. 118702, his purpose being toremove respondent (petitioner herein) as petitioner's (Montejo's) opponent inthe congressional election in the First District. He also filed a bill, along withother Leyte Congressmen, seeking to create another legislative district, toremove the town of Tolosa out of the First District and to make it a part of thenew district, to achieve his purpose. However, such bill did not pass theSenate. 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 himselfalong with respondent (petitioner herein) for the judgment and verdict of theelectorate of the First District of Leyte in an honest, orderly, peaceful, freeand clean elections on May 8, 1995.

These allegations which private respondent did not challenge were not lostto the perceptive eye of Commissioner Maambong who in his DissentingOpinion, 37

held:

xxx xxx xxx

Prior to the registration date — January 28, 1995 the petitioner (herein privaterespondent Montejo) wrote the Election Officer of Tacloban City not to allowrespondent (petitioner herein) to register thereat since she is a resident ofTolosa and not Tacloban City. The purpose of this move of the petitioner(Montejo) is not lost to (sic ) the Commission. In UND No. 95-001 (In thematter of the Legislative Districts of the Provinces of Leyte, Iloilo, and SouthCotabato, Out of Which the New Provinces of Biliran, Guimaras andSaranggani Were Respectively Created ), . . . Hon. Cirilo Roy G. Montejo,Representative, First District of Leyte, wanted the Municipality of Tolosa, in

8/10/2019 art. vi- SEC 6-9


the First District of Leyte, transferred to the Second District of Leyte. TheHon. Sergio A.F. Apostol, Representative of the Second District of Leyte,opposed the move of the petitioner (Montejo). Under Comelec Resolution No.2736 (December 29, 1994), the Commission on Elections refused to makethe proposed transfer. Petitioner (Montejo) filed "Motion for Reconsiderationof ResolutionNo. 2736 " which the Commission denied in a Resolution promulgated onFebruary 1, 1995. Petitioner (Montejo) filed a petition for certiorari before theHonorable Supreme Court (Cirilo Roy G. Montejo vs. Commission onElections, G.R. No. 118702) questioning the resolution of the Commission.Believing that he could get a favorable ruling from the Supreme Court,petitioner (Montejo) tried to make sure that the respondent (petitioner herein)will register as a voter in Tolosa so that she will be forced to run asRepresentative not in the First but in the Second District.

It did not happen. On March 16, 1995, the Honorable Supreme Courtunanimously promulgated a "Decision," penned by Associate Justice Reynato

S. Puno, the dispositive portion of which reads:

IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofaras it transferred the municipality of Capoocan of the SecondDistrict and the municipality of Palompon of the Fourth Districtto the Third District of the province of Leyte, is annulled and setaside. We also deny the Petition praying for the transfer of themunicipality of Tolosa from the First District to the SecondDistrict of the province of Leyte. No costs.

Petitioner's (Montejo's) plan did not work. But the respondent (petitionerherein) was constrained to register in the Municipality of Tolosa where herhouse is instead of Tacloban City, her domicile. In any case, both TaclobanCity and Tolosa are in the First Legislative District.

All these attempts to misuse our laws and legal processes are forms of rankharassments and invidious discriminations against petitioner to deny her equalaccess to a public office. We cannot commit any hermeneutic violence to theConstitution by torturing the meaning of equality, the end result of which will allowthe harassment and discrimination of petitioner who has lived a controversial life, apast 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 tointerpret the Constitution is to inject in its interpretation, bile and bitterness.

Sixth. In Gallego v . Vera, 38 we explained that the reason for this residence requirement is "to exclude

a stranger or newcomer, unacquainted, with the conditions and needs of a community and not identifiedwith the latter, from an elective office to serve that community . . . ." Petitioner's lifetime contacts with theFirst District of Leyte cannot be contested. Nobody can claim that she is not acquainted with its problemsbecause she is a stranger to the place. None can argue she cannot satisfy the intent of the Constitution.

Seventh. In resolving election cases, a dominant consideration is the need to effectuate thewill of the electorate. The election results show that petitioner received Seventy Thousand

8/10/2019 art. vi- SEC 6-9


Four Hundred Seventy-one (70,471) votes, while private respondent got only Thirty-SixThousand Eight Hundred Thirty-Three (36,833) votes. Petitioner is clearly the overwhelmingchoice of the electorate of the First District of Leyte and this is not a sleight of statistics. Wecannot frustrate this sovereign will on highly arguable technical considerations. In case ofdoubt, we should lean towards a rule that will give life to the people's political judgment.

A final point . The case at bench provides the Court with the rare opportunity to rectify theinequality of status between women and men by rejecting the iniquitous common lawprecedents on the domicile of married women and by redefining domicile in accord with ourown culture, law, and Constitution. To rule that a married woman is eternally tethered to thedomicile dictated by her dead husband is to preserve the anachronistic and anomalousbalance of advantage of a husband over his wife. We should not allow the dead to governthe living even if the glories of yesteryears seduce us to shout long live the dead! TheFamily Code buried this gender-based discrimination against married women and weshould not excavate what has been entombed. More importantly, the Constitution forbids it.


Bellosillo and Melo, JJ., concur.

FRANCISCO, J., concurring:

I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the position ofRepresentative of the First Congressional District of Leyte. I wish, however, to express afew comments on the issue of petitioner's domicile.

Domicile has been defined as that place in which a person's habitation is fixed, without anypresent 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 ortemporary 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 thesense that they disclose intent. (Ong Huan Tin v. Republic, 19 SCRA 966, 969)

Domicile is classified into domicile of origin and domicile of choice. The law attributes toevery individual a domicile of origin, which is the domicile of his parents, or of the head ofhis family, or of the person on whom he is legally dependent at the time of his birth. Whilethe 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 haselected and chosen for himself to displace his previous domicile; it has for its true basis or

foundation the intention of the person (28 C.J.S. §6). In order to hold that a person hasabandoned his domicile and acquired a new one called domicile of choice, the followingrequisites must concur, namely, (a) residence or bodily presence in the new locality, (b)intention to remain there or animus manendi , and (c) an intention to abandon the olddomicile or animus non revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA408, 415). A third classification is domicile by operation of law which attributes to a person adomicile independent of his own intention or actual residence, ordinarily resulting from legal

8/10/2019 art. vi- SEC 6-9


domestic relations, as that of the wife arising from marriage, or the relation of a parent and achild (28 C.J.S. §7).

In election law, when our Constitution speaks of residence for election purposes it meansdomicile (Co v. Electoral Tribunal of the House of Representatives, 199 SCRA 692, 713;Nuval v. Guray, 52 Phil. 645, 651). To my mind, public respondent Commission onElections misapplied this concept, of domicile which led to petitioner's disqualification byruling that petitioner failed to comply with the constitutionally mandated one-year residencerequirement. Apparently, public respondent Commission deemed as conclusive petitioner'sstay and registration as voter in many places as conduct disclosing her intent to abandonher established domicile of origin in Tacloban, Leyte. In several decisions, though, the Courthas laid down the rule that registration of a voter in a place other than his place of origin isnot sufficient to constitute abandonment or loss of such residence (Faypon v. Quirino, 96Phil. 294, 300). Respondent Commission offered no cogent reason to depart from this ruleexcept to surmise petitioner's intent of abandoning her domicile of origin.

It has been suggested that petitioner's domicile of origin was supplanted by a new domicile

due to her marriage, a domicile by operation of law. The proposition is that upon the deathof her husband in 1989 she retains her husband's domicile, i .e., Batac, Ilocos Norte, untilshe makes an actual change thereof. I find this proposition quite untenable.

Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily supplanted withanother, i .e., Batac, Ilocos Norte, upon her marriage in 1954 with then CongressmanMarcos. By legal fiction she followed the domicile of her husband. In my view, the reason forthe law is for the spouses to fully and effectively perform their marital duties and obligationsto one another. 1

The question of domicile, however, is not affected by the fact that it was the legal or

moral duty of the individual to reside in a given place (28 C.J.S. §11). Thus, while the wife retains hermarital 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 allwifely obligations yet made to hold on to one which no longer serves any meaningful purpose.

It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyteupon her husband's death without even signifying her intention to that effect. It is for theprivate respondent to prove, not for petitioner to disprove, that petitioner has effectivelyabandoned Tacloban, Leyte for Batac, Ilocos Norte or for some other place/s. The clear ruleis that it is the party (herein private respondent) claiming that a person has abandoned orlost his residence of origin who must show and prove preponderantly such abandonment orloss (Faypon v. Quirino,supra at 298; 28 C.J.S. §16), because the presumption is strongly infavor of an original or former domicile, as against an acquired one (28 C.J.S. §16). Privaterespondent unfortunately failed to discharge this burden as the record is devoid ofconvincing proof that petitioner has acquired whether voluntarily or involuntarily, a newdomicile to replace her domicile of origin.

The records, on the contrary, clearly show that petitioner has complied with theconstitutional one-year residence requirement. After her exile abroad, she returned to thePhilippines in 1991 to reside in Olot, Tolosa, Leyte, but the Presidential Commission onGood Government which sequestered her residential house and other properties forbadeher necessitating her transient stay in various places in Manila (Affidavit p.6, attached as

8/10/2019 art. vi- SEC 6-9


Annex I of the Petition). In 1992, she ran for the position of president writing in hercertificate of candidacy her residence as San Juan, Metro Manila. After her loss therein, shewent back to Tacloban City, acquired her residence certificate 2

and resided with her brother in

San Jose. She resided in San Jose, Tacloban City until August of 1994 when she was allowed by thePCGG to move and reside in her sequestered residential house in Olot, Tolosa, Leyte (Annex I, p. 6).

3 It

was in the same month of August when she applied for the cancellation of her previous registration in San

Juan, Metro Manila in order to register anew as voter of Olot, Tolosa, Leyte, which she did on January 28,1995. From this sequence of events, I find it quite improper to use as the reckoning period of the one-yearresidence requirement the date when she applied for the cancellation of her previous registration in SanJuan, Metro Manila. The fact which private respondent never bothered to disprove is that petitionertransferred her residence after the 1992 presidential election from San Juan, Metro Manila to San Jose,Tacloban City, and resided therein until August of 1994. She later transferred to Olot, Tolosa, Leyte(Annex I, p. 7). It appearing that both Tacloban City and Tolosa, Leyte are within the First CongressionalDistrict of Leyte, it indubitably stands that she had more than a year of residence in the constituency shesought to be elected. Petitioner, therefore, has satisfactorily complied with the one-year qualificationrequired by the 1987 Constitution.


ROMERO, J., separate opinion:

Petitioner has appealed to this Court for relief after the COMELEC ruled that she wasdisqualified from running for Representative of her District and that, in the event that sheshould, nevertheless, muster a majority vote, her proclamation should be suspended. Notby a straightforward ruling did the COMELEC pronounce its decision as has been itsunvarying practice in the past, but by a startling succession of "reverse somersaults."Indicative of its shifting stance vis-a-vis petitioner's certificate of candidacy were first, theaction of its Second Division disqualifying her and canceling her original Certificate ofCandidacy by a vote of 2-1 on April 24, 1995; then the denial by the COMELEC en banc ofher Motion for Reconsideration on May 7, 1995, a day before the election; then because

she persisted in running, its decision onMay 11, 1995 or three days after the election, allowing her proclamation in the event thatthe results of the canvass should show that she obtained the highest number of votes(obviously noting that petitioner had won overwhelmingly over her opponent), but almostsimultaneously reversing itself by directing that even if she wins, her proclamation shouldnonetheless be suspended.

Crucial to the resolution of the disqualification issue presented by the case at bench is theinterpretation to be given to the one-year residency requirement imposed by theConstitution on aspirants for a Congressional seat. 1

Bearing in mind that the term "resident" has been held to be synonymous with "domicile" forelection purposes, it is important to determine whether petitioner's domicile was in the FirstDistrict 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 herbirth. Depending on what theory one adopts, the same may have been changed when shemarried 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 byhim 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

8/10/2019 art. vi- SEC 6-9


law," which subject we shall not belabor since it has been amply discussed bythe ponenteand in the other separate opinions.

In any case, what assumes relevance is the divergence of legal opinion as to the effect ofthe husband's death on the domicile of the widow. Some scholars opine that the widow'sdomicile remains unchanged; that the deceased husband's wishes perforce still bind thewife he has left behind. Given this interpretation, the widow cannot possibly go far enoughto sever the domiciliary tie imposed by her husband.

It is bad enough to interpret the law as empowering the husband unilaterally to fix theresidence or domicile of the family, as laid down in the Civil Code, 2

but to continue giving

obeisance to his wishes even after the rationale underlying the mutual duty of the spouses to live togetherhas ceased, is to close one's eyes to the stark realities of the present.

At the other extreme is the position that the widow automatically reverts to her domicile oforigin upon the demise of her husband. Does the law so abhor a vacuum that the widowhas to be endowed somehow with a domicile? To answer this question which is far from

rhetorical, one will have to keep in mind the basic principles of domicile. Everyone musthave a domicile. Then one must have only a single domicile for the same purpose at anygiven time. Once established, a domicile remains until a new one is acquired, for no personlives who has no domicile, as defined by the law be is subject to.

At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction,rendered more murky by the conflicting opinions of foreign legal authorities. This being thestate of things, it is imperative as it is opportune to illumine the darkness with the beaconlight of truth, as dictated by experience and the necessity of according petitioner her right tochoose her domicile in keeping with the enlightened global trend to recognize and protectthe human rights of women, no less than men.

Admittedly, the notion of placing women at par with men, insofar as civil, political and socialrights are concerned, is a relatively recent phenomenon that took seed only in the middle ofthis century. It is a historical fact that for over three centuries, the Philippines had beencolonized by Spain, a conservative, Catholic country which transplanted to our shores theOld World cultures, mores and attitudes and values. Through the imposition on ourgovernment of the Spanish Civil Code in 1889, the people, both men and women, had nochoice but to accept such concepts as the husband's being the head of the family and thewife's subordination to his authority. In such role, his was the right to make vital decisionsfor the family. Many instances come to mind, foremost being what is related to the issuebefore us, namely, that "the husband shall fix the residence of the family." 3

Because he is

made responsible for the support of the wife and the rest of the family, 4 he is also empowered to be the

administrator of the conjugal property, with a few exceptions 5 and may, therefore, dispose of the conjugal

partnership property for the purposes specified under the law; 6whereas, as a general rule, the wifecannot bind the conjugal partnership without the husband's consent.

7 As regards the property pertaining

to the children under parental authority, the father is the legal administrator and only in his absence maythe mother assume his powers.

8 Demeaning to the wife's dignity are certain strictures on her personal

freedoms, practically relegating her to the position of minors and disabled persons. To illustrate a few:The wife cannot, without the husband's consent, acquire any gratuitous title, except from her ascendants,descendants, parents-in-law, and collateral relatives within the fourth degree.

9 With respect to her

employment, the husband wields a veto power in the case the wife exercises her profession oroccupation or engages in business, provided his income is sufficient for the family, according to its social

8/10/2019 art. vi- SEC 6-9


standing and his opposition is founded on serious and valid grounds.10

Most offensive, if not repulsive, tothe liberal-minded is the effective prohibition upon a widow to get married till after three hundred daysfollowing the death of her husband, unless in the meantime, she has given birth to a child.

11 The mother

who contracts a subsequent marriage loses the parental authority over her children, unless the deceasedhusband, father of the latter, has expressly provided in his will that his widow might marry again, and hasordered that in such case she should keep and exercise parental authority over their children.

12 Again, an

instance of a husband's overarching influence from beyond the grave.

All these indignities and disabilities suffered by Filipino wives for hundreds of years evokedno protest from them until the concept of human rights and equality between and amongnations and individuals found hospitable lodgment in the United Nations Charter of whichthe Philippines was one of the original signatories. By then, the Spanish "conquistadores"had been overthrown by the American forces at the turn of the century. The bedrock of theU.N. Charter was firmly anchored on this credo: "to reaffirm faith in the fundamental humanrights, in the dignity and worth of the human person, in the equal rights of men and women."(Emphasis supplied)

It took over thirty years before these egalitarian doctrines bore fruit, owing largely to

the burgeoning of the feminist movement. What may be regarded as theinternational bill of rights for women was implanted in the Convention on theElimination of All Forms of Discrimination Against Women (CEDAW) adopted by theU.N. General Assembly which entered into force as an international treaty onSeptember 3, 1981. In ratifying the instrument, the Philippines bound itself toimplement its liberating spirit and letter, for its Constitution, no less, declared that"The Philippines. . . adopts the generally accepted principles of international law aspart of the law of the land and adheres to the policy of peace, equality, justice,freedom, cooperation, and amity with all nations." 13

One such principle embodied in the

CEDAW is granting to men and women "the same rights with regard to the law relating to themovement of persons and the freedom to choose their residence and domicile."

14(Emphasis

supplied).

CEDAW's pro-women orientation which was not lost on Filipino women was reflected in the1987 Constitution of the Philippines and later, in the Family Code, 15

both of which were

speedily approved by the first lady President of the country, Corazon C. Aquino. Notable for its emphasison the human rights of all individuals and its bias for equality between the sexes are the followingprovisions: "The State values the dignity of every human person and guarantees full respect for humanrights"

16 and "The State recognizes the role of women in nation-building, and shall ensure the

fundamental equality before the law of women and men." 17

A major accomplishment of women in their quest for equality with men and the eliminationof discriminatory provisions of law was the deletion in the Family Code of almost all of theunreasonable strictures on wives and the grant to them of personal rights equal to that of

their husbands. Specifically, the husband and wife are now given the right jointly to fix thefamily domicile; 18

concomitant to the spouses' being jointly responsible for the support of the family is

the right and duty of both spouses to manage the household; 19

the administration and the enjoyment ofthe community property shall belong to both spouses jointly;

20 the father and mother shall now jointly

exercise legal guardianship over the property of their unemancipated common child 21

and several others.

Aware of the hiatus and continuing gaps in the law, insofar as women's rights areconcerned, Congress passed a law popularly known as "Women in Development and

8/10/2019 art. vi- SEC 6-9


Nation Building Act" 22 Among the rights given to married women evidencing their capacity to act in

contracts equal to that of men are:

(1) Women shall have the capacity to borrow and obtain loans and execute security andcredit arrangements under the same conditions as men;

(2) Women shall have equal access to all government and private sector programs grantingagricultural credit, loans and non material resources and shall enjoy equal treatment inagrarian reform and land resettlement programs;

(3) Women shall have equal rights to act as incorporators and enter into insurancecontracts; and

(4) Married women shall have rights equal to those of married men in applying forpassports, secure visas and other travel documents, without need to secure the consent oftheir spouses.

As the world draws the curtain on the Fourth World Conference of Women in Beijing, let thisCourt now be the first to respond to its clarion call that "Women's Rights are Human Rights"and that "All obstacles to women's full participation in decision-making at all levels, includingthe family" should be removed. Having been herself a Member of the Philippine Delegationto the International Women's Year Conference in Mexico in 1975, this writer is only tookeenly aware of the unremitting struggle being waged by women the world over, Filipinowomen not excluded, to be accepted as equals of men and to tear down the walls ofdiscrimination that hold them back from their proper places under the sun.

In light of the inexorable sweep of events, local and global, legislative, executive and judicial, according more rights to women hitherto denied them and eliminating whateverpockets of discrimination still exist in their civil, political and social life, can it still be insistedthat widows are not at liberty to choose their domicile upon the death of their husbands butmust retain the same, regardless?

I submit that a widow, like the petitioner and others similarly situated, can no longer bebound by the domicile of the departed husband, if at all she was before. Neither does sheautomatically revert to her domicile of origin, but exercising free will, she may opt toreestablish her domicile of origin. In returning to Tacloban and subsequently, to BarangayOlot, Tolosa, both of which are located in the First District of Leyte, petitioner amplydemonstrated by overt acts, her election of a domicile of choice, in this case, a reversion toher domicile of origin. Added together, the time when she set up her domicile in the twoplaces sufficed to meet the one-year requirement to run as Representative of the First

District of Leyte.

In view of the foregoing expatiation, I vote to GRANT the petition.

VITUG, J., separate opinion:

The case at bench deals with explicit Constitutional mandates.

8/10/2019 art. vi- SEC 6-9


The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets upideals and directions and render steady our strides hence. It only looks back so as toensure that mistakes in the past are not repeated. A compliant transience of a constitutionbelittles its basic function and weakens its goals. A constitution may well become outdatedby the realities of time. When it does, it must be changed but while it remains, we owe itrespect and allegiance. Anarchy, open or subtle, has never been, nor must it ever be, theanswer to perceived transitory needs, let alone societal attitudes, or the Constitution mightlose its very essence.

Constitutional provisions must be taken to be mandatory in character unless, either byexpress statement or by necessary implication, a different intention is manifest (seeMarcelino vs. Cruz, 121 SCRA 51).

The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of thefundamental law. These provisions read:

Sec. 6. No person shall be a Member of the House of Representatives unless

he is a natural-born citizen of the Philippines and, on the day of the election,is at least twenty-five years of age, able to read and write, and, except theparty-list representatives, a registered voter in the district in which he shall beelected, and a resident thereof for a period of not less than one yearimmediately preceding the day of the election.

Sec. 17. The Senate and the House of Representatives shall each have anElectoral Tribunal which shall be the sole judge of all contests relating to theelection, returns, and qualifications of their respective Members. EachElectoral Tribunal shall be composed of nine Members, three of whom shallbe 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 ofRepresentatives, as the case may be, who shall be chosen on the basis ofproportional representation from the political parties and the parties ororganizations registered under the party-list system represented therein. Thesenior Justice in the Electoral Tribunal shall be its Chairman.

The Commission on Election (the "COMELEC") is constitutionally bound to enforce andadminister "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 topass upon the qualification and disqualification prescribed by law of candidates to anelective office. Indeed, pre-proclamation controversies are expressly placed under theCOMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3, Constitution).

The matter before us specifically calls for the observance of the constitutional one-yearresidency requirement. The issue (whether or not there is here such compliance), to mymind, is basically a question of fact or at least inextricably linked to such determination. Thefindings and judgment of the COMELEC, in accordance with the long established rule andsubject only to a number of exceptions under the basic heading of "grave abuse ofdiscretion," are not reviewable by this Court.

8/10/2019 art. vi- SEC 6-9


I do not find much need to do a complex exercise on what seems to me to be a plain matter.Generally, the term "residence" has a broader connotation that maymean permanent (domicile), official (place where one's official duties may require him tostay) or temporary (the place where he sojourns during a considerable length of time). Forcivil law purposes, i .e., as regards the exercise of civil rights and the fulfillment of civilobligations, 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 bythis 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 synonymousterms, thus: "(t)he term "residence" as used in the election law is synonymouswith "domicile," which imports not only an intention to reside in a fixed placebut also personal presence in that place, coupled with conduct indicative ofsuch intention." "Domicile" denotes a fixed permanent residence to whichwhen absent for business or pleasure, or for like reasons, one intends toreturn. . . . . Residence thus acquired, however, may be lost by adopting

another choice of domicile. In order, in turn, to acquire a new domicile bychoice, there must concur (1) residence or bodily presence in the newlocality, (2) an intention to remain there, and (3) an intention to abandon theold domicile. In other words, there must basically be animus manendi coupledwith animus non revertendi . The purpose to remain in or at the domicile ofchoice must be for an indefinite period of time; the change of residence mustbe voluntary; and the residence at the place chosen for the new domicilemust be actual.

Using the above tests, I am not convinced that we can charge the COMELEC withhaving committed grave abuse of discretion in its assailed resolution.

The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of the Electoral Tribunal concerned begins. It signifies that the protestee musthave theretofore been duly proclaimed and has since become a "member" of the Senate orthe House of Representatives. The question can be asked on whether or not theproclamation of a candidate is just a ministerial function of the Commission on Electionsdictated solely on the number of votes cast in an election exercise. I believe, it is not. Aministerial duty is an obligation the performance of which, being adequately defined, doesnot allow the use of further judgment or discretion. The COMELEC, in its particular case, istasked with the full responsibility of ascertaining all the facts and conditions such as may berequired by law before a proclamation is properly done.

The Court, on its part, should, in my view at least, refrain from any undue encroachment onthe ultimate exercise of authority by the Electoral Tribunals on matters which, by no lessthan a constitutional fiat, are explicitly within their exclusive domain. The nagging question,if it were otherwise, would be the effect of the Court's peremptory pronouncement on theability of the Electoral Tribunal to later come up with its own judgment in a contest "relatingto the election, returns and qualification" of its members.

8/10/2019 art. vi- SEC 6-9


Prescinding from all the foregoing, I should like to next touch base on the applicability to thiscase of Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas PambansaBlg . 881, each providing thusly:

REPUBLIC ACT NO. 6646

xxx xxx xxx

Sec. 6. Effect of Disqualification Case. — Any candidate who has beendeclared by final judgment to be disqualified shall not be voted for, and thevotes cast for him shall not be counted. If for any reason a candidate is notdeclared by final judgment before an election to be disqualified and he isvoted for and receives the winning number of votes in such election, theCourt or Commission shall continue with the trial and hearing of the action,inquiry or protest and, upon motion of the complainant or any intervenor, mayduring the pendency thereof order the suspension of the proclamation of suchcandidate whenever the evidence of his guilt is strong.

BATAS PAMBANSA BLG. 881

xxx xxx xxx

Sec. 72. Effects of disqualification cases and priority .— The Commission andthe courts shall give priority to cases of disqualification by reason of violationof this Act to the end that a final decision shall be rendered not later thanseven 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, judgmentbefore an election to be disqualified, and he is voted for and receives thewinning number of votes in such election, his violation of the provisions of thepreceding sections shall not prevent his proclamation and assumption tooffice.

I realize that in considering the significance of the law, it may be preferable to look for not somuch the specific instances they ostensibly would cover as the principle they clearlyconvey. Thus, I will not scoff at the argument that it should be sound to say that votes castin favor of the disqualified candidate, whenever ultimately declared as such, should not becounted 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 doctrinefirst enunciated in the case of Topacio vs. Paredes (23 Phil. 238 [1912]) which, althoughlater abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santosvs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim caseof 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, mostrecently, Benito (235 SCRA 436 [1994]) rulings. Benito vs. Comelec was a unanimousdecision penned by Justice Kapunan and concurred in by Chief Justice Narvasa, Justices

8/10/2019 art. vi- SEC 6-9


Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno, Vitug andMendoza (Justices Cruz and Bellosillo were on official leave). For easy reference, let mequote from the first Labo decision:

Finally, there is the question of whether or not the private respondent, whofiled the quo warrantopetition, can replace the petitioner as mayor. He cannot.The simple reason is that as he obtained only the second highest number ofvotes in the election, he was obviously not the choice of the people of BaguioCity.

The latest ruling of the Court on this issue is Santos v. Commission onElections, (137 SCRA 740) decided in 1985. In that case, the candidate whoplaced second was proclaimed elected after the votes for his winning rival,who was disqualified as a turncoat and considered a non-candidate, were alldisregard as stray. In effect, the second placer won by default. That decisionwas 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 ., AbadSantos and Melencio-Herrera, JJ .) and another two reserving their vote.(Plana and Gutierrez, Jr., JJ .) One was on official leave. (Fernando, C .J .)

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

. . . it would be extremely repugnant to the basic concept of theconstitutionally guaranteed right to suffrage if a candidate whohas not acquired the majority or plurality of votes is proclaimeda winner and imposed as the representative of a constituency,the majority of which have positively declared through theirballots 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 inthe election for that office, and it is a fundamental idea in allrepublican forms of government that no one can be declaredelected and no measure can be declared carried unless he or itreceives a majority or plurality of the legal votes cast in theelection. (20 Corpus Juris 2nd, S 243, p. 676.)

8/10/2019 art. vi- SEC 6-9


The fact that the candidate who obtained the highest number of votes is laterdeclared to be disqualified or not eligible for the office to which he waselected does not necessarily entitle the candidate who obtained the secondhighest number of votes to be declared the winner of the elective office. Thevotes cast for a dead, disqualified, or non-eligible person may not be valid tovote the winner into office or maintain him there. However, in the absence ofa statute which clearly asserts a contrary political and legislative policy on thematter, if the votes were cast in the sincere belief that the candidate wasalive, qualified, or eligible, they should not be treated as stray, void ormeaningless. (at pp. 20-21)

Considering all the foregoing, I am constrained to vote for the dismissal of the petition.

MENDOZA, J., separate opinion:

In my view the issue in this case is whether the Commission on Elections has the power todisqualify 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 bequestioned only in the event they are elected, by filing a petition for quo warranto or anelection protest in the appropriate forum, not necessarily in the COMELEC but, as in thiscase, in the House of Representatives Electoral Tribunal. That the parties in this case tookpart in the proceedings in the COMELEC is of no moment. Such proceedings wereunauthorized and were not rendered valid by their agreement to submit their dispute to thatbody.

The various election laws will be searched in vain for authorized proceedings fordetermining a candidate's qualifications for an office before his election. There are none inthe 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 otherwords, no provisions for pre-proclamation contests but only election protests or quowarrantoproceedings against winning candidates.

To be sure, there are provisions denominated for "disqualification," but they are notconcerned with a declaration of the ineligibility of a candidate. These provisions areconcerned with the incapacity (due to insanity, incompetence or conviction of an offense) ofa person either to be a candidate or to continue as a candidate for public office. There isalso a provision for the denial or cancellation of certificates of candidacy, but it applies onlyto cases involving false representations as to certain matters required by law to be stated inthe certificates.

These provisions are found in the following parts of the Omnibus Election Code:

§ 12. Disqualifications. — Any person who has been declared by competentauthority insane or incompetent, or has been sentenced by final judgment forsubversion, insurrection, rebellion or for any offense for which he has beensentenced to a penalty of more than eighteen months or for a crime involvingmoral turpitude, shall be disqualified to be a candidate and to hold any office,unless he has been given plenary pardon or granted amnesty.

8/10/2019 art. vi- SEC 6-9


The disqualifications to be a candidate herein provided shall be deemedremoved upon the declaration by competent authority that said insanity orincompetence had been removed or after the expiration of a period of fiveyears from his service of sentence, unless within the same period he againbecomes disqualified. (Emphasis added)

§ 68. Disqualifications. — Any candidate who, in an action or protest in whichhe is a party is declared by final decision of a competent court guilty of, orfound by the Commission of having (a) given money or other materialconsideration to influence, induce or corrupt the voters or public officialsperforming electoral functions; (b) committed acts of terrorism to enhance hiscandidacy; (c) spent in his election campaign an amount in excess of thatallowed by this Code; (d) solicited, received or made any contributionprohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any ofSections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph6, shall be disqualified from continuing as a candidate, or if he has beenelected, from holding the office. Any person who is a permanent resident of or

an immigrant to a foreign country shall not be qualified to run for any electiveoffice under this Code, unless said person has waived his status aspermanent resident or immigrant of a foreign country in accordance with theresidence requirement provided for in the election laws. (Emphasis added)

§ 78. Petition to deny due course to or cancel a certificate ofcandidacy . — A verified petition seeking to deny due course or to cancel acertificate of candidacy may be filed by any person exclusively on the groundthat any material representation contained therein as required under Section74 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 bedecided, after due notice and hearing, not later than fifteen days before theelection. (Emphasis added)

the Electoral Reforms Law of 1987 (R.A. No. 6646):

§ 6. Effect of Disqualification Case. — Any candidate who has been declaredby final judgment to be disqualified shall not be voted for , and the votes castfor him shall not be counted. If for any reason a candidate is not declared byfinal judgment before an election to be disqualified and he is voted for andreceives the winning number of votes in such election, the Court orCommission shall continue with the trial and hearing of the action, inquiry orprotest and; upon motion for the complainant or any intervenor, may during

the pendency thereof order the suspension of the proclamation of suchcandidate whenever the evidence of his guilt is strong . (Emphasis added).

§ 7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy . — The procedure hereinabove provided shall apply to petitions to deny duecourse to or cancel a certificate of candidacy as provided in Section 78 ofBatas Pambansa Blg. 881.

8/10/2019 art. vi- SEC 6-9


8/10/2019 art. vi- SEC 6-9


made false representations in their certificates of candidacy with regard totheir citizenship, 1

age, 2 or residence.

3 But in the generality of cases in which this Court passed upon

the qualifications of respondents for office, this Court did so in the context of election protests 4 or quo

warranto proceedings 5filed after the proclamation of the respondents or protestees as winners.

Three reasons may be cited to explain the absence of an authorized proceeding for

determining before election the qualifications of a candidate.

First is the fact that unless a candidate wins and is proclaimed elected, there is no necessityfor determining his eligibility for the office. In contrast, whether an individual should bedisqualified as a candidate for acts constituting election offenses (e.g., vote buying, overspending, commission of prohibited acts) is a prejudicial question which should bedetermined lest he wins because of the very acts for which his disqualification is beingsought. That is why it is provided that if the grounds for disqualification are established, acandidate will not be voted for; if he has been voted for, the votes in his favor will not becounted; and if for some reason he has been voted for and he has won, either he will not beproclaimed or his proclamation will be set aside. 6

Second is the fact that the determination of a candidate's eligibility, e.g., his citizenship or,as in this case, his domicile, may take a long time to make, extending beyond the beginningof 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 residencewas still pending in the COMELEC even after the elections of May 8, 1995. This is contraryto the summary character of proceedings relating to certificates of candidacy. That is whythe law makes the receipt of certificates of candidacy a ministerial duty of the COMELECand its officers. 7

The law is satisfied if candidates state in their certificates of candidacy that they are

eligible for the position which they seek to fill, leaving the determination of their qualifications to be madeafter the election and only in the event they are elected. Only in cases involving charges of falserepresentations made in certificates of candidacy is the COMELEC given jurisdiction.

Third is the policy underlying the prohibition against pre-proclamation cases in elections forPresident, 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 ofRepresentatives Electoral Tribunal and the other Tribunals as "sole judges" under theConstitution of the election, returns and qualifications of members of Congress or of thePresident and Vice President, as the case may be.

By providing in § 253 for the remedy of quo warranto for determining an elected official'squalifications after the results of elections are proclaimed, while being conspicuously silentabout 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 thequalifications of candidates unless they have been elected.

Apparently realizing the lack of an authorized proceeding for declaring the ineligibility ofcandidates, the COMELEC amended its rules on February 15, 1993 so as to provide inRule 25, § 1 the following:

Grounds for disqualification. — Any candidate who does not possess all thequalifications of a candidate as provided for by the Constitution or by existing

8/10/2019 art. vi- SEC 6-9


law or who commits any act declared by law to be grounds for disqualificationmay be disqualified from continuing as a candidate.

The lack of provision for declaring the ineligibility of candidates, however, cannot besupplied by a mere rule. Such an act is equivalent to the creation of a cause of action whichis 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 withholdsfrom the COMELEC even the power to decide cases involving the right to vote, whichessentially involves an inquiry into qualifications based on age, residence and citizenship ofvoters. (Art. IX, C, § 2(3))

The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into groundsfor disqualification is contrary to the evident intention of the law. For not only in theirgrounds but also in their consequences are proceedings for "disqualification" different fromthose for a declaration of "ineligibility." "Disqualification" proceedings, as already stated, arebased on grounds specified in §§ 12 and 68 of the Omnibus Election Code and in § 40 ofthe 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 isto 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 theConstitution or the statutes for holding public office and the purpose of the proceedings fordeclaration of ineligibility is to remove the incumbent from office.

Consequently, that an individual possesses the qualifications for a public office does notimply that he is not disqualified from becoming a candidate or continuing as a candidate fora 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 notimply that he does not suffer from any of disqualifications provided in § 4.

Indeed, provisions for disqualifications on the ground that the candidate is guilty ofprohibited election practices or offenses, like other pre-proclamation remedies, are aimed atthe detestable practice of "grabbing the proclamation and prolonging the electionprotest," 8

through the use of "manufactured" election returns or resort to other trickery for the purpose of

altering the results of the election. This rationale does not apply to cases for determining a candidate'squalifications for office before the election. To the contrary, it is the candidate against whom a proceedingfor disqualification is brought who could be prejudiced because he could be prevented from assumingoffice even though in end he prevails.

To summarize, the declaration of ineligibility of a candidate may only be sought in anelection protest or action for quo warranto filed pursuant to § 253 of the Omnibus ElectionCode within 10 days after his proclamation. With respect to elective local officials (e.g.,Governor, Vice Governor, members of the Sangguniang Panlalawigan, etc.) such petitionmust 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 VicePresident, the petition must be filed with the Presidential Electoral Tribunal (Art. VII, § 4, lastparagraph), and in the case of the Senators, with the Senate Electoral Tribunal, and in thecase 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 disqualificationproceedings based on alleged ineligibility in the case of candidates for President, Vice

8/10/2019 art. vi- SEC 6-9


President, Senators and members of the House of Representatives, because of the samepolicy prohibiting the filing of pre-proclamation cases against such candidates.

For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA No.95-009; that its proceedings in that case, including its questioned orders, are void; and thatthe eligibility of petitioner Imelda Romualdez-Marcos for the office of Representative of theFirst 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 doted April 24, 1995, May 7,1995, May 11, 1995 and May 25, 1995, declaring petitioner Imelda Romualdez-Marcosineligible and ordering her proclamation as Representative of the First District of Leytesuspended. To the extent that Rule 25 of the COMELEC Rules of Procedure authorizesproceedings for the disqualification of candidates on the ground of ineligibility for the office,it should considered void.

The provincial board of canvassers should now proceed with the proclamation of petitioner.

Narvasa, C.J., concurs.

PADILLA, J., dissenting:

I regret that I cannot join the majority opinion as expressed in the well-written ponencia ofMr. Justice Kapunan.

As in any controversy arising out of a Constitutional provision, the inquiry must begin andend with the provision itself. The controversy should not be blurred by what, to me, areacademic disquisitions. In this particular controversy, the Constitutional provision on point

states that — "no person shall be a member of the House of Representatives unless he is anatural-born citizen of the Philippines, and on the day of the election, is at least twenty-five(25) years of age, able to read and write, and except the party list representatives, aregistered voter in the district in which he shall be elected, and a resident thereof for a

period of not less than one year immediately preceding the day of the election." (Article VI,section 6)

It has been argued that for purposes of our election laws, the term residence has beenunderstood as synonymous with domicile. This argument has been validated by no lessthan the Court in numerous cases 1

where significantly the factual circumstances clearly andconvincingly proved that a person does not effectively lose his domicile of origin if the intention to residetherein is manifest with his personal presence in the place, coupled with conduct indicative of such

intention.

With this basic thesis in mind, it would not be difficult to conceive of different modalitieswithin which the phrase "a resident thereof (meaning, the legislative district) for a period ofnot less than one year" would fit.

8/10/2019 art. vi- SEC 6-9


The first instance is where a person's residence and domicile coincide in which case aperson only has to prove that he has been domiciled in a permanent location for not lessthan a year before the election.

A second situation is where a person maintains a residence apart from his domicile in whichcase he would have the luxury of district shopping, provided of course, he satisfies the one-year residence period in the district as the minimum period for eligibility to the position ofcongressional representative for the district.

In either case, one would not be constitutionally disqualified for abandoning his residence inorder to return to his domicile of origin, or better still, domicile of choice; neither would onebe disqualified for abandoning altogether his domicile in favor of his residence in the districtwhere he desires to be a candidate.

The most extreme circumstance would be a situation wherein a person maintains severalresidences in different districts. Since his domicile of origin continues as an option as longas there is no effective abandonment (animus non revertendi ), he can practically choose the

district most advantageous for him.

All these theoretical scenarios, however, are tempered by the unambiguous limitationthat "for a period of not less than one year immediately preceding the day of the election" ,he must be a resident in the district where he desires to be elected.

To my mind, the one year residence period is crucial regardless of whether or not the term"residence" is to be synonymous with "domicile." In other words, the candidate's intent andactual presence in one district must in all situations satisfy the length of time prescribed bythe fundamental law. And this, because of a definite Constitutional purpose. He must befamiliar 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 suchfamiliarity, if not versatility.

In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in thenow assailed decision of the Comelec 2nd Division dated 24 April 1995 (as affirmed by theComelec en banc ) —

In or about 1938 when respondent was a little over 8 years old, sheestablished her domicile in Tacloban, Leyte (Tacloban City). She studied inthe Holy Infant Academy in Tacloban from 1938 to 1948 when she graduatedfrom high school. She pursued her college studies in St. Paul's College, nowDivine Word University of Tacloban, where she earned her degree in

Education. Thereafter, she taught in the Leyte Chinese High School, still inTacloban City. In 1952 she went to Manila to work with her cousin, the lateSpeaker Daniel Z. Romualdez in his office in the House of Representatives.In 1954, she married ex-president Ferdinand Marcos when he was still acongressman of Ilocos Norte. She lived with him in Batac, Ilocos Norte andregistered there as a voter. When her husband was elected Senator of theRepublic in 1959, she and her husband lived together in San Juan, Rizalwhere she registered as a voter. In 1965 when her husband was elected

8/10/2019 art. vi- SEC 6-9


President of the Republic of the Philippines, she lived with him in MalacanangPalace and registered as a voter in San Miguel, Manila.

During the Marcos presidency, respondent served as a Member of theBatasang Pambansa, Minister of Human Settlements and Governor of MetroManila. She claimed that in February 1986, she and her family were abductedand kidnapped to Honolulu, Hawaii. In November 1991, she came home toManila. In 1992 respondent ran for election as President of the Philippinesand filed her Certificate of Candidacy wherein she indicated that she is aresident and registered voter of San Juan, Metro Manila. On August 24, 1994,respondent filed a letter with the election officer of San Juan, Metro Manila,requesting for cancellation of her registration in the Permanent List of Votersin Precinct No. 157 of San Juan, Metro Manila, in order that she may be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. (Annex 2-B, Answer).On August 31, 1994, respondent filed her Sworn Application for Cancellationof Voter's Previous Registration (Annex 2-C, Answer) stating that she is aduly registered voter in 157-A, Brgy. Maytunas, San Juan, Metro that she

intends to register at Brgy. Olot, Tolosa, Leyte.

On January 28, 1995 respondent registered as a voter at Precinct No. 18-A ofOlot, Tolosa, Leyte. She filed with the Board of Election Inspectors CE FormNo. 1, Voter Registration Record No. 94-3349772, wherein she alleged thatshe has resided in the municipality of Tolosa for a period of 6 months (Annex

A, Petition).

On March 8, 1995, respondent filed with the Office of the Provincial ElectionSupervisor, Leyte, a Certificate of Candidacy for the position ofRepresentative of the First District of Leyte wherein she also alleged that shehas been a resident in the constituency where she seeks to be elected for aperiod of 7 months. The pertinent entries therein are as follows:

7. PROFESSION OR OCCUPATION: House-wife/ Teacher/ Social Worker

8. RESIDENCE (complete address): Brgy. Olot,Tolosa, Leyte

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

9. RESIDENCE IN THE CONSTITUENCYWHEREIN I SEEK TO BE ELECTEDIMMEDIATELY PRECEDING ELECTION:

________ Years SevenMonths

10. I AM NOT A PERMANENT RESIDENT OF,OR IMMIGRANT TO, A FOREIGN COUNTRY.

8/10/2019 art. vi- SEC 6-9


THAT I AM ELIGIBLE for said office; That I will support and defend theConstitution of the Republic of the Philippines and will maintain true faith andallegiance thereto; That I will obey the laws, legal orders and decreespromulgated by the duly-constituted authorities; That the obligation imposedby my oath is assumed voluntarily, without mental reservation or purpose ofevasion; and That the facts stated herein are true to the best of myknowledge.

(Sgd.) ImeldaRomualdez-Marcos

(Signature ofCandidate) 2

Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the decisivecomponent 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 electedimmediately preceding the election."

It follows from all the above that the Comelec committed no grave abuse of discretion inholding that petitioner is disqualified from the position of representative for the 1stcongressional district of Leyte in the elections of 8 May 1995, for failure to meet the "notless than one-year residence in the constituency (1st district, Leyte) immediately precedingthe day of election (8 May 1995)."

Having arrived at petitioner's disqualification to be a representative of the first district ofLeyte, the next important issue to resolve is whether or not the Comelec can order theBoard of Canvassers to determine and proclaim the winner out of the remainingqualified candidates for representative in said district.

I am not unaware of the pronouncement made by this Court in the case of Labovs. Comelec , G.R. 86564, August 1, 1989, 176 SCRA 1 which gave the rationale as laiddown in the early 1912 case of Topacio vs. Paredes, 23 Phil. 238 that:

. . . . Sound policy dictates that public elective offices are filled by those whohave 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 onecan be declared elected and no measure can be declared carried unless heor it receives a majority or plurality of the legal votes cast in the election. (20Corpus Juris 2nd, S 243, p. 676)

The fact that the candidate who obtained the highest number of votes is laterdeclared to be disqualified or not eligible for the office to which he waselected does not necessarily entitle the candidate who obtained the secondhighest number of votes to be declared the winner of the elective office. Thevotes cast for a dead, disqualified, or non-eligible person may not be valid tovote the winner into office or maintain him there. However, in the absence ofa statute which clearly asserts a contrary political and legislative policy on thematter, if the votes were cast in the sincere belief that the candidate was

8/10/2019 art. vi- SEC 6-9


alive, qualified, or eligible, they should not be treated as stray, void ormeaningless.

Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System andfor other purposes) (84 O.G. 905, 22 February 1988) it is provided that:

. . . — Any candidate who has been declared by final judgment to bedisqualified shall not be voted for, and the votes cast for him shall not becounted. If for any reason a candidate is not declared by final judgmentbefore an election to be disqualified and he is voted for and receives thewinning number of votes in such election, the Court or Commission shallcontinue with the trial and hearing of the action, inquiry or protest and, uponmotion of the complainant or any intervenor, may, during the pendencythereof order the suspension of the proclamation of such candidate wheneverthe evidence of his guilt is strong.

There is no need to indulge in legal hermeneutics to sense the plain and unambiguous

meaning of the provision quoted above. As the law now stands, the legislative policy doesnot limit its concern with the effect of a final judgement of disqualification only before theelection, but even during or after the election. The law is clear that in all situations, the votescast for a disqualified candidate SHALL NOT BE COUNTED. The law has also validated the

jurisdiction of the Court or Commission on Election to continue hearing the petition fordisqualification in case a candidate is voted for and receives the highest number of votes, iffor any reason, he is not declared by final judgment before an election to be disqualified .

Since the present case is an after election scenario, the power to suspend proclamation(when evidence of his guilt is strong) is also explicit under the law. What happens thenwhen 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 numberof votes.

It stands to reason that Section 6 of RA 6646 does not make the second placer the winnersimply because a "winning candidate is disqualified," but that the law considers him as thecandidate who had obtained the highest number of votes as a result of the votes cast for thedisqualified candidate not being counted or considered.

As this law clearly reflects the legislative policy on the matter, then there is no reason whythis Court should not re-examine and consequently abandon the doctrine in the Jun Labocase. It has been stated that "the qualifications prescribed for elective office cannot beerased 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 theConstitution.

ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board ofCanvassers of Leyte to proclaim the candidate receiving the highest number of votes, fromamong the qualified candidates, as the duly elected representative of the 1st district ofLeyte.

8/10/2019 art. vi- SEC 6-9


Hermosisima, Jr. J., dissent.

REGALADO, J., dissenting:

While I agree with same of the factual bases of the majority opinion, I cannot arriveconjointly at the same conclusion drawn therefrom Hence, this dissent which assuredly isnot formulated "on the basis of the personality of a petitioner in a case."

I go along with the majority in their narration of antecedent facts, insofar as the same arepertinent to this case, and which I have simplified as follows:

1. Petitioner, although born in Manila, resided during her childhood in thepresent Tacloban City, she being a legitimate daughter of parents whoappear to have taken up permanent residence therein. She also went toschool there and, for a time, taught in one of the schools in that city.

2. When she married then Rep. Ferdinand E. Marcos who was then domiciled

in Batac, Ilocos Norte, by operation of law she acquired a new domicile in thatplace in 1954.

3. In the successive years and during the events that happened thereafter,her husband having been elected as a Senator and then as President, shelived with him and their family in San Juan, Rizal and then in MalacanangPalace in San Miguel, Manila.

4. Over those years, she registered as a voter and actually voted in Batac,Ilocos Norte, then in San Juan, Rizal, and also in San Miguel, Manila, allthese merely in the exercise of the right of suffrage.

5. It does not appear that her husband, even after he had assumed thoselofty positions successively, ever abandoned his domicile of origin in Batac,Ilocos Norte where he maintained his residence and invariably voted in allelections.

6. After the ouster of her husband from the presidency in 1986 and thesojourn of the Marcos family in Honolulu, Hawaii, U.S.A., she eventuallyreturned to the Philippines in 1991 and resided in different places which sheclaimed to have been merely temporary residences.

7. In 1992, petitioner ran for election as President of the Philippines and inher certificate of candidacy she indicated that she was then a registered voterand resident of San Juan, Metro Manila.

8. On August 24, 1994, she filed a letter for the cancellation of her registrationin the Permanent List of Voters in Precinct No. 157 of San Juan, Metro Manilain order that she may "be re-registered or transferred to Brgy. Olot, Tolosa,Leyte." On August 31, 1994, she followed this up with her Sworn Applicationfor Cancellation of Voter's Previous Registration wherein she stated that she

8/10/2019 art. vi- SEC 6-9


was a registered voter in Precinct No. 157-A, Brgy. Maytunas, San Juan,Metro Manila and that she intended to register in Brgy. Olot, Tolosa, Leyte.

9. On January 28, 1995, petitioner registered as a voter at Precinct No. 18-Aof Olot, Tolosa, Leyte, for which purpose she filed with the therein Board ofElection Inspectors a voter's registration record form alleging that she hadresided in that municipality for six months.

10. On March 8, 1995, petitioner filed her certificate of candidacy for theposition of Representative of the First District of Leyte wherein she allegedthat she had been a resident for "Seven Months" of the constituency whereshe sought to be elected.

11. On March 29, 1995, she filed an "Amended/Corrected Certificate ofCandidacy" wherein her answer in the original certificate of candidacy to item"8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK, TO BEELECTED IMMEDIATELY PRECEDING THE ELECTION:" was changed or

replaced with a new entry reading "SINCE CHILDHOOD."

The sole issue for resolution is whether, for purposes of her candidacy, petitioner hadcomplied with the residency requirement of one year as mandated by no less than Section6, Article VI of the 1987 Constitution.

I do not intend to impose upon the time of my colleagues with a dissertation on thedifference between residence and domicile. We have had enough of that and I understandthat for purposes of political law and, for that matter of international law, residence isunderstood to be synonymous with domicile. That is so understood in our jurisprudence andin American Law, in contradistinction to the concept of residence for purposes of civil,

commercial and procedural laws whenever an issue thereon is relevant or controlling.

Consequently, since in the present case the question of petitioner's residence is integratedin and inseparable from her domicile, I am addressing the issue from the standpoint of theconcept of the latter term, specifically its permutations into the domicile of origin, domicile ofchoice and domicile by operation of law, as understood in American law from which for thiscase we have taken our jurisprudential bearings.

My readings inform me that the domicile of the parents at the time of birth, or what is termedthe "domicile of origin," constitutes the domicile of an infant until abandoned, or until theacquisition of a new domicile in a different place. 1

In the instant case, we may grant thatpetitioner's domicile of origin,

2 at least as of 1938, was what is now Tacloban City.

Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile bybirth, domicile by choice, and domicile by operation of law. The first is the common case ofthe place of birth or domicilium originis, the second is that which is voluntarily acquired by aparty or domicilium propio motu; the last which is consequential, as that of a wife arisingfrom marriage, 3

is sometimes called domicilium necesarium. There is no debate that the domicile of

origin can be lost or replaced by a domicile of choice or a domicile by operation of law subsequentlyacquired by the party.

8/10/2019 art. vi- SEC 6-9


When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law,not only international or American but of our own enactment, 4

she acquired her husband'sdomicile of origin in Batac, Ilocos Norte and correspondingly lost her own domicile of origin in TaclobanCity.

Her subsequent changes of residence — to San Juan, Rizal, then to San Miguel, Manila,

thereafter to Honolulu, Hawaii, and back to now San Juan, Metro Manila — do not appear tohave resulted in her thereby acquiring new domiciles of choice. In fact, it appears that herhaving resided in those places was by reason of the fortunes or misfortunes of her husbandand his peregrinations in the assumption of new official positions or the loss of them. Herresidence in Honolulu and, of course, those after her return to the Philippines were, as sheclaimed, against her will or only for transient purposes which could not have invested themwith the status of domiciles of choice. 5

After petitioner's return to the Philippines in 1991 and up to the present imbroglio over herrequisite residency in Tacloban City or Olot, Tolosa, Leyte, there is no showing that sheever attempted to acquire any other domicile of choice which could have resulted in the

abandonment of her legal domicile in Batac, Ilocos Norte. On that score, we note themajority's own submission 6 that, to successfully effect a change of domicile, one must demonstrate

(a) an actual removal or an actual change of domicile, (b) a bona fide intention of abandoning the formerplace of residence and establishing a new one, and (c) acts which correspond with the purpose.

We consequently have to also note that these requirements for the acquisition of a domicileof choice apply whether what is sought to be changed or substituted is a domicile of origin(domicilium originis) or a domicile by operation of law (domicilium necesarium). Sincepetitioner had lost her domicilium originis which had been replaced by her domiciliumnecesarium, it is therefore her continuing domicile in Batac, Ilocos Norte which, if at all, canbe the object of legal change under the contingencies of the case at bar.

To get out of this quandary, the majority decision echoes the dissenting opinion ofCommissioner Regalado E. Maambong in SPA 95-009 of the Commission onElections, 7 and advances this novel proposition.

It may be said that petitioner lost her domicile of origin by operation of law asa result of her marriage to the late President Ferdinand E. Marcos in 1952(sic , 1954). By operation of law (domicilium necesarium), her legal domicile atthe time of her marriage became Batac, Ilocos Norte although there were noindications of an intention on her part to abandon her domicile of origin.Because of her husband's subsequent death and through the operation of theprovisions of the New Family Code already in force at the time, however, herlegal domicile automatically reverted to her domicile of origin. . . . (Emphasissupplied).

Firstly, I am puzzled why although it is conceded that petitioner had acquired a domiciliumnecesarium in Batac, Ilocos Norte, the majority insists on making a qualification that she didnot intend to abandon her domicile of origin. I find this bewildering since, in this situation, itis the law that declares where petitioner's domicile is at any given time, and not her self-serving or putative intent to hold on to her former domicile. Otherwise, contrary to their ownadmission that one cannot have more than one domicile at a time, 8

the majority would be

8/10/2019 art. vi- SEC 6-9


suggesting that petitioner retained Tacloban City as (for lack of a term in law since it does not existtherein) the equivalent of what is fancied as a reserved, dormant, potential, or residual domicile.

Secondly, domicile once lost in accordance with law can only be recovered likewise inaccordance with law. However, we are here being titillated with the possibility of anautomatic 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 herdomicile of origin by her marriage, the termination of the marriage also terminates that effectthereof. 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 eitherthe logic or the validity of this argument.

If a party loses his domicile of origin by obtaining a new domicile of choice, hethereby voluntarily abandons the former in favor of the latter. If, thereafter, he abandons thatchosen domicile, he does not per se recover his original domicile unless, by subsequentacts legally indicative thereof, he evinces his intent and desire to establish the same as hisnew 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 hisdomicile of origin, not only because there is no legal authority therefor but because it wouldbe absurd Pursued to its logical consequence, that theory of ipso jure reversion would ruleout the fact that said party could already very well have obtained another domicile, either ofchoice or by operation of law, other than his domicile of origin. Significantly and obviouslyfor this reason, the Family Code, which the majority inexplicably invokes, advisedly does notregulate this contingency since it would impinge on one's freedom of choice.

Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice(unless we assume that she entered into the marital state against her will) but, on top of

that, such abandonment was further affirmed through her acquisition of a new domicileby operation of law . In fact, this is even a case of both voluntary and legal abandonment of adomicile of origin. With much more reason, therefore, should we reject the proposition thatwith the termination of her marriage in 1989, petitioner had supposedly per se and ipsofacto reacquired her domicile of origin which she lost in 1954. Otherwise, this would betantamount to saying that during the period of marital coverture, she was simultaneously inpossession and enjoyment of a domicile of origin which was only in a state of suspendedanimation.

Thus, the American rule is likewise to the effect that while after the husband's death the wifehas the right to elect her own domicile, 9

she nevertheless retains the last domicile of her deceased

husband until she makes an actual change.

10

In the absence of affirmative evidence, to the contrary, thepresumption is that a wife's domicile or legal residence follows that of her husband and will continue afterhis death.

11

I cannot appreciate the premises advanced in support of the majority's theory based on Articles 68 and 69 of the Family Code. All that is of any relevance therein is that under thisnew code, the right and power to fix the family domicile is now shared by the spouses. Icannot perceive how that joint right, which in the first place was never exercised by thespouses, could affect the domicile fixed by the law for petitioner in 1954 and, for her

8/10/2019 art. vi- SEC 6-9


husband, long prior thereto. It is true that a wife now has the coordinate power to determinethe conjugal or family domicile, but that has no bearing on this case. With the death of herhusband, and each of her children having gotten married and established their ownrespective domiciles, the exercise of that joint power was and is no longer called for ormaterial in the present factual setting of this controversy. Instead, what is of concern inpetitioner's case was the matter of her having acquired or not her own domicile of choice.

I agree with the majority's discourse on the virtues of the growing and expandedparticipation of women in the affairs of the nation, with equal rights and recognition byConstitution and statutory conferment. However, I have searched in vain for a specific lawor judicial pronouncement which either expressly or by necessary implication supports themajority's desired theory of automatic reacquisition of or reversion to the domiciliumoriginis of petitioner. Definitely, as between the settled and desirable legal norms thatshould govern this issue, there is a world of difference; and, unquestionably, this should beresolved by legislative articulation but not by the eloquence of the well-turned phrase.

In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and not

having automatically reacquired any domicile therein, she cannot legally claim that herresidency in the political constituency of which it is a part continued since her birth up to thepresent. Respondent commission was, therefore, correct in rejecting her pretension to thateffect in her amended/corrected certificate of candidacy, and in holding her to her admissionin the original certificate that she had actually resided in that constituency for only sevenmonths prior to the election. These considerations render it unnecessary to further passupon the procedural issues raised by petitioner.

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

DAVIDE, JR., J., dissenting:

I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M.Kapunan, more particularly on the issue of the petitioner's qualification.

Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or rulings ofthe COMELEC may be brought to this Court only by the special civil actionfor certiorari under Rule 65 of the Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251[1979]; Dario vs. Mison, 176 SCRA 84 [1989]).

Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without or inexcess of jurisdiction or with grave abuse of discretion (Section 1, Rule 65, Rules of Court).Since the COMELEC has, undoubtedly, jurisdiction over the private respondent's petition,

the only issue left is whether it acted with grave abuse of discretion in disqualifying thepetitioner.

My careful and meticulous perusal of the challenged resolution of 24 April 1995 of theCOMELEC Second Division and the En Banc resolution of 7 May 1995 discloses totalabsence of abuse of discretion, much less grave abuse thereof. The resolution of theSecond Division dispassionately and objectively discussed in minute details the facts whichestablished beyond cavil that herein petitioner was disqualified as a candidate on the

8/10/2019 art. vi- SEC 6-9


ground of lack of residence in the First Congressional District of Leyte. It has notmisapplied, miscomprehended, or misunderstood facts or circumstances of substancepertinent to the issue of her residence.

The majority opinion, however, overturned the COMELEC's findings of fact for lack of proofthat the petitioner has abandoned Tolosa as her domicile of origin, which is allegedly withinthe First Congressional District of Leyte.

I respectfully submit that the petitioner herself has provided the COMELEC, either byadmission or by documentary evidence, overwhelming proof of the loss or abandonment ofher domicile of origin, which is Tacloban City and not Tolosa, Leyte. Assuming that shedecided 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 FirstCongressional District of Leyte. A holding to the contrary would be arbitrary.

It may indeed be conceded that the petitioner's domicile of choice was either Tacloban City

or Tolosa, Leyte. Nevertheless, she lost it by operation of law sometime in May 1954 uponher marriage to the then Congressman (later, President) Ferdinand E. Marcos. A domicileby operation of law is that domicile which the law attributes to a person, independently of hisown intention or actual residence, as results from legal domestic relations as that of the wifearising from marriage (28 C.J.S. Domicile § 7, 11). Under the governing law then, Article110 of the Civil Code, her new domicile or her domicile of choice was the domicile of herhusband, which was Batac, Ilocos Norte. Said Article reads as follows:

Art. 110. The husband shall fix the residence of the family. But the court mayexempt the wife from living with the husband if he should live abroad unlessin the service of the Republic.

Commenting thereon, civilist Arturo M. Tolentino states:

Although the duty of the spouses to live together is mutual, the husband hasa predominant right because he is empowered by law to fix the familyresidence. This right even predominates over some rights recognized by lawin the wife. For instance, under article 117 the wife may engage in businessor practice a profession or occupation. But because of the power of thehusband to fix the family domicilehe may fix it at such a place as would makeit impossible for the wife to continue in business or in her profession. For

justifiable reasons, however, the wife may be exempted from living in theresidence chosen by the husband. The husband cannot validly allege

desertion by the wife who refuses to follow him to a new place of residence,when it appears that they have lived for years in a suitable home belonging tothe wife, and that his choice of a different home is not made in good faith.(Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 1,1985 ed., 339).

Under common law, a woman upon her marriage loses her own domicile and, by operationof law, acquires that of her husband, no matter where the wife actually lives or what she

8/10/2019 art. vi- SEC 6-9


believes or intends. Her domicile is fixed in the sense that it is declared to be the same ashis, and subject to certain limitations, he can change her domicile by changing his own (25

Am Jur 2d Domicile § 48, 37).

It must, however, be pointed out that under Article 69 of the Family Code, the fixing of thefamily domicile is no longer the sole prerogative of the husband, but is now a joint decisionof the spouses, and in case of disagreement the court shall decide. The said article usesthe term "family domicile," and not family residence, as "the spouses may have multipleresidences, and the wife may elect to remain in one of such residences, which may destroythe duty of the spouses to live together and its corresponding benefits" (ALICIA V. SEMPIO-DIY, Handbook on the Family Code of the Philippines, [1988], 102).

The theory of automatic restoration of a woman's domicile of origin upon the death of herhusband, which the majority opinion adopts to overcome the legal effect of the petitioner'smarriage on her domicile, is unsupported by law and by jurisprudence. The settled doctrineis that after the husband's death the wife has a right to elect her own domicile, but sheretains 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 herown domicile is revived, but until she exercises the power her domicile remains that of thehusband at the time of his death (25 Am Jur 2d Domicile § 62, 45). Note that what is revivedis not her domicile of origin but her power to acquire her own domicile.

Clearly, even after the death of her husband, the petitioner's domicile was that of herhusband at the time of his death — which was Batac, Ilocos Norte, since their residences inSan Juan, Metro Manila, and San Miguel, Manila, were their residences for convenience toenable her husband to effectively perform his official duties. Their residence in San Juanwas a conjugal home, and it was there to which she returned in 1991 when she was alreadya widow. In her sworn certificate of candidacy for the Office of the President in thesynchronized elections of May 1992, she indicated therein that she was a resident of SanJuan, Metro Manila. She also voted in the said elections in that place.

On the basis of her evidence, it was only on 24 August 1994 when she exercised her rightas a widow to acquire her own domicile in Tolosa, Leyte, through her sworn statementrequesting the Election Officer of San Juan, Metro Manila, to cancel her registration in thepermanent list of voters in Precinct 157 thereat and praying that she be "re-registered ortransferred to Brgy. Olot, Tolosa, Leyte, the place of [her] birth and permanent residence"(photocopy of Exhibit "B," attached as Annex "2" of private respondent Montejo'sComment). Notably, she contradicted this sworn statement regarding her place of birthwhen, in her Voter's Affidavit sworn to on 15 March 1992 (photocopy of Exhibit "C,"attached as Annex "3," Id .), her Voter Registration Record sworn to on 28 January 1995

(photocopy of Exhibit "E," attached as Annex "5," Id .), and her Certificate of Candidacysworn to on 8 March 1995 (photocopy of Exhibit "A," attached as Annex "1," Id .), shesolemnly declared that she was born in Manila.

The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa,Leyte? In the affidavit attached to her Answer to the petition for disqualification (Annex "I" ofPetition), she declared under oath that her "domicile or residence is Tacloban City." If shedid intend to return to such domicile or residence of origin why did she inform the Election

8/10/2019 art. vi- SEC 6-9


Officer of San Juan that she would transfer to Olot, Tolosa, Leyte, and indicate in herVoter's Registration Record and in her certificate of candidacy that her residence is Olot,Tolosa, Leyte? While this uncertainty is not important insofar as residence in thecongressional district is concerned, it nevertheless proves that forty-one years had alreadylapsed since she had lost or abandoned her domicile of origin by virtue of marriage and thatsuch length of time diminished her power of recollection or blurred her memory.

I find to be misplaced the reliance by the majority opinion on Faypon vs. Quirino (96 Phil.294 [1954]), and the subsequent cases which established the principle that absence fromoriginal residence or domicile of origin to pursue studies, practice one's profession, orengage in business in other states does not constitute loss of such residence or domicile.So is the reliance on Section 117 of the Omnibus Election Code which provides that transferof residence to any other place by reason of one's "occupation; profession; employment inprivate 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; orconfinement or detention in government institutions in accordance with law" is not deemedas 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 werethe intention of this Court or of the legislature to consider the marriage of a woman as acircumstance which would not operate as an abandonment of domicile (of origin or ofchoice), then such cases and legal provision should have expressly mentioned the same.

This Court should not accept as gospel truth the self-serving claim of the petitioner in heraffidavit (Annex "A" of her Answer in COMELEC SPA No. 95-009; Annex "I" of Petition) thather "domicile or residence of origin is Tacloban City," and that she "never intended toabandon this domicile or residence of origin to which [she] always intended to returnwhenever absent." Such a claim of intention cannot prevail over the effect of Article 110 ofthe Civil Code. Besides, the facts and circumstances or the vicissitudes of the petitioner'slife after her marriage in 1954 conclusively establish that she had indeed abandoned herdomicile of origin and had acquired a new one animo et facto (KOSSUTH KENT KENNAN,

A Treatise on Residence and Domicile, [1934], 214, 326).

Neither should this Court place complete trust on the petitioner's claim that she "merelycommitted an honest mistake" in writing down the word "seven" in the space provided forthe 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 signifyingnothing. To me, she did not commit any mistake, honest or otherwise; what she stated wasthe truth.

The majority opinion also disregards a basic rule in evidence that he who asserts a fact or

the affirmative of an issue has the burden of proving it (Imperial Victory Shipping Agency vs.NLRC, 200 SCRA 178 [1991]; P.T. Cerna Corp. vs. Court of Appeals, 221 SCRA 19[1993]). Having admitted marriage to the then Congressman Marcos, the petitioner couldnot deny the legal consequence thereof on the change of her domicile to that of herhusband. 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 automaticallybecame Batac, Ilocos Norte." That conclusion is consistent with Article 110 of the CivilCode. Since she is presumed to retain her deceased husband's domicile until she exercises

8/10/2019 art. vi- SEC 6-9


her revived power to acquire her own domicile, the burden is upon her to prove that she hasexercised her right to acquire her own domicile. She miserably failed to discharge thatburden.

I vote to deny the petition.

AGAPITO A. AQUINO, petitioner,vs.COMMISSION ON ELECTIONS, MOVE MAKATI, MATEO BEDON and JUANITOICARO, respondents.

KAPUNAN, J.:

The sanctity of the people's will must be observed at all times if our nascent democracy is tobe 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 whichwould give effect to the will of the majority, for sound public policy dictates that all electiveoffices are filled by those who have received the highest number of votes cast in anelection. When a challenge to a winning candidate's qualifications however becomesinevitable, the ineligibility ought to be so noxious to the Constitution that giving effect to theapparent 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 theposition of Representative for the new Second Legislative District of Makati City. Amongothers, 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 BEELECTED IMMEDIATELY PRECEDING THE ELECTION: ______ Yearsand 10 Months.

xxx xxx xxx

THAT I AM ELIGIBLE for said Office; That I will support and defend theConstitution of the Republic of the Philippines and will maintain true faith andallegiance thereto; That I will obey the law, rules and decrees promulgated bythe duly constituted authorities; That the obligation imposed to such isassumed voluntarily, without mental reservation or purpose of evasion, andthat 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

8/10/2019 art. vi- SEC 6-9


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 aperiod not less than one (1) year immediately preceding the May 8, 1995 elections. The petition wasdocketed 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 filedanother 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 hesought to be elected for one (l) year and thirteen (13) days. 3

On May 2, 1995, petitioner filed his Answer dated April 29, 1995 praying for the dismissal ofthe disqualification case. 4

On the same day, May 2, 1995, a hearing was conducted by the COMELEC whereinpetitioner 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 28,1995 7 and Affidavit of Daniel Galamay dated April 28, 1995.

8

After hearing of the petition for disqualification, the Second Division of the COMELECpromulgated 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 againstrespondent AGAPITO AQUINO and declares him ELIGIBLE to run for theOffice 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 theMay 6, 1995 resolution with the COMELEC en banc .

Meanwhile, on May 8, 1995, elections were held. In Makati City where three (3) candidatesvied for the congressional seat in the Second District, petitioner garnered thirty eightthousand five hundred forty seven (38,547) votes as against another candidate, AgustoSyjuco, 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 AdCautelum to Suspend Proclamation of petitioner. Thereafter, they filed an Omnibus Motionfor Reconsideration of the COMELEC's Second Division resolution dated May 6, 1995 and

a 2nd Urgent Motion Ad Cautelum to Suspend Proclamation of petitioner.

On May 15, 1995, COMELEC en banc issued an Order suspending petitioner'sproclamation. 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 tocomplete the canvassing of election returns of the Second District of Makati,but to suspend the proclamation of respondent Agapito A. Aquino should he

8/10/2019 art. vi- SEC 6-9


obtain the winning number of votes for the position of Representative of theSecond District of the City of Makati, until the motion for reconsideration filedby the petitioners on May 7, 1995, shall have been resolved by theCommission.

The Executive Director, this Commission, is directed to cause the immediateimplementation of this Order. The Clerk of Court of the Commission islikewise directed to inform the parties by the fastest means available of thisOrder, and to calendar the hearing of the Motion for Reconsideration on May17, 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 ofsuspension 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 hemanifested his intention to raise, among others, the issue of whether of not thedetermination of the qualifications of petitioner after the elections is lodged exclusively in theHouse of Representatives Electoral Tribunal pursuant to Section 17, Article VI of the 1987Constitution.

Resolving petitioner's motion to lift suspension of his proclamation, the COMELEC enbanc issued an Order on June 2, 1995, the decretal portion thereof residing:

Pursuant to the said provisions and considering the attendant circumstancesof the case, the Commission RESOLVED to proceed with the promulgation

but to suspend its rules, to accept the filing of the aforesaid motion, and toallow the parties to be heard thereon because the issue of jurisdiction nowbefore 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 theresolution of the Second Division dated May 6, 1995. The fallo reads as follows:

WHEREFORE, in view of the foregoing, petitioners' Motion forReconsideration of the Resolution of the Second Division, promulgated onMay 6, 1995, is GRANTED. Respondent Agapito A. Aquino is declaredineligible 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, theorder of suspension of proclamation of the respondent should he obtain thewinning number of votes, issued by this Commission on May 15, 1995 is nowmade permanent.

Upon the finality of this Resolution, the Board of Canvassers of the City ofMakati shall immediately reconvene and, on the basis of the completed

8/10/2019 art. vi- SEC 6-9


canvass of election returns, determine the winner out of the remainingqualified 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's raisesthe following errors for consideration, to wit:

A

THE COMELEC HAS NO JURISDICTION TO DETERMINE AND ADJUDGETHE DISQUALIFICATION ISSUE INVOLVING CONGRESSIONALCANDIDATES AFTER THE MAY 8, 1995 ELECTIONS, SUCHDETERMINATION BEING RESERVED TO AND LODGE EXCLUSIVELYWITH THE HOUSE OF REPRESENTATIVE ELECTORAL TRIBUNAL

B

ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, SAIDJURISDICTION CEASED IN THE INSTANT CASE AFTER THEELECTIONS, AND THE REMEDY/IES AVAILABLE TO THE ADVERSEPARTIES LIE/S IN ANOTHER FORUM WHICH, IT IS SUBMITTED, IS THEHRET CONSISTENT WITH SECTION 17, ARTICLE VI OF THE 1987CONSTITUTION

C

THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN ITPROCEEDED TO PROMULGATE ITS QUESTIONED DECISION (ANNEX"C", PETITION) DESPITE IT OWN RECOGNITION THAT A THRESHOLDISSUE OF JURISDICTION HAS TO BE JUDICIOUSLY REVIEWED AGAIN,

ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, THECOMELEC COMMITTED GRAVE ABUSE OF DISCRETION, AND SERIOUSERROR IN DIRECTING WITHOUT NOTICE THE SUSPENSION OF THEPROCLAMATION OF THE PETITIONER AS THE WINNINGCONGRESSIONAL CANDIDATE AND DESPITE THE MINISTERIALNATURE OF SUCH DUTY TO PROCLAIM (PENDING THE FINALITY OFTHE DISQUALIFICATION CASE AGAINST THE PETITIONER) IF ONLYNOT TO THWART THE PEOPLE'S WILL.

D

THE COMELEC'S FINDING OF NON-COMPLIANCE WITH THERESIDENCY REQUIREMENT OF ONE YEAR AGAINST THE PETITIONERIS CONTRARY TO EVIDENCE AND TO APPLICABLE LAWS ANDJURISPRUDENCE.

8/10/2019 art. vi- SEC 6-9


E

IN ANY CASE, THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE LEGAL IMPOSSIBILITY OF ENFORCING THE ONEYEAR RESIDENCY REQUIREMENT OF CONGRESSIONAL CANDIDATESIN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE ONLYEXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTION

AND BARELY FOUR MONTHS IN THE CASE OF PETITIONER'S DISTRICTIN MAKATI OF CONGRESSIONAL.

F

THE COMELEC COMMITTED SERIOUS ERROR AMOUNTING TO LACKOF JURISDICTION WHEN IT ORDERED THE BOARD OF CANVASSERSTO "DETERMINE AND PROCLAIM THE WINNER OUT OF THEREMAINING QUALIFIED CANDIDATES" AFTER THE ERRONEOUSDISQUALIFICATION OF YOUR PETITIONER IN THAT SUCH DIRECTIVE

IS IN TOTAL DISREGARD OF THE WELL SETTLED DOCTRINE THAT ASECOND PLACE CANDIDATE OR PERSON WHO WAS REPUDIATED BYTHE ELECTORATE IS A LOSER AND CANNOT BE PROCLAIMED ASSUBSTITUTEWINNER. 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'squalifications 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 RepresentativesElectoral Tribunal (HRET). Given the yet unresolved question of jurisdiction, petitioner aversthat the COMELEC committed serious error and grave abuse of discretion in directing thesuspension of his proclamation as the winning candidate in the Second CongressionalDistrict of Makati City. We disagree.

Petitioner conveniently confuses the distinction between an unproclaimed candidate to theHouse of Representatives and a member of the same. Obtaining the highest number ofvotes 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 allcontests relative to the election, returns and qualifications of candidates for either theSenate or the House only when the latter becomemembers of either the Senate or theHouse of Representatives. A candidate who has not been proclaimed 16

and who has not takenhis oath of office cannot be said to be a member of the House of Representatives subject to Section. 17

8/10/2019 art. vi- SEC 6-9


of the Constitution. While the proclamation of a winning candidate in an election is ministerial, B.P. 881 inconjunction with Sec 6 of R.A. 6646 allows suspension of proclamation under circumstances mentionedtherein. Thus, petitioner's contention that "after the conduct of the election and (petitioner) has beenestablished the winner of the electoral exercise from the moment of election, the COMELEC isautomatically divested of authority to pass upon the question of qualification" finds no basis, becauseeven after the elections the COMELEC is empowered by Section 6 (in relation to Section 7) of R.A. 6646to continue to hear and decide questions relating to qualifications of candidates Section 6 states:

Sec. 6. Effect of Disqualification Case. — Any candidate, who has beendeclared by final judgment to be disqualified shall not be voted for, and thevotes cast for him shall not be counted. If for any reason a candidate is notdeclared by final judgment before an election to be disqualified and he isvoted for and receives the winning number of votes in such election, theCourt or Commission shall continue with the trial and hearing of the action,inquiry or protest and, upon motion of the complainant or any intervenor, mayduring the pendency thereof order the suspension of the proclamation of suchcandidate whenever the evidence of guilt is strong.

Under the above-quoted provision, not only is a disqualification case against a candidateallowed 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 terminationof the proceedings against him when the evidence of guilt is strong. While the phrase "whenthe evidence of guilt is strong" seems to suggest that the provisions of Section 6 ought to beapplicable 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 casesinvolving disqualification based on ineligibility under Section 78 of B.P. 881. Section 7states:

Sec. 7. Petition to Deny Due Course or to Cancel a Certificate of Candidacy .

— The procedure hereinabove provided shall apply to petition to deny duecourse to or cancel a certificate of candidacy based on Sec. 78 of BatasPambansa 881.

II

We agree with COMELEC's contention that in order that petitioner could qualify as acandidate for Representative of the Second District of Makati City the latter "must prove thathe has established not just residence but domicile of choice. 17

The Constitution requires that a person seeking election to the House of Representativesshould be a resident of the district in which he seeks election for a period of not less than

one (l) year prior to the elections. 18 Residence, for election law purposes, has a settled meaning inour 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 previousConstitutions but also under the 1987 Constitution. The Court there held:

20

8/10/2019 art. vi- SEC 6-9


The deliberations of the Constitutional Commission reveal that the meaning ofresidence vis-a-vis the qualifications of a candidate for Congress continues toremain the same as that of domicile, to wit:

Mr. Nolledo: With respect to Section 5, I remember that in the1971 Constitutional Convention, there was an attempt torequire residence in the place not less than one yearimmediately preceding the day of elections. So my question is:What is the Committee's concept of domicile or constructiveresidence?

Mr. Davide: Madame President, insofar as the regularmembers of the National Assembly are concerned, theproposed section merely provides, among others, and aresident thereof', that is, in the district, for a period of not lessthan one year preceding the day of the election. This was ineffect lifted from the 1973 Constitution, the interpretation given

to it was domicile (emphasis ours) Records of the 1987Constitutional Convention, Vol. II, July 22, 1986, p. 87).

xxx xxx xxx

Mrs. Rosario Braid: The next question is on section 7, page 2. Ithink Commissioner Nolledo has raised the same point that"resident" has been interpreted at times as a matter of intentionrather than actual residence.

Mr. De Los Reyes: Domicile.

Ms. Rosario Braid: Yes, So, would the gentlemen consider atthe proper time to go back to actual residence rather than mereintention to reside?

Mr. De los Reyes: But We might encounter some difficultyespecially considering that the provision in the Constitution inthe Article on Suffrage says that Filipinos living abroad mayvote as enacted by law. So, we have to stick to the originalconcept that it should be by domicile and not physical andactual residence. (Records of the 1987 ConstitutionalCommission, Vol. II, July 22, 1986, p. 110).

The framers of the Constitution adhered to the earlier definition given to theword "residence" which regarded it as having the same meaning as domicile.

Clearly, the place "where a party actually or constructively has his permanenthome," 21

where he, no matter where he may be found at any given time, eventually intends to returnand remain, i .e., his domicile, is that to which the Constitution refers when it speaks of residence for thepurposes of election law. The manifest purpose of this deviation from the usual conceptions of residency

8/10/2019 art. vi- SEC 6-9


in law as explained in Gallego vs. Vera at22

is "to exclude strangers or newcomers unfamiliar with theconditions and needs of the community" from taking advantage of favorable circumstances existing in thatcommunity for electoral gain. While there is nothing wrong with the practice of establishing residence in agiven 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 aparticular 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 areafor 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 petitioneractually was a resident for a period of one year in the area now encompassed by the Second LegislativeDistrict of Makati at the time of his election or whether or not he was domiciled in the same.

As found by the COMELEC en banc petitioner in his Certificate of Candidacy for the May11, 1992 elections, indicated not only that he was a resident of San Jose, Concepcion,Tarlac in 1992 but that he was a resident of the same for 52 years immediately precedingthat 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 Benignoand 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 this 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 leaseagreement of condominium unit in the area. As the COMELEC, in its disputed Resolutionnoted:

The intention not to establish a permanent home in Makati City is evident inhis leasing a condominium unit instead of buying one. While a lease contractmaybe indicative of respondent's intention to reside in Makati City it does notengender the kind of permanency required to prove abandonment of one'soriginal 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 foronly one (l) year because he has other "residences" in Manila or QuezonCity . 26

While property ownership is not and should never be an indicia of the right to vote or to bevoted upon, the fact that petitioner himself claims that he has other residences in MetroManila coupled with the short length of time he claims to be a resident of the condominiumunit in Makati (and the fact, of his stated domicile in Tarlac) "indicate that the sole purposeof (petitioner) in transferring his physical residence" 27

is not to acquire's new residenceor domicile "but only to qualify as a candidate for Representative of the Second District of MakatiCity."

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'sclaim of residency for the period required by the Constitution, in the Second District of Makati. As theCOMELEC en banc emphatically pointed out:

[T]he lease agreement was executed mainly to support the one yearresidence requirement as a qualification for a candidate of Representative, byestablishing a commencement date of his residence. If a perfectly valid lease

8/10/2019 art. vi- SEC 6-9


agreement cannot, by itself establish; a domicile of choice, this particularlease agreement cannot do better . 29

Moreover, his assertion that he has transferred his domicile from Tarlac to Makati is a bareassertion which is hardly supported by the facts in the case at bench. Domicile of origin isnot easily lost. To successfully effect a change of domicile, petitioner must prove an actualremoval or an actual change of domicile; a bona fide intention of abandoning the formerplace of residence and establishing a new one and definite acts which correspond with thepurpose. 30

These requirements are hardly met by the evidence adduced in support of petitioner's claimsof a change of domicile from Tarlac to the Second District of Makati. In the absence of clear and positiveproof, the domicile of origin be deemed to continue requirements are hardly met by the evidence adducedin support of petitioner's claims of a change of domicile from Tarlac to the Second District of Makati. In theabsence 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 yearresidency requirement in a newly created political district is specious and lacks basis inlogic. A new political district is not created out of thin air. It is carved out from part of a realand existing geographic area, in this case the old Municipality of Makati. That peopleactually lived or were domiciled in the area encompassed by the new Second Districtcannot be denied. Modern-day carpetbaggers cannot be allowed take advantage of thecreation of new political districts by suddenly transplanting themselves in such new districts,prejudicing their genuine residents in the process of taking advantage of existing conditionsin these areas. It will be noted, as COMELEC did in its assailed resolution, that petitionerwas disqualified from running in the Senate because of the constitutional two-term limit, andhad 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 residencefor 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 it Order instructing theBoard of Canvassers of Makati City to proclaim as winner the candidate receiving the nexthigher number of votes. The answer must be in the negative.

To contend that Syjuco should be proclaimed because he was the "first" among thequalified candidates in the May 8, 1995 elections is to misconstrue the nature of thedemocratic electoral process and the sociological and psychological underpinnings behindvoters' preferences. The result suggested by private respondent would lead not only to ourreversing 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 theybelieved 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 acrimonywhich attended the campaign, would not have automatically gone to second placer Syjuco. The nature ofthe playing field would have substantially changed. To simplistically assume that the second placer wouldhave received the other votes would be to substitute our judgment for the mind of the voter. The secondplacer is just that, a second placer. He lost the elections. He was repudiated by either a majority orplurality of voters. He could not be considered the first among qualified candidates because in a fieldwhich excludes the disqualified candidate, the conditions would have substantially changed. We are notprepared to extrapolate the results under such circumstances.

8/10/2019 art. vi- SEC 6-9


In these cases, the pendulum of judicial opinion in our country has swung from one end tothe other. In the early case of Topacio v . Paredes. 32

we declared as valid, votes cast in favor of a

disqualified, ineligilble or dead candidate provided the people who voted for such candidate believed ingood faith that at the time of the elections said candidate was either qualified, eligible or alive. The votescast in favor of a disqualified, ineligible or dead candidate who obtained the next higher number of votescannot be proclaimed as winner. According to this Court in the said case, "there is not, strictly speaking, a

contest, that wreath of victory cannot be transferred from an ineligible candidate to any other candidatewhen 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 inthe canvassing of election returns and the votes fall into the category of invalid and nonexistent votesbecause a disqualified candidate is no candidate at all and is not a candidate in the eyes of the law. As aresult, 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 portion isineligible. We held in Geronimo:

[I]t would be extremely repugnant to the basic concept of the constitutionallyguaranteed right to suffrage if a candidate who has not acquired the majorityor plurality of votes is proclaimed a winner and imposed as the representativeof a constituency, the majority of which have positively declared through theirballots that they do not choose him.

Sound policy dictates that public elective offices are filled by those who havereceived the highest number of votes cast in the election for that office, and itis fundamental idea in all republican forms of government that no one can bedeclared elected and no measure can be declared carried unless he or itreceives 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 ornon-existent votes because a disqualified candidate is no candidate at all in the eyes of the law," revertingto 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 in Topacio v . Paredes and Geronimov . Ramos to the effect that the ineligibility of a candidate receiving the next higher number of votes to bedeclared elected, and that a minority or defeated candidate cannot be declared elected to the office. Inthese cases, we put emphasis on our pronouncement in Geronimo v . Ramosthat:

The fact that a candidate who obtained the highest number of votes is laterdeclared to be disqualified or not eligible for the office to which he waselected does not necessarily entitle the candidate who obtained the secondhighest number of votes to be declared the winner of the elective office. Thevotes cast for a dead, disqualified, or non-eligible person may be valid to votethe winner into office or maintain him there. However, in the absence of astatute which clearly asserts a contrary political and legislative policy on the

8/10/2019 art. vi- SEC 6-9


matter, if the votes were cast in sincere belief 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 theoffice of city mayor, the fact remains that he was not the choice of thesovereign will. Petitioner Labo was overwhelmingly voted by the electorate forthe office of mayor in the belief that he was then qualified to serve the peopleof Baguio City and his subsequent disqualification does not make respondentOrtega the mayor-elect. This is the import of the recent case of Abellav . Comelec (201 SCRA 253 [1991]), wherein we held that:

While it is true that SPC No. 88-546 was originally a petition todeny due course to the certificate of candidacy of Larrazabaland was filed before Larrazabal could be proclaimed the factremains that the local elections of Feb. 1, 1988 in the province

of Leyte proceeded with Larrazabal considered as a bona fidecandidate. The voters of the province voted for her in thesincere belief that she was a qualified candidate for the positionof governor . Her votes was counted and she obtained thehighest number of votes. The net effect is that petitioner lost inthe election. He was repudiated by the electorate. . . Whatmatters is that in the event a candidate for an elected positionwho is voted for and who obtains the highest number of votesis disqualified for not possessing the eligibility, requirements atthe time of the election as provided by law, the candidate whoobtains the second highest number of votes for the same

position cannot assume the vacated position. (Emphasissupplied).

Our ruling in Abella applies squarely to the case at bar and we see nocompelling reason to depart therefrom. Like Abella, petitioner Ortega lost inthe election. He was repudiated by the electorate. He was obviously not thechoice of the people of Baguio City.

Thus, while respondent Ortega (G.R. No. 105111) originally filed adisqualification case with the Comelec (docketed as SPA-92-029) seeking todeny due course to petitioner's (Labo's) candidacy, the same did not deter thepeople of Baguio City from voting for petitioner Labo, who, by then, was

allowed by the respondent Comelec to be voted upon, the resolution for hisdisqualification having yet to attain the degree of finality (Sec. 78, OmnibusElection Code).

And in the earlier case of Labo v . Comelec . (supra), We held:

Finally, there is the question of whether or not the privaterespondent, who filed the quo warranto petition, can replace

8/10/2019 art. vi- SEC 6-9


the petitioner as mayor. He cannot. The simple reason is thatas he obtained only the second highest number of votes in theelection, he was obviously not the choice of the people ofBaguio City.

The latest ruling of the Court in this issue is Santosv . Commission on Election, (137 SCRA 740) decided in 1985.In that case, the candidate who placed second was proclaimedelected after the votes for his winning rival, who wasdisqualified as a turncoat and considered a non-candidate,were all disregarded as stray. In effect, the second placer wonby default. That decision was supported by eight members ofthe 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 anothertwo 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 bereversed in favor of the earlier case of Geronimo v . Santos (136 SCRA 435),which represents the more logical and democratic rule. That case, whichreiterated the doctrine first announced in 1912 in Topacio vs.Paredes (23Phil. 238) was supported by ten members of the Court. . . .

The rule, therefore, is: the ineligibility of a candidate receiving majority votesdoes not entitle the eligible candidate receiving the next highest number ofvotes to be declared elected. A minority or defeated candidate cannot bedeemed elected to the office.

Indeed, this has been the rule in the United States since 1849 (State ex rel.Dunning v. Giles, 52 Am. Dec. 149).

It is therefore incorrect to argue that since a candidate has been disqualified,the votes intended for the disqualified candidate should, in effect, beconsidered null and void. This would amount to disenfranchising theelectorate in whom, sovereignty resides. At the risk of being repetitious, thepeople of Baguio City opted to elect petitioner Labo bona fide without anyintention to missapply their franchise, and in the honest belief that Labo wasthen qualified to be the person to whom they would entrust the exercise of the

powers of the government. Unfortunately, petitioner Labo turned out to bedisqualified and cannot assume the office.

Whether or not the candidate whom the majority voted for can or cannot beinstalled, under no circumstances can a minority or defeated candidate bedeemed elected to the office. Surely, the 12,602 votes cast for petitionerOrtega is not a larger number than the 27,471 votes cast for petitioner Labo

8/10/2019 art. vi- SEC 6-9


(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, inanother shift of the pendulum, subscribe to the contention that the runner-up in an electionin which the winner has been disqualified is actually the winner among the remainingqualified candidates because this clearly represents a minority view supported only by ascattered 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 andinsignificant 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 repudiatedcandidate as the voters' "choice." Moreover, even in instances where the votes received by the secondplacer may not be considered numerically insignificant, voters preferences are nonetheless so volatileand unpredictable that the result among qualified candidates, should the equation change because of thedisqualification of an ineligible candidate, would not be self-evident. Absence of the apparent thoughineligible winner among the choices could lead to a shifting of votes to candidates other than the secondplacer. By any mathematical formulation, the runner-up in an election cannot be construed to haveobtained a majority or plurality of votes cast where an "ineligible" candidate has garnered either a majorityor plurality of the votes.

In fine, we are left with no choice but to affirm the COMELEC's conclusion declaring hereinpetitioner ineligible for the elective position of Representative of Makati City's SecondDistrict on the basis of respondent commission's finding that petitioner lacks the one yearresidence in the district mandated by the 1987 Constitution. A democratic government isnecessarily a government of laws. In a republican government those laws are themselvesordained by the people. Through their representatives, they dictate the qualificationsnecessary for service in government positions. And as petitioner clearly lacks one of theessential qualifications for running for membership in the House of Representatives, noteven the will of a majority or plurality of the voters of the Second District of Makati Citywould substitute for a requirement mandated by the fundamental law itself.

WHEREFORE, premises considered, the instant petition is hereby DISMISSED. Our Orderrestraining respondent COMELEC from proclaiming the candidate garnering the nexthighest number of votes in the congressional elections for the Second District of Makati Cityis made PERMANENT.

SO ORDERED.

ERNESTO "BIBOT" A. DOMINGO, JR., petitioner,vs.COMMISSION ON ELECTIONS and BENJAMIN "BENHUR" D. ABALOS,

JR., respondents.

GONZAGA-REYES, J.:

Assailed in this special civil action for certiorari are the En Banc Resolution of theCommission on Elections ("COMELEC"), dated December 1, 1998,1 and the Resolution ofthe COMELEC First Division, dated July 2, 1998,2in SPA No. 98-361, which dismissed, forlack of merit, the petition for disqualification filed against herein private respondent, theincumbent mayor of Mandaluyong City. 1âwphi1.nêt

8/10/2019 art. vi- SEC 6-9


In May 11, 1998 elections, petitioner Ernesto Domingo, Jr. and private respondent Benjamin Abalos, Jr. were both mayoralty candidates of Mandaluyong City. After private respondent'sproclamation on May 17, 1998, petitioner filed the instant petition for disqualification, on theground that, during the campaign period, private respondent "prodded" his father, thenincumbent Mandaluyong City Mayor Benjamin Abalos, Sr., to give the "substantialallowances" to public school teachers appointed as chairpersons and members of theBoards of Election Inspector (BEIs) for Mandaluyong City.

Petitioner's allegations obtain from an incident on April 14, 1998, wherein, in a "Pasyal-Aral"outing for Mandaluyong City public school teachers in Sariaya, Quezon, then MayorBenjamin Abalos, Sr. announced that the teachers appointed to the BEIs will each be givena hazard pay of P1,000.00 and food allowance of P500.00, in addition to the allowance ofP1,500.00.3 In the petition for disqualification filed before the COMELEC First Division,petitioner charged that private respondent's influence over his father on this matter wasevident from the following declaration of father Abalos, Sr.:

Your President [referring to Mr. Alfredo de Vera, President of the Federation of

Mandaluyong Public School Teachers], together with Benhur, walang tigil 'yankakapunta sa akin at not because he is my son siya ang nakikipag-usap sa kanilaand came up with a beautiful compromise. . . .4

As alleged by petitioner, the foregoing statement was revealing of how private respondent"prodded" his father, then Mayor Abalos, Sr., to award "substantial allowances" to the publicschool teachers who will assume seats in the BEIs in the May 11, 1998 elections, as toinfluence them into voting for him and ensuring his victory.

Mayor Abalos, Sr.'s speech, as well, as other activities in the aforesaid "Pasyal-Aral" outing,were recorded on videotape per instructions of Mr. Perfecto Doroja, an "associate" of

petitioner.

5

In addition to the videotape, petitioner also submitted photographs of a streamer,hung at the entrance of the Tayabas Bay Beach Resort, Sariaya, Quezon, declaring MayorBenjamin S. Abalos, Sr. as co-sponsor of the "Pasyal-Aral",6 as well as affidavits of threepublic school teachers who participated in the said activity.7

Petitioner alleges that private respondent's act of "prodding" his father, then incumbentmayor Benjamin S. Abalos, Sr., to give "substantial allowances" to the Mandaluyong Citypublic school teachers constitutes a violation of Section 68 of the Omnibus Election Code,the pertinent provisions of which read:

Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which heis a party is declared by final decision of a competent court guilty of, or found by the

Commission of having (a) given money or other material consideration to influence,induce or corrupt the voters or public officials performing electoral functions; . . . shallbe disqualified from continuing as a candidate, or if he has been elected, fromholding the office. . . .

In dismissing the petition for disqualification for insufficiency of evidence and lack of merit,the COMELEC First Division admonished petitioner and his counsel for attempting tomislead the COMELEC by making false and untruthful statements8 in his petition. On

8/10/2019 art. vi- SEC 6-9


reconsideration, the COMELEC, En Banc , affirmed the findings and conclusions of its FirstDivision.

Before us, petitioner assails the Resolution of public respondent COMELEC for beingviolative of his right to due process, and thus, issued with grave abuse of discretion. It ispetitioner's argument that the dismissal of his petition for disqualification on the ground ofinsufficiency of evidence was unfounded, considering that no hearing on the merits wasconducted by public respondent on the matter.

Petitioner next contends that grave abuse of discretion was likewise attendant in publicrespondent's act of dismissing the petition for disqualification for insufficiency of evidence,despite the "overwhelming" pieces of evidence of petitioner, consisting of the videocassette, pictures and affidavits, which were "not denied" by private respondent.9 Petitionerfurther decries the fact that private respondent presented "no evidence" to substantiate hisdefense, while all the pieces of evidence that he submitted in his petition for disqualificationwere strong enough to prove violation by private respondent of Section 68 of the OmnibusElection Code.10

Before touching on the merits, we shall first resolve the procedural matters raised by privaterespondent, namely, forum-shopping and failure to file this petition on time.

It is not disputed that, in addition to the petition for disqualification, petitioner also filed acriminal complaint11 and an election protest ex abundante cautelam 12 with publicrespondent COMELEC. Private respondent contends that, inasmuch as the petition fordisqualification and the complaint for election offense involve the same issues andcharges, i .e., vote-buying, exerting undue influence on BEI members, petitioner should beheld liable for forum-shopping.

We rule to the contrary. Forum-shopping exists when the petitioner files multiple petitions orcomplaints involving the same issues in two or more tribunals or agencies.13 The issues inthe two cases are different. The complaint for election offense is a criminal case whichinvolves the ascertainment of the guilt or innocence of the accused candidate and, like anyother criminal case, requires a conviction on proof beyond reasonable doubt.14 A petition fordisqualification, meanwhile, requires merely the determination of whether the respondentcommitted acts as to merit his disqualification from office, and is done through anadministrative proceeding which is summary in character and requires only a clearpreponderance of evidence.15

Next, petitioner admits receiving a copy of the assailed COMELEC First Division Resolutionon July 13, 1998. He also admits filing a motion for reconsideration of the said COMELEC

First Division Resolution on July 20, 1998. A copy of the assailed COMELEC EnBanc Resolution dated December 1, 1998 was received by petitioner on December 4, 1998.Under Section 3, Rule 64 of the Revised Rules of Court, petitions for certiorari from ordersor ruling of the COMELEC

shall be filed within thirty (30) days from notice of the judgment or final order orresolution sought to be reviewed. The filing of a motion for new trial orreconsideration of the said judgment or final order or resolution . . . shall interrupt the

8/10/2019 art. vi- SEC 6-9


period herein fixed. If the motion is denied, the aggrieved party may file the petitionwithin the remaining period, but which shall not be less than five (5) days in anyevent, reckoned form notice of denial.

Sec. 4 of Rule 19 of the COMELEC Rules of Procedure likewise provides:

Effect of motion for reconsideration on period to appeal . — A motion to reconsider adecision, resolution, order or ruling when not pro-forma, suspends the running of theperiod to elevate the matter to the Supreme Court.

Inasmuch as the filing of a motion for reconsideration interrupts the 30-day period withinwhich to file a petition for certiorari with this Court, petitioner has effectively consumed sevendays of the abovestated 30-day period when he filed his motion for reconsideration. Thus,as correctly pointed out by private respondent, when petitioner received a copy of theassailed COMELEC En Banc Resolution, he only had 23 days from December 4, 1998, thedate when he received the COMELEC En Banc Resolution, or until December 27, 199816, tofile the instant petition for certiorari . This petition was filed on January 4, 1999.

In any event, whether the petition was filed on time or not, an examination of the recordsleaves us satisfied that public respondent COMELEC did not commit grave abuse ofdiscretion in dismissing the petition for disqualification.

First, on the issue of due process, we find no violation thereof when public respondentCOMELEC decided to dismiss the petition for disqualification without hearing. Well-established is the rule that the essence of due process is simply an opportunity to beheard.17 In Zaldivar vs. Sandiganbayan18, cited in the recent case of Bautistavs.COMELEC 19, we held that the right to be heard does not only refer to the right to presentverbal arguments in court. A party may also be heard through his pleadings. Where

opportunity to be heard is accorded, either through oral arguments or pleadings, there is nodenial of procedural due process.

Furthermore, the filing by petitioner of a motion for reconsideration accorded him ampleopportunity to dispute the findings of the COMELEC First Division, so that he was as fullyheard as he might have been had oral arguments actually taken place. Deprivation of dueprocess cannot be successfully invoked where a party was given the chance to be heard inhis motion for reconsideration.20

Next, petitioner re-asserts before us the sufficiency of his evidence to prove that privaterespondent influenced the Mandaluyong City public school teachers, through his father,

Abalos, Sr., in the performance of their functions as members of the BEIs.

Petitioner's evidence fails to persuade. First, the affidavits of the three teacher whoparticipated in the controversial "Pasyal-Aral" do not contain anything but the following baredeclarations: (1) that they heard Abalos, Sr. promise that he will give hazard pay ofP1,000.00 and food allowance of P500.00, in addition to the regular living allowance ofP1,500.00, and 2) that, before the May 11, 1998 elections they each received P1,500.00, orhalf of the total allowances promised by Abalos, Sr. in his speech. Nothing in theseaffidavits suggests, let alone sets out, knowledge on any degree of participation of private

8/10/2019 art. vi- SEC 6-9


respondent in the grant of these allowances. The name of private respondent was not evenmentioned or alluded to by any of the three affiants.

Petitioner also submitted photographs taken of the streamer at the entrance of the TayabasBay Beach Resort, welcoming the participants to the "Pasyal-Aral" and declaring theMandaluyong City School Board and then mayor Abalos, Sr. as co-sponsors of the affair.Since by law, the mayor is a co-chairman of the City School Board21, we find nothingunusual in his having co-sponsored the said event. We fail to see the connection betweenthese pictures and the alleged influence wielded by private respondent on the public schoolteachers of Mandaluyong City.

Yet it is upon the videotape recordings that petitioner lays much reliance on, in proving hiscase for disqualification. The recordings are supposed to document how former mayor

Abalos, Sr. announced that his son, private respondent herein, prodded his father to releasesubstantial allowances to teachers who will act as members of the BEIs. As found by theCOMELEC First Division, the name uttered in the announcement was not "Benhur", privaterespondent's nickname and what petitioner alleged was uttered, but "Lito Motivo", a name

which truly sounded unlike "Benhur".22

Also, when the COMELEC, through its First Division,viewed the videotape submitted by petitioner, "the speech of Mayor Abalos, Sr. was cut andso (they) also did not see and hear that part of Mayor Abalos, Sr.'s speech allegedly utteredby him."23

In the Petition, petitioner's counsel admitted that the assailed quotation in the petition fordisqualification was based on "erroneous transcript" of the speech which was prepared bysomebody else, and which he in turn failed to verify for errors. However, he denies havingintended to mislead the COMELEC with the inclusion of this statement, but instead submitsthat the word "Benhur" was "derived" from the succeeding pronouncement of Abalos, Sr.,"not because he is my son", which may in turn be inferred to refer to private respondent,who was a mayoralty candidate at the time.24

We find no grave abuse of discretion in the COMELEC's finding that Abalos, Sr.'scontroversial statement, effectively reduced to this:

Your President, together with Lito Motivo, walang tigil yan kakapunta sa akin at notbecause he is my sonsiya ang nakikipag-usap sa kanila and came up with abeautiful compromise. . . .

was seriously insufficient and vague to prove violation of Section 68 of the OmnibusElection Code. The burden of proving that private respondent indirectly influenced the publicschool teachers of Mandaluyong City, through his father, Abalos, Sr., was a burden that

petitioner failed to meet.

Neither is this burden overcome by the argument that private respondent, for himself, had"no evidence" to rebut petitioner's allegations, since the burden of proving factual claimsrests on the party raising them.25 Besides, it is not true that private respondent gave onlydenials and did not present any evidence to his defense, or to offer an explanation for hisfather's actions, which were assailed as having been influenced by him. Private respondentpresented in evidence a certified true copy of Joint Circular No. 1, series of 1998,26 issued

8/10/2019 art. vi- SEC 6-9


by the Department of Education, Culture and Sports, Department of Budget andManagement and Department of Interior and Local Government, which authorized thepayment of allowances of public school teachers chargeable to local governmentfunds.27 The Joint Circular provided the basis for private respondent's argument that thedisbursement of funds by then mayor Abalos, Sr. was valid as having been made pursuantto administrative circular, and was not an unlawful attempt made in conspiracy with privaterespondent to secure the latter's victory in the elections.

In fine, we find no grave abuse of discretion in the COMELEC's decision to dismiss thepetition for disqualification. The conclusion that petitioner's evidence is insufficient tosupport the charge of violation of Section 68 of the Omnibus Election Code was arrived atonly after a careful scrutiny of the evidence at hand, especially of the videotapes ofpetitioner. This is clearly evident from the discussion of the COMELEC First Division, in theResolution dated July 2, 1998, which quoted extensively from the pleadings and evidence ofpetitioners, and provided adequate explanation for why it considered petitioner's evidenceinsufficient and unconvincing.

Clearly, where there is no proof of grave abuse of discretion, arbitrariness, fraud or error oflaw in the questioned Resolutions, the Court may not review the factual findings ofCOMELEC, nor substitute its own findings on the sufficiency of evidence.28

Finally, the foregoing conclusion is without prejudice to the election protest and electionoffense cases involving the same parties pending with public respondent COMELEC.

WHEREFORE, the petition is DISMISSED. The assailed COMELEC Resolutions dated July2, 1998 and December 1, 1998, dismissing the petition for insufficiency of evidence andlack of merit, and affirming the proclamation of private respondent Benjamin Abalos, Jr. asduly elected mayor of Mandaluyong City, are hereby AFFIRMED. No costs.

SO ORDERED.

ANTONIO BENGSON III, peti tioner, vs . HOUSE OF REPRESENTATIVES

ELECTORAL TRIBUNAL and TEODORO C. CRUZ, respondents .

D E C I S I O N

KAPUNAN, J .:

The citizenship of respondent Teodoro C. Cruz is at issue in this case, in view of theconstitutional requirement that "no person shall be a Member of the House of Representativesunless he is a natural-born citizen."[1]

Respondent Cruz was a natural-born citizen of the Philippines. He was born in SanClemente, Tarlac, on April 27, 1960, of Filipino parents. The fundamental law then applicablewas the 1935 Constitution.[2]

On November 5, 1985, however, respondent Cruz enlisted in the United States MarineCorps and, without the consent of the Republic of the Philippines, took an oath of allegiance to

http://sc.judiciary.gov.ph/jurisprudence/2001/may2001/142840.htm#_edn1








8/10/2019 art. vi- SEC 6-9


8/10/2019 art. vi- SEC 6-9


become a member of the House of Representatives since he is not a natural-born citizen asrequired 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 Districtof 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 thefollowing grounds:

1. The HRET committed serious errors and grave abuse of discretion, amounting toexcess of jurisdiction, when it ruled that private respondent is a natural-born citizen ofthe Philippines despite the fact that he had ceased being such in view of the loss andrenunciation of such citizenship on his part.

2. The HRET committed serious errors and grave abuse of discretion, amounting toexcess of jurisdiction, when it considered private respondent as a citizen of thePhilippines despite the fact that he did not validly acquire his Philippine citizenship.

3. Assuming that private respondent's acquisition of Philippine citizenship wasinvalid, the HRET committed serious errors and grave abuse of discretion, amountingto excess of jurisdiction, when it dismissed the petitiondespite the fact that suchreacquisition could not legally and constitutionally restore his natural-born status.[7]

The issue now before us is whether respondent Cruz, a natural-born Filipino who became anAmerican 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 Filipinosince 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 theConstitution expressly states that natural-born citizens are those who are citizens from birthwithout 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 citizenwhen he was repatriated since the phrase "from birth" in Article IV, Section 2 refers to theinnate, 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 citizenshipupon reaching the age of majority, and
















8/10/2019 art. vi- SEC 6-9


(4) Those who are naturalized in accordance with law.[8]

There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. Theseways 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 particularcountry, is a natural-born citizen thereof .[9]

As defined in the same Constitution, natural-born citizens "are those citizens of thePhilippines from birth without having to perform any act to acquire or perfect his Philippinecitizenship."[10]

On the other hand, naturalized citizens are those who have become Filipino citizens throughnaturalization, generally under Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law, which repealed the former Naturalization Law (Act No. 2927), and byRepublic Act No. 530.[11] To be naturalized, an applicant has to prove that he possesses all thequalifications[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) committedany 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 themanner provided by law. Commonwealth Act. No. 63 (C.A. 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. Asa mode of initially acquiring Philippine citizenship, naturalization is governed by

Commonwealth Act No. 473, as amended. On the other hand, naturalization as a mode forreacquiring Philippine citizenship is governed by Commonwealth Act No. 63.[16] Under this law,a former Filipino citizen who wishes to reacquire Philippine citizenship must possess certainqualifications[17] and 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 theircitizenship due to: (1) desertion of the armed forces;[19] (2) service in the armed forces of theallied forces in World War II;[20](3) service in the Armed Forces of the United States at any othertime;[21] (4) marriage of a Filipino woman to an alien;[22] and (5) political and economicnecessity.[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 inthe Local Civil Registry of the place where the person concerned resides or last resided.

In Angat v. Republic,[24] we held:

xxx. 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



































































8/10/2019 art. vi- SEC 6-9


Republic of the Philippines and to register that fact with the civil registry in the placeof his residence or where he had last resided in the Philippines. [Italics in theoriginal.][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 anaturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen beforehe lost his Philippine citizenship, he will be restored to his former status as a natural-bornFilipino.

In respondent Cruz's case, he lost his Filipino citizenship when he rendered service in theArmed Forces of the United States. However, he subsequently reacquired Philippine citizenshipunder 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, mayreacquire Philippine citizenship by taking an oath of allegiance to the Republic of thePhilippines and registering the same with Local Civil Registry in the place where heresides or last resided in the Philippines. The said oath of allegiance shall contain arenunciation of any other citizenship.

Having thus taken the required oath of allegiance to the Republic and having registered thesame 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-borncitizen, a status which he acquired at birth as the son of a Filipino father .[27] It bears stressing thatthe 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 hadto perform an act to regain his citizenship is untenable. As correctly explained by the HRET inits decision, the term "natural-born citizen" was first defined in Article III, Section 4 of the 1973Constitution as follows:

Sec. 4. A natural-born citizen is one who is a citizen of the Philippines from birthwithout 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 hisPhilippine citizenship.

Under the 1973 Constitution definition, there were two categories of Filipino citizens whichwere not considered natural-born: (1) those who were naturalized and (2) those born beforeJanuary 17, 1973,[28] of Filipino mothers who, upon reaching the age of majority, electedPhilippine 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

















8/10/2019 art. vi- SEC 6-9


citizenship. Those born of Filipino mothers before the effectivity of the 1973 Constitution werelikewise not considered natural-born because they also had to perform an act to perfect theirPhilippine citizenship.

The present Constitution, however, now considers those born of Filipino mothers before theeffectivity 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 ArticleIV 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 Filipinosare considered not natural-born citizens. It is apparent from the enumeration of who are citizensunder the present Constitution that there are only two classes of citizens: (1) those who arenatural-born and (2) those who are naturalized in accordance with law. A citizen who is not anaturalized Filipino, i.e., did not have to undergo the process of naturalization to obtainPhilippine citizenship, necessarily is a natural-born Filipino. Noteworthy is the absence in saidenumeration 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 benatural-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 notrequired by law to go through naturalization proceedings in order to reacquire his citizenship, heis perforce a natural-born Filipino. As such, he possessed all the necessary qualifications to beelected as member of the House of Representatives.

A final point. The HRET has been empowered by the Constitution to be the "sole judge" ofall contests relating to the election, returns, and qualifications of the members of theHouse.[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 thelatter .[30] In the absence thereof, there is no occasion for the Court to exercise its corrective powerand 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 thecorrectness of the assailed decision.[31] There is no such showing of grave abuse of discretion inthis case.

WHEREFORE, the petition is hereby DISMISSED.

MITRA VS COMELEC

The minimum requirement under our Constitution[1] and election laws[2] for

the candidates’ residency in the political unit they seek to represent has never been

intended to be an empty formalistic condition; it carries with it a very specific

purpose: to prevent "stranger[s] or newcomer[s] unacquainted with the conditions

and needs of a community‖ from seeking elective offices in that community.[3]

The requirement is rooted in the recognition that officials of districts or

localities should not only be acquainted with the metes and bounds of their










http://sc.judiciary.gov.ph/jurisprudence/2010/july2010/191938.htm#_ftn1














8/10/2019 art. vi- SEC 6-9


constituencies; more importantly, they should know their constituencies and the

unique circumstances of their constituents – their needs, difficulties, aspirations,

potentials for growth and development, and all matters vital to their common

welfare. Familiarity, or the opportunity to be familiar, with these circumstances

can only come with residency in the constituency to be represented.

The purpose of the residency requirement is ―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.‖[4] At the same time, the

constituents themselves can best know and evaluate the candidates’ qualifications

and fitness for office if these candidates have lived among them.[5]

Read and understood in this manner, residency can readily be appreciated as

a requirement that goes into the heart of our democratic system; it directly supports

the purpose of representation – electing those who can best serve the community

because of their knowledge and sensitivity to its needs. It likewise adds meaning

and substance to the voters’ freedom of choice in the electoral exercise that

characterizes every democracy.

In the present case, the respondent Commission on Elections (COMELEC )

canceled the certificate of candidacy (COC ) of petitioner Abraham Kahlil B. Mitra

for allegedly misrepresenting that he is a resident of

the Municipality of Aborlan, Province of Palawan where he ran for the position of

Governor. Mitra came to this Court to seek the reversal of the cancellation.[6]

The Antecedents

When his COC for the position of Governor of Palawan was declared

cancelled, Mitra was the incumbent Representative of the Second District of

Palawan. This district then included, among other territories,

the Municipality of Aborlan and Puerto Princesa City. He was elected













8/10/2019 art. vi- SEC 6-9


Representative as a domiciliary of Puerto Princesa City, and represented the

legislative district for three (3) terms immediately before the elections of 2010.[7]

On March 26, 2007 (or before the end of Mitra’s second term as

Representative), Puerto Princesa City was reclassified as a ―highly urbanized city‖

and thus ceased to be a component city of the Province of Palawan. The direct

legal consequence of this new status was the ineligibility

of Puerto Princesa City residents from voting for candidates for elective provincial

officials.[8]

On March 20, 2009, with the intention of running for the position of

Governor, Mitra applied for the transfer of his Voter’s Registration Record fromPrecinct No. 03720 of Brgy. Sta. Monica, Puerto Princesa City,

to Sitio Maligaya, Brgy. Isaub, Municipality of Aborlan, Province of Palawan. He

subsequently filed his COC for the position of Governor of Palawan as a resident

of Aborlan.[9]

Soon thereafter, respondents Antonio V. Gonzales and Orlando R. Balbon,

Jr. (the respondents) filed a petition to deny due course or to cancel Mitra’s

COC.[10] They essentially argued that Mitra remains a resident

of Puerto Princesa City who has not yet established residence in Aborlan, and is

therefore not qualified to run for Governor of Palawan. Mitra insisted in his

Answer that he has successfully abandoned Puerto Princesa City as his domicile of

origin, and has established a new domicile in Aborlan since 2008.[11]

The Parties’ Claims and Evidence

The respondents’ petition before the COMELEC claimed that Mitra’s COC

should be cancelled under the following factual premises: (a) Mitra bought, in June

2009, a parcel of land in Aborlan where he began to construct a house, but up to

the time of the filing of the petition to deny due course or to cancel Mitra’s COC,




















8/10/2019 art. vi- SEC 6-9


the house had yet to be completed; (b) in the document of sale, Puerto Princesa

City was stated as Mitra’s residence (attached as Annex ―J‖ of the Respondents’

Petition before the COMELEC);[12] (c) Mitra’s Puerto Princesa City residence was

similarly stated in his application for a building permit (attached as Annex ―K‖ of

the Respondents’ Petition before the COMELEC);[13] and (d) Mitra’s community

tax certificate states that his residence was Puerto Princesa City (attached as Annex

―M‖ of the Respondents’ Petition before the COMELEC).[14] The respondents

presented several affidavits attesting to the non-completion of the construction of

the house,[15] and asserted that without a fully constructed house, Mitra could not

claim residence in Aborlan.

Mitra denied the respondents’ allegations in his Answer. He claimed thatthe respondents misled the COMELEC by presenting photographs of his

unfinished house on the land he purchased from a certain Rexter Temple. He

claimed, on the contrary, that his residence is located inside the premises of the

Maligaya Feedmill and Farm ( Maligaya Feedmill ) which the owner, Carme Caspe,

leased to him; and that he purchased a farm and presently has an experimental

pineapple plantation and a cock farm. The transfer of his residence, he claimed,

began in 2008.[16]

He submitted the following: (a) the Sinumpaang Salaysay of Ricardo

Temple; Florame T. Gabrillo, the Punong Barangay of Isaub, Aborlan; Marissa U.

Zumarraga, Councilor of Aborlan; Virginia J. Agpao and Elsa M. Dalisay,

both Sangguniang Barangay members of Isaub, Aborlan, attesting that Mitra

resides in their locality;[17] (b) photographs of the residential portion of the

Maligaya Feedmill[18] where he claims to reside, and of his Aborlan experimental

pineapple plantation, farm, farmhouse and cock farm;[19]

(c) the lease contract overthe Maligaya Feedmill;[20] (d) the community tax certificate he claims he himself

secured, stating that Aborlan is his residence;[21] and (e) an updated identification

card issued by the House of Representatives stating that Aborlan is his

residence.[22]












































8/10/2019 art. vi- SEC 6-9


8/10/2019 art. vi- SEC 6-9


and citing jurisprudence, the First Division granted the respondents’ petition to

cancel Mitra’s COC.

To the First Division, Mitra’s submitted pictures are telling; they show a

small, sparsely furnished room that is evidently unlived in, located at the second

floor of a structure that appears to be a factory or a warehouse; the residence

appears hastily set-up, cold, and utterly devoid of any indication of Mitra’s

personality such as old family photographs and memorabilia collected through the

years. What the supposed residence lacks, in the First Division’s perception, are

the loving attention and details inherent in every home to make it one’s residence;

perhaps, at most, this small room could have served as Mitra’s resting area

whenever he visited the locality, but nothing more than this.[28]

These observations – coupled with the statements from former employees

and customers of the Maligaya Feedmill that the claimed residence is located in an

unsavory location (for its noise and pollution), and that it had been in fact

Maligaya Feedmill’s office just a few months back – militated against Mitra’s

claim. These pieces of information made it clear, to the First Division, that this

room is not the home that a residence is supposed to be.[29]

A person’s domicile of origin is not easily lost, the First Div ision further

said. The fact that Mitra registered as a voter in Aborlan, has a cock farm, a farm,

a rest house and an experimental pineapple plantation in Maligaya Feedmill, was

occasionally seen staying in Aborlan, and held meetings with Aborlan constituents

does not necessarily establish Mitra’s status as an Aborlan resident, or prove his

abandonment of his domicile of origin in Puerto Princesa City. Mere absence from

one’s residence or domicile of origin to pursue studies, engage in business, or practice one’s vocation is not sufficient to constitute abandonment or loss of

domicile. Registration or voting in a place other than one’s domicile does not

eliminate an individual’s animus revertendi to his domicile of origin; the natural

desire and longing of every person to return to the place of birth and his strong









8/10/2019 art. vi- SEC 6-9


feeling of attachment to this place can only be shown to have been overcome by a

positive proof of abandonment of this place for another .[30]

Also, the First Division said that Mitra’s witnesses’ sworn statements appear

to have been prepared by the same person, as they use similar wordings,

allegations, and contents; thus, putting into question the credibility of the

statements. Furthermore, the lease contract over the Maligaya Feedmill between

Mitra and Carme Caspe is effective only up to February 28, 2010, thus casting

doubt on Mitra’s claim of residency in Aborlan.[31]

The COMELEC En Banc Ruling

The COMELEC en banc – in a divided decision[32] – subsequently denied

Mitra’s motion to reconsider the First Division ruling under the following outlined

reasons.

First , registration as a voter of Aborlan is not sufficient evidence that Mitra

has successfully abandoned his domicile of origin.[33]

Second , mere intent cannot supplant the express requirement of the law; the

―physical presence‖ required to establish domicile connotes actual, factual

and bona fideresidence in a given locality. The COMELEC en banc agreed with

the First Division’s evidentiary findings on this point.[34]

Third , the First Division’s Resolution was based on a careful and judicious

examination and consideration of all evidence submitted by the parties. The

summary nature of the proceedings is not necessarily offensive to a party’s right to

due process.[35]

Fourth, Fernandez v. House of Representati ves Electoral Tr ibuna l [36]

is not

on all fours with the present case – Fernandez stemmed from a quo warranto case




























8/10/2019 art. vi- SEC 6-9


8/10/2019 art. vi- SEC 6-9


Mitra supports his petition with the following ARGUMENTS:

6.1 x x x COMELEC’s GRAVE ABUSE is most patent as IT

forgets, wittingly or unwittingly that the solitary GROUND to deny duecourse to a COC is the DELIBERATE false material representationto DECEIVE , and not the issue of the candidate’s eligibility which

should be resolved in an appropriate QUO WARRANTO proceedings post election.[40]

6.2 Deny Due Course Petitions under Section 78 of the OEC, being SUMMARILY decided and resolved, the same must be exercisedmost sparingly, with utmost care and extreme caution; and construedmost strictly against the proponent/s, and liberally in favor of the

candidate sought to be eliminated. When exercised otherwise and withapparent biased in favor of the proponents, as in this instance, GRAVEABUSE OF DISCRETION necessarily sets in.[41]

6.3 The mandate to be extremely cautious and careful in theSUMMARY exercise of the awesome power to simplistically cancel[one’s] candidacy x x x is further made manifest by the availability ofa QUO WARRANTO proceeding appropriately prosecuted postelection.[42]

6.4 Absent any formal HEARINGS and Presentation ofEvidence; Lacking the actual inspection and verification; and withoutactual confrontation of affiants/alleged witnesses – ALL the―conclusions‖ of COMELEC on the RESIDENCE issue, were indeed

predicted (sic) on sheer SPECULATION[.][43]

6.5 A grievous procedural flaw, FATAL in character. THEBURDEN OF PROOF MUST ALWAYS BE PLACED ON THESHOULDERS OF THE PROPONENT/s. Not so in the presentcontroversy, where COMELEC’s assailed decision/s were devoted

exclusively to the alleged weakness of MITRA’s submissions andCOMELEC’s speculative conclusions, rather than on the strength of

proponents’ unverified and unconfirmed submissions and unconfronted

sworn statements of supposed affiants[.][44]




















8/10/2019 art. vi- SEC 6-9


The petition also asks for ancillary injunctive relief. We granted the

application for injunctive relief by issuing a status quo ante order, allowing Mitra

to be voted upon in the May 10, 2010 elections.[45]

The respondents’ Comment[46] states the following counter-arguments:

a. Procedural Arguments: II. THE INSTANT PETITION FAILED TO ATTACH CERTIFIEDTRUE COPIES OF THE MATERIAL PORTIONS OF THE RECORDSREFERRED TO THEREIN IN GROSS CONTRAVENTION OFSECTION 5 OF RULE 64 OF THE RULES OFCOURT. CONSEQUENTLY, IT MUST BE DISMISSED OUTRIGHT.

III. THE INSTANT PETITION RAISES MERE ERRORS OFJUDGMENT, WHICH ARE OUTSIDE THIS HONORABLECOURT’S CERTIORARI JURISDICTION.

b. Arguments on the Merits

I. XXX

B. THE LAW, IN IMPOSING A RESIDENCY REQUIREMENT,

MANDATES NOT ONLY FAMILIARITY WITH THE NEEDSAND CONDITIONS OF THE LOCALITY, BUT ALSO ACTUALPHYSICAL, PERSONAL AND PERMANENT RESIDENCETHEREIN. PETITIONER’S SUPPOSED FAMILIARITY WITH

THE ―NEEDS, DIFFICULTIES, ASPIRATIONS, POTENTIALS

(SIC ) FOR GROWTH AND ALL MATTERS VITAL TO THEWELFARE OF HIS CONSTITUENCY WHICH CONSTITUTESONE/THIRD OF THE WHOLE PROVINCE OF PALAWAN‖ AS A

THREE-TERM CONGRESSMAN ABSENT SUCHRESIDENCE DOES NOT SUFFICE TO MEET THE RESIDENCY

REQUIREMENT OF THE LAW.

IV. FINDINGS OF FACTS OF ADMINISTRATIVE BODIES SUCHAS THE COMELEC, ARE ACCORDED GREAT RESPECT, IF NOTFINALITY BY THE COURTS, ESPECIALLY IF SUPPORTED BYSUBSTANTIAL EVIDENCE. BECAUSE THE FINDINGS OFFACTS OF THE COMELEC IN THE INSTANT CASE ARE









8/10/2019 art. vi- SEC 6-9


OVERWHELMINGLY SUPPORTED BY SUBSTANTIALEVIDENCE, THIS HONORABLE COURT MAY NOT REVERSESUCH FINDINGS.

V. THE COMELEC DID NOT COMMIT ANY GRAVE ABUSE OFDISCRETION AMOUNTING TO LACK OR EXCESS OFJURISDICTION IN ISSUING THE ASSAILED RESOLUTIONDATED 04 MAY 2010.

A. THE COMELEC CORRECTLY RULED THAT PETITIONER’S

REGISTRATION AS A VOTER IN ABORLAN, PALAWAN IS NOT SUFFICIENT EVIDENCE THAT HE HAS SUCCESSFULLYABANDONED HIS DOMICILE OF ORIGIN AT PUERTOPRINCESA CITY, PALAWAN.

B. THE COMELEC CORRECTLY RULED THAT PETITIONER’S

MERE INTENT TO TRANSFER RESIDENCE TO ABORLAN,PALAWAN, ABSENT ACTUAL, FACTUAL, AND BONA

FIDE RESIDENCE THEREIN DOES NOT SUFFICE TO PROVEHIS TRANSFER OF RESIDENCE FROM PUERTO PRINCESA,PALAWAN TO ABORLAN, PALAWAN.

C. THE COMELEC THOROUGHLY EVALUATED THEEVIDENCE, AND CORRECTLY ARRIVED AT THE ASSAILED

DECISION ONLY AFTER MUCH DELIBERATION ANDCAREFUL ASSESSMENT OF THE EVIDENCE, ALBEITTHROUGH SUMMARY PROCEEDINGS PARTICIPATED INACTIVELY BY PETITIONER. THE COMELEC CORRECTLYDID NOT GIVE CREDENCE TO THE TESTIMONIES OFPETITIONER’S WITNESSES FOR BEING INCREDIBLE ANDCONTRARY TO THE PHYSICAL EVIDENCE, ESPECIALLYPERTAINING TO HIS ALLEGED RESIDENCE AT THEFEEDMILL PROPERTY.

D. THE COMELEC CORRECTLY RULED THAT PETITIONERHAS NOT TRANSFERRED HIS RESIDENCE FROM PUERTOPRINCESA, PALAWAN TO ABORLAN, PALAWAN.

E. THE ALLEGED LEASE OF THE RESIDENTIAL PORTION OFTHE FEEDMILL PROPERTY IS A SHAM.

8/10/2019 art. vi- SEC 6-9


VI. GIVEN HIS STATURE AS A MEMBER OF THEPROMINENT MITRA CLAN OF PALAWAN, AND AS A 3-TERMCONGRESSMAN, IT IS HIGHLY INCREDIBLE THAT A SMALLROOM IN A FEEDMILL HAS SERVED AS HIS RESIDENCE SINCE2008.

VII. THE COMELEC CORRECTLY RULED THAT PETITIONERMAY NOT INVOKE THE CASE OF FERNANDEZ V. HRET ASPETITIONER IS NOT SIMILARLY SITUATED AS DANFERNANDEZ.

VIII. THE MATERIAL STATEMENT IN PETITIONER’S COC

RESPECTING HIS RESIDENCE HAS BEEN SHOWN TO BEFALSE. BY MAKING SUCH FALSE STATEMENT, PETITIONERDELIBERATELY TRIED TO MISLEAD AND TO MISINFORM THEELECTORATE AS TO HIS ACTUAL RESIDENCE. HENCE, HISCOC WAS CORRECTLY DENIED DUE COURSE ANDCANCELED.

In the recently concluded elections of May 10, 2010, Mitra obtained the

most number of votes for Governor and was accordingly proclaimed winner of

the Palawangubernatorial contest.[47]

We required the respondents and the COMELEC to comment on the petition.[48] They complied on May 6, 2010[49] and June 2, 2010,

respectively.[50] On May 17, 2010, the petitioner filed a ―Supplemental

Petition.‖[51]

On May 26, 2010, the respondents filed a ―Supplemental Comment (with

Omnibus Motion to Annul Proclamation and for Early Resolution)‖ to the

petitioner’s ―Supplemental Petition.‖

[52]

We deemed the case ready for resolutionon the basis of these submissions.

The Court’s Ruling

We find the petition meritorious.






















8/10/2019 art. vi- SEC 6-9


8/10/2019 art. vi- SEC 6-9


of wrong or irrelevant considerations in deciding an issue is sufficient to taint a

decision-maker’s action with grave abuse of discretion.[56]

Closely related with the limited focus of the present petition is the condition,

under Section 5, Rule 64 of the Rules of Court, that findings of fact of the

COMELEC, supported by substantial evidence, shall be final and non-

reviewable. Substantial evidence is that degree of evidence that a reasonable

mind might accept to support a conclusion.[57]

In light of our limited authority to review findings of fact, we do

not ordinarily review in a certiorari case the COMELEC’s appreciation and

evaluation of evidence. Any misstep by the COMELEC in this regard generallyinvolves an error of judgment, not of jurisdiction.

In exceptional cases, however, when the COMELEC’s action on the

appreciation and evaluation of evidence oversteps the limits of its discretion to the

point of being grossly unreasonable, the Court is not only obliged, but has the

constitutional duty to intervene.[58] When grave abuse of discretion is present,

resulting errors arising from the grave abuse mutate from error of judgment to one

of jurisdiction.[59]

Our reading of the petition shows that it is sufficient in form with respect to

the requisite allegation of jurisdictional error. Mitra clearly alleged the

COMELEC acts that were supposedly tainted with grave abuse of

discretion. Thus, we do not agree with the respondents’ contention that the petition

on its face raises mere errors of judgment that are outside

our certiorari jurisdiction. Whether the allegations of ―grave abuse‖ are dulysupported and substantiated is another matter and is the subject of the discussions

below.

Nature of the Case under Review:

COC Denial/Cancell ation Proceedings

















8/10/2019 art. vi- SEC 6-9


8/10/2019 art. vi- SEC 6-9


that, by law (the Local Government Code), must be reflected in the COC. The

reason for this is obvious: the candidate, if he or she wins, will work for and

represent the political unit where he or she ran as a candidate.[61]

The false representation under Section 78 must likewise be a ―deliberate

attempt to mislead, misinform, or hide a fact that would otherwise render a

candidate ineligible.‖ Given the purpose of the requirement, it must be ma de with

the intention to deceive the electorate as to the wouldbe candidate’s qualifications

for public office.[62] Thus, the misrepresentation that Section 78 addresses cannot

be the result of a mere innocuous mistake, and cannot exist in a situation where the

intent to deceive is patently absent, or where no deception on the electorate results.

The deliberate character of the misrepresentation necessarily follows from aconsideration of the consequences of any material falsity: a candidate who falsifies

a material fact cannot run; if he runs and is elected, he cannot serve; in both cases,

he can be prosecuted for violation of the election laws.

Based on these standards, we find that Mitra did not commit any

deliberate material misrepresentation in his COC. The COMELEC gravely

abused its discretion in its appreciation of the evidence, leading it to conclude that

Mitra is not a resident of Aborlan, Palawan. The COMELEC, too, failed to

critically consider whether Mitra deliberately attempted to mislead, misinform or

hide a fact that would otherwise render him ineligible for the position of Governor

of Palawan.

Under the evidenti ary situation of the case,

there is clearly no basis for the conclusion

that M itra del iberately attempted to mislead

the Palawan electorate.

From the start, Mitra never hid his intention to transfer his residence

from Puerto Princesa City to Aborlan to comply with the residence requirement of

a candidate for an elective provincial office. Republic Act No. 7160, otherwise

known as the Local Government Code, does not abhor this intended transfer of









8/10/2019 art. vi- SEC 6-9


residence, as its Section 39 merely requires an elective local official to be a

resident of the local government unit where he intends to run for at least one (1)

year immediately preceding the day of the election . In other words, the law

itself recognizes implicitly that there can be a change of domicile or residence, but

imposes only the condition that residence at the new place should at least be for a

year. Of course, as a continuing requirement or qualification, the elected official

must remain a resident there for the rest of his term.

Mitra’s domicile of or igin is undisputedly Puerto Princesa City. For him to

qualify as Governor – in light of the relatively recent change of status of Puerto

Princesa City from a component city to a highly urbanized city whose residents can

no longer vote for provincial officials – he had to abandon his domicile of originand acquire a new one within the local government unit where he intended to run;

this would be his domicile of choice. To acquire a domicile of choice,

jurisprudence, which the COMELEC correctly invoked, requires the following:

(1) residence or bodily presence in a new locality;

(2) an intention to remain there; and

(3) an intention to abandon the old domicile.[63]

The contentious issues in Mitra’s case relate to his bodily presence, or the

lack of it, in Aborlan, and the declaration he made on this point. The respondents

anchor their cause of action on the alleged falsity of Mitra’s statement that he is a

resident of Aborlan. To support this contention, the respondents claim that the

construction of the supposed Mitra residence or house, other than the leased

premises in Maligaya Feedmill, has yet to be completed, leaving Mitra with no

habitable place in Aborlan. When Mitra successfully refuted this original claim,the respondents presented sworn statements of Aborlan residents contradicting

Mitra’s claimed physical residence at the Maligaya Feedmill building in

Aborlan. They likewise point out, by sworn statements, that this alleged residence

could not be considered a house that Mitra could properly consider his residence,





8/10/2019 art. vi- SEC 6-9


on the view that the feedmill place is beneath what Mitra – a three-term

congressman and a member of the Mitra political clan of Palawan – would occupy.

Mitra, on the other hand, presented sworn statements of various persons

(including the seller of the land he purchased, the lessor of the Maligaya Feedmill,

and the Punong Barangay of the site of his residence) attesting to his physical

residence in Aborlan; photographs of the residential portion of Maligaya Feedmill

where he resides, and of his experimental pineapple plantation, farm, farmhouse

and cock farm; the lease contract over the Maligaya Feedmill; and the deed of sale

of the lot where he has started constructing his house. He clarified, too, that he

does not claim residence in Aborlan at the house then under construction; his

actual residence is the mezzanine portion of the Maligaya Feedmill building.

Faced with the seemingly directly contradictory evidence, the COMELEC

apparently grossly misread its import and, because it used wrong considerations,

was led into its faulty conclusion.

The seeming contradictions arose from the sworn statements of some

Aborlan residents attesting that they never saw Mitra in Aborlan; these are

controverted by similar sworn statements by other Aborlan residents that Mitra

physically resides in Aborlan. The number of witnesses and their conflicting

claims for and against Mitra’s residency appear to have sidetracked the

COMELEC. Substantial evidence, however, is not a simple question of number;

reason demands that the focus be on what these differing statements say.

For example, the sworn statements that Mitra has never been seen in

Aborlan border on the unbelievable and loudly speak of their inherent weakness asevidence.

Mitra has established business interests in Aborlan, a fact which the

respondents have never disputed. He was then the incumbent three-term

Representative who, as early as 2008, already entertained thoughts of running for

Governor in 2010. It is not disputed, too, that Mitra has started the construction of

8/10/2019 art. vi- SEC 6-9


a house on a lot he bought from RexterTemple; the site is very near the Maligaya

Feedmill that he leased from its owner, Carme Caspe.

While Mitra might not have stayed in Aborlan nor in Palawan for most of

2008 and 2009 because his office and activities as a Representative were

in Manila, it is hardly credible that he would not be seen in Aborlan. In this

regard, the sworn statement of the Punong Barangay of Isaub, Aborlan should

carry a lot more weight than the statements of punong barangay officials

elsewhere since it is the business of a punong barangay to know who the residents

are in his own barangay. The COMELEC apparently missed all these because it

was fixated on the perceived coldness and impersonality of Mitra’s dwelling.

The parties’ submitted documentary evidence likewise requires careful

consideration for the correct appraisal of its evidentiary value. On the one hand,

the document of sale of the Temple property, the building permit for the house

under construction, and the community tax certificate used in these transactions all

stated that Mitra’s residence wasPuerto Princesa City. On the other hand, Mitra

introduced a notarized contract of lease – supported by the sworn explanation of

the lessor (Carme Caspe) – showing that he indeed leased Maligaya Feedmill. He

submitted, too, a residence certificate showing Aborlan as his residence, and an

identification card of the House of Representatives showing Aborlan as his

residence.

We cannot give full evidentiary weight to the contract of sale as evidence

relating to Mitra’s residence for two reasons. First , it is a unilateral

contract executed by the seller (Rexter Temple); thus, his statement and belief as

to Mitra’s personal circumstances cannot be taken as conclusive against thelatter. Second , the sale involved several vendees, including Mitra’s brother

(Ramon B. Mitra) and one Peter Winston T. Gonzales; his co-vendees still live in

Puerto Princesa City; hence, they were all loosely and collectively described to

have their residence in Puerto Princesa City.[64] Parenthetically, the document

simply stated: ―I, REXTER TEMPLE, of legal age, Filipino, single and resident of





8/10/2019 art. vi- SEC 6-9


Isaub, Aborlan, Palawan, hereby by these presents, x x x do

hereby SELL, TRANSFER and CONVEY unto the said Vendees, ABRAHAM

KAHLIL B. MITRA, single; RAMON B. MITRA, married to Mary Ann Mitra;

PETER WINSTON T. GONZALES, married to Florecita R. Gonzales, all of legal

ages and residents [of] Rancho Sta. Monica, Brgy. Sta.

Monica, Puerto Princesa City, their heirs and assigns.‖[65] Thus, the contract

contained a mere general statement that loosely described the vendees

as PuertoPrincesa City residents. This general statement solely came from the

vendor.

The building permit, on the other hand, was filed by Mitra’s representative,

an architect named John Quillope, who apparently likewise filled the form. ThatMitra only signed the building permit form is readily discernible from an

examination of the face of the form; even the statement on his community tax

certificate bearing a Puerto PrincesaCity residence does not appear in his

handwriting.[66] Significantly, Mitra’s secretary – Lilia Camora – attested that it

was she who secured the community tax certificate for Mitra in February 2009

without the latter’s knowledge.[67] Annex ―M‖ of the respondents’ Petition before

the COMELEC indeed shows that the community tax certificate did not bear the

signature of Mitra.[68] Mitra secured his own certificate in Aborlan on March 18,

2009. This community tax certificate carries his own

signature.[69] Parenthetically, per Carme Caspe’s statement, Mitra leased the

feedmill residence in February 2008 and started moving in his belongings in March

2008, confirming the veracity of his Aborlan presence at the time he secured his

community tax certificate.[70] In these lights, the February 3, 2009 community tax

certificate, if at all, carries very little evidentiary value.

The respondents expectedly attacked the validity of the lease contract; they

contended in their Memorandum that the feedmill was situated in a forest land that

cannot be leased, and that the contract, while notarized, was not registered with the

required notarial office of the court.[71]





























8/10/2019 art. vi- SEC 6-9


The validity of the lease contract, however, is not the issue before us; what

concerns us is the question of whether Mitra did indeed enter into an agreement for

the lease, or strictly for the use, of the Maligaya Feedmill as his residence (while

his house, on the lot he bought, was under construction) and whether he indeed

resided there. The notary’s compliance with the notarial law likewise assumes no

materiality as it is a defect not imputable to Mitra; what is important is the parties’

affirmation before a notary public of the contract’s genuineness and due execution.

A sworn statement that has no counterpart in the respondents’ evidence in so

far as it provides details (particularly when read with the statement

of Ricardo Temple)[72] is Carme Caspe’s statement[73] on how Mitra’s transfer of

residence took place. Read together, these statements attest that the transfer ofresidence was accomplished, not in one single move but, through an incremental

process that started in early 2008 and was in place by March 2009, although the

house Mitra intended to be his permanent home was not yet then completed.[74]

In considering the residency issue, the COMELEC practically focused solely

on its consideration of Mitra’s residence at Maligaya Feedmill, on the basis of

mere photographs of the premises. In the COMELEC’s view (expressly voiced out

by the Division and fully concurred in by the En Banc), the Maligaya Feedmill

building could not have been Mitra’s residence because it is cold and utterly

devoid of any indication of Mitra’s personality and that it lacks loving attention

and details inherent in every home to make it one’s residence .[75] This was the

main reason that the COMELEC relied upon for its conclusion.

Such assessment, in our view, based on the interior design and furnishings of

a dwelling as shown by and examined only through photographs, is far fromreasonable; the COMELEC thereby determined the fitness of a dwelling as a

person’s residence based solely on very personal and subjective assessment

standards when the law is replete with standards that can be used. Where a

dwelling qualifies as a residence – i.e., the dwelling where a person permanently

















8/10/2019 art. vi- SEC 6-9


intends to return to and to remain[76] – his or her capacity or inclination to decorate

the place, or the lack of it, is immaterial.

Examined further, the COMELEC’s reasoning is not only intensely

subjective but also flimsy, to the point of grave abuse of discretion when compared

with the surrounding indicators showing the Mitra has indeed been physically

present in Aborlan for the required period with every intent to settle

there. Specifically, it was lost on the COMELEC majority (but not on the Dissent)

that Mitra made definite, although incremental transfer moves, as shown by the

undisputed business interests he has established in Aborlan in 2008; by the lease of

a dwelling where he established his base; by the purchase of a lot for his permanent

home; by his transfer of registration as a voter in March 2009; and by theconstruction of a house all viewed against the backdrop of a bachelor

Representative who spent most of his working hours in Manila, who had a whole

congressional district to take care of, and who was establishing at the same time his

significant presence in the whole Province of Palawan.

From these perspectives, we cannot but conclude that the COMELEC’s

approach – i.e., the application of subjective non-legal standards and the gross

misappreciation of the evidence – is tainted with grave abuse of discretion, as the

COMELEC used wrong considerations and grossly misread the evidence in

arriving at its conclusion. In using subjective standards, the COMELEC

committed an act not otherwise within the contemplation of law on an evidentiary

point that served as a major basis for its conclusion in the case.

With this analysis and conclusion in mind, we come to the critical question

of whether Mitra deliberately misrepresented that his residence is in Aborlan todeceive and mislead the people of the Province of Palawan.

We do not believe that he committed any deliberate misrepresentation given

what he knew of his transfer, as shown by the moves he had made to carry it

out. From the evidentiary perspective, we hold that the evidence confirming




8/10/2019 art. vi- SEC 6-9


residence in Aborlan decidedly tilts in Mitra’s favor; even assuming the worst for

Mitra, the evidence in his favor cannot go below the level of an equipoise,

i.e., when weighed, Mitra’s evidence of transfer and residence in Aborlan cannot

be overcome by the respondents’ evidence that he remained a Puerto Princesa City

resident. Under the situation prevailing when Mitra filed his COC , we cannot

conclude that Mitra committed any misrepresentation, much less a deliberate one,

about his residence.

The character of Mitra’s representation before the COMELEC is an aspect

of the case that the COMELEC completely failed to consider as it focused mainly

on the character of Mitra’s feedmill residence. For this reason, the COMELEC

was led into error – one that goes beyond an ordinary error of judgment. By failingto take into account whether there had been a deliberate misrepresentation in

Mitra’s COC, the COMELEC committed the grave abuse of simply assuming that

an error in the COC was necessarily a deliberate falsity in a material

representation. In this case, it doubly erred because there was no falsity; as the

carefully considered evidence shows, Mitra did indeed transfer his residence within

the period required by Section 74 of the OEC.

The respondents significantly ask us in this case to adopt the same faulty

approach of using subjective norms, as they now argue that given his stature as a

member of the prominent Mitra clan of Palawan, and as a three term

congressman, it is highly incredible that a small room in a feed mill has served as

his residence since 2008.[77]

We reject this suggested approach outright for the same reason we

condemned the COMELEC’s use of subjective non-legal standards. Mitra’s feedmill dwelling cannot be considered in isolation and separately from the

circumstances of his transfer of residence, specifically, his expressed intent to

transfer to a residence outside of Puerto Princesa City to make him eligible to run

for a provincial position; his preparatory moves starting in early 2008; his initial

transfer through a leased dwelling; the purchase of a lot for his permanent home;





8/10/2019 art. vi- SEC 6-9


8/10/2019 art. vi- SEC 6-9


We can reasonably conclude from all these that Mitra is not oblivious to the

needs, difficulties, aspirations, potential for growth and development, and all

matters vital to the common welfare of the constituency he intends to serve. Mitra

who is no stranger to Palawan has merely been compelled – after serving three

terms as representative of the congressional district that

includes Puerto Princesa City and Aborlan – by legal developments to transfer his

residence to Aborlan to qualify as a Province of Palawan voter. To put it

differently, were it not for the reclassification of Puerto Princesa City from a

component city to a highly urbanized city, Mitra would not have encountered any

legal obstacle to his intended gubernatorial bid based on his knowledge of and

sensitivity to the needs of the Palawan electorate.

This case, incidentally, is not the first that we have encountered where a

former elective official had to transfer residence in order to continue his public

service in another political unit that he could not legally access, as a candidate,

without a change of residence.

In Torayno, Sr. v. COMELEC ,[79] former Governor Vicente Y. Emano re-

occupied a house he owned and had leased out in Cagayan de Oro City to qualify

as a candidate for the post of Mayor of that city (like Puerto Princesa City, a highly

urbanized city whose residents cannot vote for and be voted upon as elective

provincial officials). We said in that case that –

In other words, the actual, physical and personal presence of herein privaterespondent in Cagayan de Oro City is substantial enough to show his intention tofulfill the duties of mayor and for the voters to evaluate his qualifications for themayorship. Petitioners' very legalistic, academic and technical approach to theresidence requirement does not satisfy this simple, practical and common-senserationale for the residence requirement.

In Asistio v. Hon. Trinidad Pe-Aguirre,[80] we also had occasion to rule on

the residency and right to vote of former Congressman Luis A. Asistio who had

been a congressman for Caloocan in 1992, 1995, 1998 and 2004, and, in the words

of the Decision, ―is known to be among the prominent political families









8/10/2019 art. vi- SEC 6-9


in Caloocan City.‖[81] We recognized Asistio’s position that a mistake had been

committed in his residency statement, and concluded that the mistake is not ―proof

that Asistio has abandoned his domicile in Caloocan City, or that he has

established residence outside of Caloocan City.‖ By this recognition, we

confirmed that Asistio has not committed any deliberate misrepresentation in his

COC.

These cases are to be distinguished from the case of Velasco v.

COMELEC [82] where the COMELEC cancelled the COC of Velasco, a mayoralty

candidate, on the basis of his undisputed knowledge, at the time he filed his COC,

that his inclusion and registration as a voter had been denied . His failure to

register as a voter was a material fact that he had clearly withheld from theCOMELEC; he knew of the denial of his application to register and yet concealed

his non-voter status when he filed his COC. Thus, we affirmed the COMELEC’s

action in cancelling his COC.

If there is any similarity at all in Velasco and the present case, that similarity

is in the recognition in both cases of the rule of law. In Velasco, we recognized –

based on the law – that a basic defect existed prior to his candidacy, leading to his

disqualification and the vice-mayor-elect’s assumption to the office. In the present

case, we recognize the validity of Mitra’s COC, again on the basis of substantive

and procedural law, and no occasion arises for the vice-governor-elect to assume

the gubernatorial post .

M itr a has been proclaimed winner

in the electoral contest and has therefore

the mandate of the electorate to serve







8/10/2019 art. vi- SEC 6-9


8/10/2019 art. vi- SEC 6-9


any action involving the possibility of a reversal of the popular electoralchoice, this Court must exert utmost effort to resolve the issues in amanner that would give effect to the will of the majority, for it is merelysound public policy to cause elective offices to be filled by those whoare the choice of the majority. To successfully challenge a winning

candidate's qualifications, the petitioner must clearly demonstrate

that the ineligibility is so patently antagonistic to constitutional and

legal principles that overriding such ineligibility and thereby giving

effect to the apparent will of the people would ultimately create

greater prejudice to the very democratic institutions and juristic

traditions that our Constitution and laws so zealously protect and

promote. [Emphasis supplied.]

With the conclusion that Mitra did not commit any material

misrepresentation in his COC, we see no reason in this case to appeal to the

primacy of the electorate’s will. We cannot deny, however, that the people

of Palawan have spoken in an election where residency qualification had been

squarely raised and their voice has erased any doubt about their verdict on Mitra’s

qualifications.

WHEREFORE, premises considered, we GRANT the petitionand ANNUL the assailed COMELEC Resolutions in Antonio V. Gonzales and

Orlando R. Balbon, Jr. v. Abraham Kahlil B. Mitra (SPA No. 09-038

[C]). We DENY the respondents’ petition to cancel Abraham Kahlil Mitra’s

Certificate of Candidacy. No costs.

SO ORDERED.

FERNANDEZ VS HRET

This petition for certiorari and prohibition filed under Rule 65 of the Rules of

Court stems from the Decision[1] in HRET CASE No. 07-034 for quo

warranto entitledJesus L. Vicente v. Dani lo Ramon S. Fernandez promulgated by

http://sc.judiciary.gov.ph/jurisprudence/2009/december2009/187478.htm#_ftn1



8/10/2019 art. vi- SEC 6-9


the House of Representatives Electoral Tribunal (HRET) on December 16, 2008 as

well as Minute Resolution No. 09-080 promulgated on April 30, 2009, likewise

issued by the HRET, denying petitioner’s Motion for Reconsideration.

The dispositive portion of the questioned Decision reads as follows:

WHEREFORE, the Tribunal DECLARES respondent DaniloRamon S. Fernandez ineligible for the Office of Representative of [the]First District of Laguna for lack of residence in the district and[ORDERS] him to vacate his office.

As soon as this Resolution becomes final and executory, letnotices be sent to the President of the Philippines, the House of

Representatives through the Speaker, and the Commission on Auditthrough its Chairman, pursuant to Rule 96 of the 2004 Rules of theHouse of Representatives Electoral Tribunal.

No pronouncement as to costs.

SO ORDERED.[2]

On December 22, 2008, petitioner Danilo Ramon S. Fernandez (petitioner)

filed a Motion for Reconsideration of the above-quoted Decision. The HRET, in

the questioned Resolution, found petitioner’s Motion to be ―bereft of new issues/

arguments that [had] not been appropriately resolved‖[3] in the Decision.

Petitioner thus applied for relief to this Court, claiming that the questioned

Decision and Resolution should be declared null and void for having been

respectively issued with grave abuse of discretion amounting to lack of or in excess

of jurisdiction, and praying for the issuance of a writ of prohibition to enjoin and prohibit the HRET from implementing the questioned Decision and Resolution.[4]

The antecedent facts are clear and undisputed.












8/10/2019 art. vi- SEC 6-9


8/10/2019 art. vi- SEC 6-9


Article VI, Section 6 of the 1987 Constitution. In support of his petition, private

respondent argued that petitioner falsely declared under oath: (1) his alleged Sta.

Rosa residence; (2) the period of his residence in the legislative district before May

14, 2007, which he indicated as one year and two months; and (3) his eligibility for

the office where he was seeking to be elected. Private respondent presented the

testimony of a certain Atty. Noel T. Tiampong, who stated that petitioner is not

from the alleged Sta. Rosa residence but a resident of BarangayPulo, Cabuyao,

Laguna; as well as the respective testimonies of Barangay Balibago Health

Workers who attested that they rarely, if ever, saw respondent in the leased

premises at the alleged Sta. Rosa residence; and other witnesses who testified that

contrary to the misrepresentations of petitioner, he is not a resident of the alleged

Sta. Rosa residence. A witness testified that petitioner attempted to coerce some ofthe other witnesses to recant their declarations and change their affidavits. Finally,

private respondent presented as witness the lawyer who notarized the Contract of

Lease dated March 8, 2007 between petitioner as lessee and Bienvenido G.

Asuncion as lessor .[10]

Petitioner, as respondent in HRET Case No. 07-034, presented as his

witnesses residents of Villa de Toledo who testified that they had seen respondent

and his family residing in their locality, as well as Bienvenido G. Asuncion who

testified that petitioner is the lessee in Unit No. 13 Block 1 Lot I, Maharlika St.,

Villa de Toledo Subdivision, Brgy. Balibago, Sta. Rosa City, Laguna. Petitioner

likewise presented Mr. Joseph Wade, President of South Point Homeowner’s

Association of Cabuyao, Laguna, as well as Engr. Larry E. Castro (Castro), who

testified that since February 2006 up to the present, petitioner had no longer been

residing in his property located at Block 28, Lot 18, South Point Subdivision,

Cabuyao, Laguna, and that said property was being offered for sale andtemporarily being used by Castro, together with some security men of petitioner

and employees of Rafters Music Lounge owned by petitioner .[11] Petitioner

testified that he had been a resident of Sta. Rosa even before February 2006; that

he owned property in another Sta. Rosa subdivision (Bel-Air); that he and his wife









8/10/2019 art. vi- SEC 6-9


had put up a business therein, the ―RAFTERS‖ restaurant/ bar; and that he had

prior residence in another place also at Sta. Rosa as early as 2001.[12]

Since the HRET ruled in favor of private respondent, this petition was filed

before us.

In petitioner’s assignment of errors, he alleges that the HRET grievously

erred and committed grave abuse of discretion:

1. In not placing on the quo warranto petitioner Jesus L. Vicente the

burden of proving that then respondent (now petitioner) Fernandez is

not a qualified candidate for Representative of the First District ofthe Province of Laguna;

2. When it disregarded the ruling of a co-equal tribunal in SPA No. 07-

046;

3. When it added a property qualification to a Member of Congress;

4. When it determined that the petitioner failed to comply with the one

(1) year residency requirement based on the contract of lease;

5. When it completely disregarded the testimonies of material witnesses;

6. When it failed to consider the intent of the petitioner to transfer

domicile based on the totality of the evidence adduced; and

7. When it failed to find the petitioner in HRET Case No. 07-034 guilty

of forum-shopping.[13]

On the first assignment of error, petitioner questions the following

pronouncement of the HRET in its decision:









8/10/2019 art. vi- SEC 6-9


In the case before us, petitioner has clearly asserted, and

respondent does not deny, that his domicile of origin is Pagsanjan in theFourth District of Laguna. Hence, the burden is now on respondent to

prove that he has abandoned his domicile of origin, or since his birth,where he formerly ran for provincial Board Member of Laguna in 1998,for Vice-Governor of Laguna in 2001 and for Governor of Laguna in2004. In all his Certificates of Candidacy when he ran for these positions, he indicated under oath that his domicile or permanentresidence was in Pagsanjan in the Fourth District of Laguna, not in theFirst District where he later ran in the last elections.[14]

Petitioner contends that ―it is a basic evidentiary rule that the burden of

proof is on he who alleges, and he who relies on such an allegation as his cause ofaction should prove the same.‖[15] Since private respondent is the party alleging

that petitioner is not eligible for his position, it is therefore incumbent on the

former, who filed the quo warranto case before the HRET, to prove such

allegation. He cites in support of his contention Sec. 1, Rule 131 of the Rules of

Court, to wit:

SECTION 1. Burden of proof . — Burden of proof is the duty of a

party to present evidence on the facts in issue necessary to establish hisclaim or defense by the amount of evidence required by law.

Petitioner avers that private respondent failed to establish his claim and to

adduce evidence sufficient to overcome petitioner’s eligibility to be a candidate for

Representative of the First District of Laguna.

On the second assignment of error, petitioner submits that the HRET should

have been ―guided and/or cautioned‖ by the COMELEC’s dispositions in SPA No.

07-046, wherein he was adjudged as qualified to run for the position of

Congressman of the First District of Laguna by an agency tasked by law and the

Constitution to ascertain the qualifications of candidates before election. Petitioner








8/10/2019 art. vi- SEC 6-9


claims that the HRET should have respected the findings of the COMELEC and

should have discreetly denied the petition.

On the third assignment of error, petitioner argues that under Article V,

Section 1, of the 1987 Constitution, any citizen of the Philippines who is a

qualified voter may likewise, if so qualified under the appertaining law and the

constitution, be able to run and be voted for as a candidate for public office. Said

provision reads:

SECTION 1. Suffrage may be exercised by all citizens ofthe Philippines not otherwise disqualified by law, who are at leasteighteen years of age, and who shall have resided in the Philippines for

at least one year and in the place wherein they propose to vote for atleast six months immediately preceding the election. No literacy,

property, or other substantive requirement shall be imposed on the

exercise of suffrage.

Petitioner alleges that in the questioned Decision, the HRET added a new

qualification requirement for candidates seeking election to the position of

Member of the House of Representatives, and that is, they must be real property

owners in the legislative district where they seek election.

On the fourth assignment of error, petitioner addresses private respondent’s

arguments against the contract of lease that he presented as part of the proof of his

compliance with the residency requirement. Petitioner asserts that the

nomenclature used by contracting parties to describe a contract does not determine

its nature, but the decisive factor is the intention of the parties to a contract – as

shown by their conduct, words, actions, and deeds – prior to, during and after

executing the agreement.[16] Petitioner claims that he has presented ample proof of

his residency in terms of evidence more numerous and bearing more weight and

credibility than those of private respondent. He proceeds to highlight some of the

evidence he offered in the quo warranto case that allegedly prove that his transfer

of residence and intention to reside in Sta. Rosa were proven by his stay in Villa de





8/10/2019 art. vi- SEC 6-9


Toledo, to wit: (1) even earlier than 2006, he had purchased a house and lot in Bel-

Air Subdivision in Sta. Rosa which he rented out because he was not yet staying

there at that time; (2) he sent his children to schools in Sta. Rosa as early as 2002;

and (3) he and his wife established a restaurant business there in 2003. Petitioner

contends that when he and his family moved to Sta. Rosa by initially renting a

townhouse in Villa de Toledo, it cannot be said that he did this only in order to run

for election in the First Legislative District.[17]

As regards the alleged infirmities characterizing the execution of the contract

of lease and the renewal of said contract of lease, petitioner contends that these are

not material since the lessor, Bienvenido Asuncion, affirmed his stay in his

townhouse; the neighbors and other barangay personalities confirmed his and hisfamily’s stay in their area; and petitioner has continued actual residence in Sta.

Rosa from early 2006 to the present. Petitioner claims that all these prove that he

had effectively changed his residence and could therefore likewise transfer his

voter’s registration from Pagsanjan to Sta. Rosa under Sec. 12 of R.A. No.

8189.[18] Petitioner also alleges that he had become qualified to seek elective office

in his new place of residence and registration as a voter.

To further prove that he has made Sta. Rosa his domicile of choice from

early 2006 to the present, petitioner points out that he and his wife had purchased a

lot in the same area, Villa de Toledo, on April 21, 2007, built a house thereon, and

moved in said house with their family.

Regarding the non-notarization of the contract of lease raised by private

respondent, petitioner avers that this ―does not necessarily nullify nor render the

parties’ transaction void ab initio.‖[19]

On the fifth assignment of error, petitioner alleges that the HRET relied on

private respondent’s witnesses in negating petitioner’s claim that he had validly

resided at the alleged Sta. Rosa residence for more than one year and two months

prior to the May 14, 2007 elections, and did not touch on the testimonies of his












8/10/2019 art. vi- SEC 6-9


witnesses. The questioned Decision pointed out petitioner’s alleged non-

appearance in the day-to-day activities of the Homeowners’ Association and

considered this as failure to prove that he is a resident of Villa de Toledo, without

considering the fact that private respondent failed to discharge the burden of proof

in support of his indictment against petitioner.

On the sixth assignment of error, petitioner claims that the questioned

Decision was arrived at based on the perceived weakness of his evidence and

arguments as respondent, instead of the strength of private respondent’s own

evidence and arguments in his quo warranto petition.

On the seventh and last assignment of error, petitioner alleges that thematters raised in HRET Case No. 07-034 were no different from the ones raised

by private respondent before the COMELEC in SPA No. 07-046 (PES); thus,

private respondent’s petition should have been dismissed by the HR ET for forum-

shopping.

In his Comment dated June 22, 2009, private respondent summarized the

issues raised in petitioner’s assignment of errors into two: (1) those that involve the

issue of conflict of jurisdiction between the HRET and the COMELEC respecting

the eligibility, qualification/s or disqualification of elective public officials; and (2)

those that involve factual and evidentiary matters designed as supposed errors.[20]

Regarding the first issue, private respondent contends that the 1987

Constitution is most equivocal in declaring that the HRET is the sole judge of all

contests relating to the election, returns and qualifications of Members of the

House of Representatives, under the following provision:Art. VI, SECTION 17. The Senate and the House of Representatives

shall each have an Electoral Tribunal which shall be the sole judge of all contestsrelating to the election, returns, and qualifications of their respective Members.





8/10/2019 art. vi- SEC 6-9


Private respondent alleges that the above constitutional provision was

adopted by the HRET in its Rules, which read:

THE 1998 RULES OF THE HOUSE OF REPRESENTATIVES

ELECTORAL TRIBUNAL

The House of Representatives Electoral Tribunal hereby adopts and promulgates the following Rules governing its proceedings as the sole judge of all contests relating to the election, returns and qualifications ofMembers of the House of Representatives, pursuant to Section 17, ArticleVI of the Constitution.

xxx xxx xxx

RULE 17

Quo Warranto

A verified petition for quo warranto contesting the election of aMember of the House of Representatives on the ground of ineligibility or ofdisloyalty to the Republic of thePhilippines shall be filed by any voterwithin ten (10) days after the proclamation of the winner. The party filing

the petition shall be designated as the petitioner while the adverse partyshall be known as the respondent.

The rule on verification provided in Section 16 hereof shall apply to petitions for quo warranto.

xxx xxx xxx

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 ofthe 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

8/10/2019 art. vi- SEC 6-9


8/10/2019 art. vi- SEC 6-9


Respondent’s connection to the First District of Laguna is an alleged

lease agreement of a townhouse unit in the area. The intention not to

establish a permanent home in the First District of Laguna is evident in

his leasing a townhouse unit instead of buying one. The short length oftime he claims to be a resident of the First District of Laguna (and the

fact that his domicile of origin is Pagsanjan, Laguna is not within the

First District of Laguna) indicate that his sole purpose 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 First District of

Laguna.[23]

xxx xxx xxx

Exhibit –―3‖ is the very document that was produced and presented by respondent to attest that while the original contract, replete withinfirmities, as only for one year expiring even before the May 14, 2007elections, here now comes the renewed Contract of Lease, signed byrespondent himself, no longer his wife, immaculately perfect on its face,now notarized and properly witnessed, and even the terms and conditionsthereof undeniably clear and explicit, with the added feature of a prolonged2-year period of lease that will go well beyond the May 14, 2007 elections.

We cannot however, simply accept the renewed Contract of Lease

(Exhibit –―3‖) on its face. In fact, as succinctly pointed out by petitioner,the renewed Contract of Lease suffers from a more grievous infirmity.

x x x As respondent’s brother -in-law, Atty. Macalalag is prohibitedfrom notarizing a document that involves the respondent.[24]

xxx xxx xxx

But the lack of notarial authentication does not even constitute themain defect of [Exhibit ―3‖]. The surfacing of Exhibit ―3‖ very late in the

day cannot but lead to the conclusion that the same was a mereafterthought. x x x[25]

xxx xxx xxx

We have to emphasize that the initial one-year lease contract expiredon February 27, 2007, and as such, standing alone, the same cannot prove












8/10/2019 art. vi- SEC 6-9


and will not establish the declared one-year and two months priorresidence eligibility requirement of respondent, unless it is shown that theexpired lease agreement was extended or renewed beyond the May 14,2007 elections, and, more importantly, accompanied by a copy of theclaimed existing renewed lease agreement. x x x[26]

xxx xxx xxx

By the unexplained delay in the production and presentation ofExhibit ―3‖, respondent’s residence qualifications suffered a fatal

blow. For it can no longer be denied that respondent’s claimed residence

at the alleged townhouse unit in Sta. Rosa for one year and two months prior to the May 14, 2007 election is not only most doubtful, but alsonegates the concept of permanency that would suffice to proveabandonment of respondent’s previous residence or domicile at

Pagsanjan.[27]

Furthermore, the HRET alleges that, as it found in the questioned Decision,

the witnesses presented who were residents of Sta. Rosa, Laguna were consistent

and credible in disputing petitioner’s alleged physical presence at any given time in

said place. Among these witnesses were three Barangay Health Workers, one of

whom, Rowena Dineros, submitted an affidavit that her job required her to

frequently go around Villa de Toledo, knocking on every household door to inquireabout its occupants, and not once did she see petitioner at the alleged Sta. Rosa

residence. The HRET claims that this testimony was corroborated by another

Barangay Health Worker (BHW), Jeanet Cabingas, who stated in her affidavit that

every time she accompanied her niece, who was petitioner’s goddaughter, to

request a favor from petitioner, the latter would ask them to return to his house in

Cabuyao, Laguna, even if she was a resident of Sta. Rosa.[28] The Solicitor General

quotes the following portion from the questioned Decision:

What appears very evident from this is that respondent has absolutelynot the slightest intention to reside in Sta. Rosa permanently.












8/10/2019 art. vi- SEC 6-9


This ineluctably confirms that respondent has not developed animus

manendi over the latter place, Sta. Rosa[,] and that he has not actuallyabandoned his old domicile of origin in Pagsanjan.[29]

As for the third BHW witness, Flocerfina Torres, the HRET gives credence toher testimony that she conducted a household census in Villa de Toledo every three

months, but not once had she seen petitioner in the alleged Sta. Rosa residence, and

that she was advised by petitioner to proceed to his house in Cabuyao, Laguna

when she had attempted to solicit from petitioner at his ―Rafter’s establishment

because it was near her residence in Sta. Rosa.‖ From the foregoing testimonies,

the HRET found in the questioned Decision that:

The uniform testimony of our 3 BHW witnesses disputing the physical presence of the respondent at his claimed Toledo address duringall the time that they were performing their routine duties at thatcommunity, and which encompassed the period of ―1 year and 2 months

before the May 14, 2007 election‖, revealed that he was not staying in

Sta. Rosa.[30]

The HRET likewise contends that the fact that petitioner registered as a voter

in Sta. Rosa does not prove that he is a resident thereat, given that a voter isrequired to reside in the place wherein he proposes to vote only for six

months preceding the election.

The HRET avers that this Court had explained the importance of property

ownership in Aquino v. COMELEC, et al .[31] and finds no merit in petitioner’s

insistence that the will of the electorate attests to his residence in Sta. Rosa

because, the HRET further avers, ―[a] disqualified candidate cannot assume

office.‖[32]

The HRET likewise contends that the purpose of the residency requirement

is to ensure that the person elected is familiar with the needs and problems of his

constituency.
















8/10/2019 art. vi- SEC 6-9


8/10/2019 art. vi- SEC 6-9


the evidence submitted by the parties, we find for petitioner, taking into account

our ruling in Frivaldo v. COMELEC ,[35] which reads in part:

This Court has time and again liberally and equitably construed

the electoral laws of our country to give fullest effect to the manifestwill of our people, for in case of doubt, political laws must

be interpreted to give life and spirit to the popular mandate freelyexpressed through the ballot. Otherwise stated, legal niceties andtechnicalities cannot stand in the way of the sovereign will. xxx(Emphasis supplied)

For the foregoing reason, the Court must exercise utmost caution before

disqualifying a winning candidate, shown to be the clear choice of the constituentsthat he wishes to represent in Congress.

The qualifications of a member of the House of Representatives are found

in Article VI, Section 6 of the Constitution, which provides:

Section 6. No person shall be a Member of the House ofRepresentatives unless he is a natural-born citizen of the Philippines and,on the day of the election, is at least twenty-five years of age, able toread and write, and, except the party-list representatives, a registeredvoter in the district in which he shall be elected, and a resident thereof

for a period of not less than one year immediately preceding the day

of the election. (Emphasis supplied)

We find the interpretation of the HRET of the residency requirement under

the Constitution to be overly restrictive and unwarranted under the factual

circumstances of this case.

The evidence presented by private respondent before the HRET hardly

suffices to prove that petitioner failed to comply with the one-year residency

requirement under the Constitution. Private respondent’s documentary evidence to

disqualify petitioner mainly consisted of (a) petitioner’s certificates of candidacy





8/10/2019 art. vi- SEC 6-9


(COCs) for various positions in 1998, 2001 and 2004, which all indicated his

residence as Pagsanjan, Laguna within the Fourth District of said province; (b) his

application for a driver’s license in August 2005 that indicated Pagsanjan, Laguna

as his residence; and (c) the statement in his COCs including his 2007 COC for

Congressman for the First District of Laguna that his place of birth was Pagsanjan,

Laguna.

The only thing these pieces of documentary evidence prove is that

petitioner’s domicile of origin was Pagsanjan, Laguna and it remained his domicile

up to 2005, at the latest. On the other hand, what petitioner asserted in his 2007

COC is that he had been a resident of Sta. Rosa, Laguna in the First District of

Laguna as of February 2006 and respondent’s evidence failed contradict that claim.

If it is true that petitioner and his family had been living in Sta. Rosa,

Laguna as of February 2006 with the intent to reside therein permanently, that

would more than fulfill the requirement that petitioner be a resident of the district

where he was a candidate for at least one year before election day, which in this

case was May 14, 2007.

In order to buttress his claim that he and his family actually resided in Sta.

Rosa, Laguna beginning at least in February 2006, petitioner’s evidence included,

among others: (a) original and extended lease contracts for a townhouse in Villa de

Toledo, Barangay Balibago, Sta. Rosa, Laguna; (b) certification issued by the

President of the Villa de Toledo Homeowners Association, Inc, that petitioner has

been a resident of said Subdivision since February 2006; (c) affidavits of

petitioner’s neighbors in Villa de Toledo attesting that petitioner has been a

resident of said subdivision since February 2006; (d) certification of the barangaychairman of Barangay Balibago, Sta. Rosa, Laguna that petitioner is a resident of

Villa de Toledo within the said barangay; (e) certificates of attendance of

petitioner’s children in schools located in Sta. Rosa, Laguna since 2005; and (f)

DTI certificates of business issued in the name of petitioner and his wife to show

that they own and operate businesses in Sta. Rosa, Laguna since 2003.

8/10/2019 art. vi- SEC 6-9


8/10/2019 art. vi- SEC 6-9


1996; (3) the marriage certificate, dated January 18, 1998, between private respondent and Lerma Dumaguit; (4) the certificate of live birth of private respondent's second daughter; and (5) various letters addressed to private respondent and his family, which all show that private respondentwas a resident of Tuguegarao, Cagayan for at least one (1) yearimmediately preceding the elections on May 11, 1998.

There is thus substantial evidence supporting the finding that privaterespondent had been a resident of the Third District of Cagayan and thereis nothing in the record to detract from the merit of this factual finding.

Petitioner contends that the fact that private respondent was a residentof Gattaran, at least until June 22, 1997, is shown by the following

documentary evidence in the record, to wit: (1) his certificates ofcandidacy for governor of Cagayan in the 1988, 1992 and 1995 elections;(2) his voter's registration records, the latest of which was made on June22, 1997; and (3) the fact that private respondent voted in Gattaran,Cagayan, in the elections of 1987, 1988, 1992 and 1995.

The contention is without merit. The fact that a person is registered asa voter in one district is not proof that he is not domiciled in anotherdistrict. Thus, in Faypon v. Quirino, this Court held that the registration of

a voter in a place other than his residence of origin is not sufficient toconsider him to have abandoned or lost his residence.

Nor is it of much importance that in his certificates of candidacy

for provincial governor in the elections of 1988, 1992, and 1995,

private respondent stated that he was a resident of Gattaran. Under

the law, what is required for the election of governor is residency in

the province, not in any district or municipality, one year before the

election.

Moreover, as this Court said in Romualdez-Marcos v. COMELEC :

It is the fact of residence, not a statement in a certificate ofcandidacy, which ought to be decisive in determining whether or notan individual has satisfied the constitution's residency qualification

8/10/2019 art. vi- SEC 6-9


requirement. The said statement becomes material only when there isor appears to be a deliberate attempt to mislead, misinform, or hide afact which would otherwise render a candidate ineligible.

In this case, although private respondent declared in his certificates ofcandidacy prior to the May 11, 1998 elections that he was a resident ofGattaran, Cagayan, the fact is that he was actually a resident of the ThirdDistrict not just for one (1) year prior to the May 11, 1998 elections butfor more than seven (7) years since July 1990. His claim that he had

been a resident of Tuguegarao since July 1990 is credible considering

that he was governor from 1988 to 1998 and, therefore, it would be

convenient for him to maintain his residence in Tuguegarao, which is

the capital of the province of Cagayan.

As always, the polestar of adjudication in cases of this natureis Gallego v. Vera, in which this Court held: "[W]hen the evidence on

the alleged lack of residence qualification is weak or inconclusive and

it clearly appears, as in the instant case, that the purpose of the law

would not be thwarted by upholding the right to the office, the will ofthe electorate should be respected." In this case, considering the purpose of the residency requirement, i.e., to ensure that the personelected is familiar with the needs and problems of his constituency, therecan be no doubt that private respondent is qualified, having been governor

of the entire province of Cagayan for ten years immediately before hiselection as Representative of that province's Third District.[37]

Thus, in the case above, the Court found that the affidavit of the lessor and

the contract of lease were sufficient proof that private respondent therein had

changed his residence. In the case now before us, although private respondent

raised alleged formal defects in the contract of lease, the lessor himself testified

that as far as he was concerned, he and petitioner had a valid contract and heconfirmed that petitioner and his family are the occupants of the leased premises.

Petitioner correctly pointed out that the lack of proper notarization does not

necessarily nullify nor render the parties’ transaction void ab initio. In Mallari v.





8/10/2019 art. vi- SEC 6-9


8/10/2019 art. vi- SEC 6-9


election day, where they have constructed a home for their family’s use as a

residence. In all, petitioner had adequately shown that his transfer of residence to

Sta. Rosa wasbona fide and was not merely for complying with the residency

requirement under election laws.

It was incumbent upon private respondent to prove his assertion that

petitioner is indeed disqualified from holding his congressional seat. Private

respondent’s burden of proof was not only to establish that petitioner’s domicile of

origin is different from Sta. Rosa but also that petitioner’s domicile for the one

year prior to election day continued to be Pagsanjan, Laguna which was

petitioner’s domicile of origin or that petitioner had chosen a domicile other than

Sta. Rosa, Laguna for that same period. In other words, to prove petitioner’sdisqualification, the relevant period is the one year period prior to election day. It

would be absurd to rule that the petitioner in a quo warranto suit only needs to

prove that the candidate had some other previous domicile, regardless of how

remote in time from election day that previous domicile was established, and then

the candidate would already have the burden to prove abandonment of that

previous domicile. It is the burden of the petitioner in a quo warranto case to first

prove the very fact of disqualification before the candidate should even be called

upon to defend himself with countervailing evidence.

In our considered view, private respondent failed to discharge his burden of

proof. Petitioner’s COCs for previous elections and his 2005 application for a

driver’s license only proved that his domicile of origin was Pagsanjan, Laguna and

it remained to be so up to 2005. Affidavits/testimonies of respondent’s witnesses,

at most, tended to prove that petitioner was on several instances found in his house

in Cabuyao, Laguna, which was not even his domicile of origin. Cabuyao, Lagunais in the Second District of Laguna while petitioner’s domicile of origin,

Pagsanjan, is in the Fourth District of Laguna. Based on private respondent’s own

documentary submissions, Cabuyao was never even stated as a domicile or

residence in any of the petitioner’s COCs. Moreover, owning an abode in Cabuyao

where petitioner is occasionally found did not prove that Cabuyao is petitioner’s

8/10/2019 art. vi- SEC 6-9


real domicile. Indeed, disregarding Cabuyao as petitioner’s domicile would be

consistent with the established principle that physical presence in a place sans the

intent to permanently reside therein is insufficient to establish domicile. Neither

did private respondent’s submissions refute petitioner’s evidence that since

February 2006 petitioner has chosen Sta. Rosa as his domicile.

To summarize, private respondent’s own evidence did not categorically

establish where petitioner’s domicile is nor did said evidence conclusively prove

that for the year prior to the May 14, 2007 petitioner had a domicile other than

where he actually resided, i.e. Sta. Rosa, Laguna. To be sure, Gallego v.

Vera[41] decreed that:

We might add that the manifest intent of the law in fixing aresidence qualification is to exclude a stranger or newcomer,unacquainted with the conditions and needs of a community and notidentified with the latter, from an elective office to serve thatcommunity; and when the evidence on the alleged lack of residence

qualification is weak or inconclusive and it clearly appears, as in the

instant case, that the purpose of the law would not be thwarted by

upholding the right to the office, the will of the electorate should berespected. xxx xxx xxx (Emphasis supplied)

Frivaldo[42] likewise prescribed that:

xxx xxx xxx To successfully challenge a winning candidate'squalifications, the petitioner must clearly demonstrate that the

ineligibility is so patently antagonistic to constitutional and legal

principles that overriding such ineligibility and thereby giving effect

to the apparent will of the people, would ultimately create greater

prejudice to the very democratic institutions and juristic traditions thatour Constitution and laws so zealously protect and promote. xxx xxx xxx(Emphasis supplied)

In Torayno,[43] the Court had the occasion to say that:











8/10/2019 art. vi- SEC 6-9


The Constitution and the law requires residence as a qualificationfor seeking and holding elective public office, in order to give candidatesthe opportunity to be familiar with the needs, difficulties, aspirations, potentials for growth and all matters vital to the welfare of theirconstituencies; likewise, it enables the electorate to evaluate the officeseekers' qualifications and fitness for the job they aspire for.xxx xxx xxx

Recently, in Japzon v. COMELEC ,[44] the Court, citing Papandayan, Jr. v.

COMELEC ,[45] said:

In Papandayan, Jr. v. Commission on Elections, the Court provided asummation of the different principles and concepts in jurisprudence

relating to the residency qualification for elective local officials. Pertinent portions of the ratio in Papandayan are reproduced below:

Our decisions have applied certain tests and concepts inresolving the issue of whether or not a candidate has complied withthe residency requirement for elective positions. The principleof animus revertendi has been used to determine whether a candidatehas an "intention to return" to the place where he seeks to be elected.Corollary to this is a determination whether there has been an"abandonment" of his former residence which signifies an intention

to depart therefrom. In Caasi v. Court of Appeals, this Court set asidethe appealed orders of the COMELEC and the Court of Appeals andannulled the election of the respondent as Municipal Mayor ofBolinao, Pangasinan on the ground that respondent's immigration tothe United States in 1984 constituted an abandonment of his domicileand residence in the Philippines. Being a green card holder, whichwas proof that he was a permanent resident or immigrant of theUnited States, and in the absence of any waiver of his status as such before he ran for election on January 18, 1988, respondent was heldto be disqualified under §68 of the Omnibus Election Code of the

Philippines (Batas Pambansa Blg. 881).

In Co v. Electoral Tribunal of the House of

Representatives, respondent Jose Ong, Jr. was proclaimed the dulyelected representative of the 2nd District of Northern Samar. TheHouse of Representatives Electoral Tribunal (HRET) upheld hiselection against claims that he was not a natural born Filipino citizen









8/10/2019 art. vi- SEC 6-9


and a resident of Laoang, Northern Samar. In sustaining the ruling ofthe HRET, this Court, citing Faypon v. Quirino, applied the conceptof animus revertendi or "intent to return", stating that his absencefrom his residence in order to pursue studies or practice his profession as a certified public accountant in Manila or hisregistration as a voter other than in the place where he was electeddid not constitute loss of residence. The fact that respondent made periodical journeys to his home province in Laoag revealed that healways had animus revertendi.

In Abella v. Commission on Elections and Larrazabal v.

Commission on Elections, it was explained that the determination of a person's legal residence or domicile largely depends upon theintention that may be inferred from his acts, activities, and utterances.In that case, petitioner Adelina Larrazabal, who had obtained the

highest number of votes in the local elections of February 1, 1988and who had thus been proclaimed as the duly elected governor, wasdisqualified by the COMELEC for lack of residence and registrationqualifications, not being a resident nor a registered voterofKananga, Leyte. The COMELEC ruled that the attempt of petitioner Larrazabal to change her residence one year before theelection by registering at Kananga, Leyte to qualify her to run for the position of governor of the province of Leyte was proof that sheconsidered herself a resident of Ormoc City. This Court affirmed theruling of the COMELEC and held that petitioner Larrazabal hadestablished her residence in Ormoc City, not in Kananga, Leyte, from1975 up to the time that she ran for the position of ProvincialGovernor of Leyte on February 1, 1988. There was no evidence toshow that she and her husband maintained separate residences, i.e.,she at Kananga, Leyte and her husband at Ormoc City. The fact thatshe occasionally visited Kananga, Leyte through the years did notsignify an intention to continue her residence after leaving that place.

In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that"domicile" and "residence" are synonymous. The term "residence", asused in the election law, imports not only an intention to reside in afixed place but also personal presence in that place, coupled withconduct 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. In that case, petitionerPhilip G. Romualdez established his residence during the early 1980'sin Barangay Malbog, Tolosa, Leyte. It was held that the sudden

8/10/2019 art. vi- SEC 6-9


departure from the country of petitioner, because of the EDSAPeople's Power Revolution of 1986, to go into self-exile in the UnitedStates until favorable conditions had been established, was notvoluntary so as to constitute an abandonment of residence. The Courtexplained that in order to acquire a new domicile by choice, theremust concur (1) residence or bodily presence in the new locality, (2)an intention to remain there, and (3) an intention to abandon the olddomicile. There must be animus manendi coupled with animus non

revertendi. The purpose to remain in or at the domicile of choicemust be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the newdomicile must be actual.

Ultimately, the Court recapitulates in Papandayan, Jr. that it is thefact of residence that is the decisive factor in determining whether or not

an individual has satisfied the residency qualification requirement.

We do not doubt that the residency requirement is a means to prevent a

stranger or newcomer from holding office on the assumption that such stranger or

newcomer would be insufficiently acquainted with the needs of his prospective

constituents. However, it is appropriate to point out at this juncture that aside from

petitioner’s actual, physical presence in Sta. Rosa for more than a year prior to

election day, he has demonstrated that he has substantial ties to Sta. Rosa and the

First District of Laguna for an even longer period than that. Petitioner has business

interests in Sta. Rosa comprised of restaurants and a residential property for

lease. Petitioner has two children studying in Sta. Rosa schools even before

2006. These circumstances provided petitioner with material reasons to frequently

visit the area and eventually take up residence in the said district. Significantly,

petitioner previously served as Board Member and Vice-Governor for

the Province of Laguna, of which the First District and Sta. Rosa are a part. Itstands to reason that in his previous elected positions petitioner has acquired

knowledge of the needs and aspirations of the residents of the First District who

were among his constituents.

8/10/2019 art. vi- SEC 6-9


8/10/2019 art. vi- SEC 6-9


on 9 January 1987 and thereafter performed the duties and enjoyed the rights andprivileges pertaining thereto.

On 15 January 1990, petitioner filed with the Commission on Elections a Certificate ofCandidacy for the position of Regional Governor of the Autonomous Region in MuslimMindanao. The election was scheduled for 17 February 1990.

Upon being informed of this development by the Commission on Elections, respondentsSpeaker and Secretary of the House of Representatives excluded petitioner's name fromthe Roll of Members of the House of Representatives pursuant to Section 67, Article IX ofthe Omnibus Election Code. As reported by the Speaker in the session of 9 February 1990:

The Order of Business today carries a communication from the Commissionon Elections which states that the Honorable Mohammad Ali Dimaporo of theSecond District of Lanao del Sur filed a certificate of candidacy for theregional elections in Muslim Mindanao on February 17, 1990. The HouseSecretariat, performing an administrative act, did not include the name of the

Honorable Ali Dimaporo in the Rolls pursuant to the provision of the ElectionCode, Article IX, Section 67, which states: Any elective official whethernational or local running for any office other than the one which he is holdingin a permanent capacity except for President and Vice-President shall beconsidered ipso facto resigned from his office upon the filing of his certificateof candidacy.' The word 'ipso facto' is defined in Words and Phrases as bythe very act itself – by the mere act. And therefore, by the very act of the (sic)filing his certificate of candidacy, the Honorable Ali Dimaporo removedhimself from the Rolls of the House of Representatives; and, therefore, hisname has not been carried in today's Roll and will not be carried in the futureRolls of the House. ...

Having lost in the autonomous region elections, petitioner, in a letter dated 28 June 1990and addressed to respondent Speaker, expressed his intention "to resume performing myduties and functions as elected Member of Congress." The record does not indicate whataction was taken on this communication, but it is apparent that petitioner failed in his bid toregain his seat in Congress since this petition praying for such relief was subsequently filedon 31 January 1991.

In this petition, it is alleged that following the dropping of his name from the Roll, petitionerwas excluded from all proceedings of the House of Representatives; he was not paid theemoluments due his office; his staff was dismissed and disbanded; and his office suiteswere occupied by other persons. In effect, he was virtually barred and excluded from

performing his duties and from exercising his rights and privileges as the duly elected andqualified congressman from his district.

Petitioner admits that he filed a Certificate of Candidacy for the position of RegionalGovernor of Muslim Mindanao. He, however, maintains that he did not thereby lose his seatas congressman because Section 67, Article IX of B.P. Blg. 881 is not operative under thepresent Constitution, being contrary thereto, and therefore not applicable to the presentmembers of Congress.

8/10/2019 art. vi- SEC 6-9


In support of his contention, petitioner points out that the term of office of members of theHouse of Representatives, as well as the grounds by which the incumbency of saidmembers may be shortened, are provided for in the Constitution. Section 2, Article XVIIIthereof provides that "the Senators, Members of the House of Representatives and the localofficials first elected under this Constitution shall serve until noon of June 30, 1992;" whileSection 7, Article VI states: "The Members of the House of Representatives shall be electedfor a term of three years which shall begin, unless otherwise provided by law, at noon onthe thirtieth day of June next following their election." On the other hand, the grounds bywhich such term may be shortened may be summarized as follows:

a) Section 13, Article VI: Forfeiture of his seat by holding any other office oremployment in the government or any subdivision, agency or instrumentalitythereof, including government-owned or controlled corporations orsubsidiaries;

b) Section 16 (3): Expulsion as a disciplinary action for disorderly behavior;

c) Section 17: Disqualification as determined by resolution of the ElectoralTribunal in an election contest; and,

d) Section 7, par. 2: Voluntary renunciation of office.

He asserts that under the rule expressio unius est exclusio alterius, Section 67, Article IX ofB.P. Blg. 881 is repugnant to these constitutional provisions in that it provides for theshortening of a congressman's term of office on a ground not provided for in theConstitution. For if it were the intention of the framers to include the provisions of Section67, Article IX of B.P. Blg. 881 as among the means by which the term of a Congressmanmay be shortened, it would have been a very simple matter to incorporate it in the present

Constitution. They did not do so. On the contrary, the Constitutional Commission onlyreaffirmed the grounds previously found in the 1935 and 1973 Constitutions and deliberatelyomitted the ground provided in Section 67, Article IX of B.P. Blg. 881.

On the premise that the provision of law relied upon by respondents in excluding him fromthe Roll of Members is contrary to the present Constitution, petitioner consequentlyconcludes that respondents acted without authority. He further maintains that respondents'so-called "administrative act" of striking out his name is ineffective in terminating his term asCongressman. Neither can it be justified as an interpretation of the Constitutional provisionon voluntary renunciation of office as only the courts may interpret laws. Moreover, heclaims that he cannot be said to have forfeited his seat as it is only when a congressmanholds another office or employment that forfeiture is decreed. Filing a certificate of

candidacy is not equivalent to holding another office or employment.

In sum, petitioner's demand that his rights as a duly elected member of the House ofRepresentatives be recognized, is anchored on the negative view of the following issuesraised in this petition:

A.

8/10/2019 art. vi- SEC 6-9


IS SECTION 67, ARTICLE IX, OF B.P. BLG. 881 OPERATIVE UNDER THEPRESENT CONSTITUTION?

B.

COULD THE RESPONDENT SPEAKER AND/OR THE RESPONDENTSECRETARY, 'BY ADMINISTRATIVE ACT', EXCLUDE THE PETITIONERFROM THE ROLLS OF THE HOUSE OF REPRESENTATIVES, THEREBYPREVENTING HIM FROM EXERCISING HIS FUNCTIONS ASCONGRESSMAN, AND DEPRIVING HIM OF HIS RIGHTS ANDPRIVILEGES AS SUCH?

On the other hand, respondents through the Office of the Solicitor General contend thatSection 67, Article IX of B.P. Blg. 881 is still operative under the present Constitution, as thevoluntary act of resignation contemplated in said Section 67 falls within the term "voluntaryrenunciation" of office enunciated in par. 2, Section 7, Article VI of the Constitution. That theground provided in Section 67 is not included in the Constitution does not affect its validity

as the grounds mentioned therein are not exclusive. There are, in addition, other modes ofshortening the tenure of office of Members of Congress, among which are resignation,death and conviction of a crime which carries a penalty of disqualification to hold publicoffice.

Respondents assert that petitioner's filing of a Certificate of Candidacy is an act ofresignation which estops him from claiming otherwise as he is presumed to be aware ofexisting laws. They further maintain that their questioned "administrative act" is a mereministerial act which did not involve any encroachment on judicial powers.

Section 67, Article IX of B.P. Blg. 881 reads:

Any elective official whether national or local running for any office other thanthe one which he is holding in a permanent capacity except for President andVice-President shall be considered ipso factoresigned from his office uponthe filing of his certificate of candidacy.

The precursor of this provision is the last paragraph of Section 2 of C.A. No. 666, whichreads:

Any elective provincial, municipal, or city official running for an office, otherthan the one for which he has been lastly elected, shall be consideredresigned from his office from the moment of the filing of his certificate of

candidacy.

Section 27 of Article II of Republic Act No. 180 reiterated this rule in this wise:

Sec. 27. Candidate holding office. — Any elective provincial, municipal or cityofficial running for an office, other than the one which he is actually holding,shall be considered resigned from office from the moment of the filing of hiscertificate of candidacy .

8/10/2019 art. vi- SEC 6-9


The 1971 Election Code imposed a similar proviso on local elective officials as follows:

Sec. 24. Candidate holding elective office. — Any elective provincial, sub- provincial, city, municipal or municipal district officer running for an officeother than the one which he is holding in a permanent capacity shall beconsidered ipso facto resigned from his office from the moment of the filing ofhis certificate of candidacy .

Every elected official shall take his oath of office on the day his term of officecommences, or within ten days after his proclamation if said proclamationtakes place after such day. His failure to take his oath of office as hereinprovided shall be considered forfeiture of his right to the new office to whichhe has been elected unless his failure is for a cause or causes beyond hiscontrol.

The 1978 Election Code provided a different rule, thus:

Sec. 30. Candidates holding political offices. — Governors, mayors, membersof various sanggunians, or barangay officials, shall, upon filing of a certificateof candidacy, be considered on forced leave of absence from office.

It must be noted that only in B.P. Blg. 881 are members of the legislature included in theenumeration of elective public officials who are to be considered resigned from office fromthe moment of the filing of their certificates of candidacy for another office, except forPresident and Vice-President. The advocates of Cabinet Bill No. 2 (now Section 67, ArticleIX of B.P. Blg. 881) elucidated on the rationale of this inclusion, thus:

MR. PALMARES:

In the old Election Code, Your Honor, in the 1971 ElectionCode, the provision seems to be different — I think this is inSection 24 of Article III.

Any elective provincial, sub-provincial, city, municipal ormunicipal district officer running for an office other than the onewhich he is holding in a permanent capacity shall beconsidered ipso facto resigned from his office from the momentof the filing of his certificate of candidacy.

May I know, Your Honor, what is the reason of the Committee

in departing or changing these provisions of Section 24 of theold Election Code and just adopting it en toto? Why do we haveto change it? What could possibly be the reason behind it, orthe rationale behind it?

MR. PEREZ (L.):

8/10/2019 art. vi- SEC 6-9


I have already stated the rationale for this, Mr. Speaker, but I don't mindrepeating it. The purpose is that the people must be given the right to chooseany official who belongs to, let us say, to the Batasan if he wants to run foranother office. However, because of the practice in the past where membersof the legislature ran for local offices, but did not assume the office, becauseof that spectacle the impression is that these officials were just trifling with themandate of the people. They have already obtained a mandate to be amember of the legislature, and they want to run for mayor or for governor andyet when the people give them that mandate, they do not comply with thatlatter mandate, but still preferred (sic) to remain in the earlier mandate. So webelieve, Mr. Speaker, that the people's latest mandate must be the one thatwill be given due course. ...

Assemblyman Manuel M. Garcia, in answer to the query of Assemblyman Arturo Tolentinoon the constitutionality of Cabinet Bill No. 2, said:

MR. GARCIA (M.M.):

Thank you, Mr. Speaker.

Mr. Speaker, on the part of the Committee, we made this proposal based onconstitutional grounds. We did not propose this amendment mainly on therationale as stated by the Gentlemen from Manila that the officials running foroffice other than the ones they are holding will be considered resigned notbecause of abuse of facilities of power or the use of office facilities but

primarily because under our Constitution, we have this new chapter onaccountability of public officers. Now, this was not in the 1935 Constitution. Itstates that (sic) Article XIII, Section 1— Public office is a public trust. Public

officers and employees shall serve with the highest degree of responsibility,integrity, loyalty and efficiency and shall remain accountable to the people.

Now, what is the significance of this new provision on accountability of publicofficers? This only means that all elective public officials should honor themandate they have gotten from the people. Thus, under our Constitution, itsays that: 'Members of the Batasan shall serve for the term of 6 years, in thecase of local officials and 6 years in the case of barangay officials. Now, Mr.Speaker, we have precisely included this as part of the Omnibus ElectionCode because a Batasan Member who hold (sic) himself out with the peopleand seek (sic) their support and mandate should not be allowed to deviate orallow himself to run for any other position unless he relinquishes or abandons

his office. Because his mandate to the people is to serve for 6 years. Now, ifyou allow a Batasan or a governor or a mayor who was mandated to serve for6 years to file for an office other than the one he was elected to, then, thatclearly shows that he has not (sic) intention to service the mandate of the

people which was placed upon him and therefore he should be consideredipso facto resigned . I think more than anything that is the accountability thatthe Constitution requires of elective public officials. It is not because of theuse or abuse of powers or facilities of his office, but it is because of the

8/10/2019 art. vi- SEC 6-9


Constitution itself which I said under the 1973 Constitution called and insertedthis new chapter on accountability.

Now, argument was said that the mere filing is not the intention to run. Now,what is it for? If a Batasan Member files the certificate of candidacy, thatmeans that he does not want to serve, otherwise, why should he file for anoffice other than the one he was elected to? The mere fact therefore of filing acertificate should be considered the overt act of abandoning or relinquishinghis mandate to the people and that he should therefore resign if he wants toseek another position which he feels he could be of better service.

As I said, Mr. Speaker, I disagree with the statements of the Gentleman fromManila because the basis of this Section 62 is the constitutional provision notonly of the fact that Members of the Batasan and local officials should servethe entire 6-year term for which we were elected, but because of this newchapter on the accountability of public officers not only to the communitywhich voted him to office, but primarily because under this commentary on

accountability of public officers, the elective public officers must serve their principal, the people, not their own personal ambition. And that is the reason,Mr. Speaker, why we opted to propose Section 62 where candidates orelective public officers holding offices other than the one to which they wereelected, should be considered ipso facto resigned from their office upon thefiling of the certificate of candidacy."

It cannot be gainsaid that the same constitutional basis for Section 67, Article IX of B.P. Blg.881 remains written in the 1987 Constitution. In fact, Section 1 of Article XI on"Accountability of Public Officers" is more emphatic in stating:

Sec. 1. Public office is a public trust. Public officers and employees must at alltimes be accountable to the people, serve them with utmost responsibility,integrity, loyalty, and efficiency, act with patriotism and justice, and leadmodest lives.

Obviously then, petitioner's assumption that the questioned statutory provision is no longeroperative does not hold water. He failed to discern that rather than cut short the term ofoffice of elective public officials, this statutory provision seeks to ensure that such officialsserve out their entire term of office by discouraging them from running for another publicoffice and thereby cutting short their tenure by making it clear that should they fail in theircandidacy, they cannot go back to their former position. This is consonant with theconstitutional edict that all public officials must serve the people with utmost loyalty and not

trifle with the mandate which they have received from their constituents.

In theorizing that the provision under consideration cuts short the term of office of a Memberof Congress, petitioner seems to confuse "term" with "tenure" of office. As succinctlydistinguished by the Solicitor General:

The term of office prescribed by the Constitution may not be extended orshortened by the legislature (22 R.C.L.), but the period during which an officer

8/10/2019 art. vi- SEC 6-9


actually holds the office (tenure) may be affected by circumstances within orbeyond the power of said officer. Tenure may be shorter than the term or itmay not exist at all. These situations will not change the duration of the termof office (see Topacio Nueno vs. Angeles, 76 Phil 12).

Under the questioned provision, when an elective official covered thereby files a certificateof candidacy for another office, he is deemed to have voluntarily cut short his tenure, not histerm. The term remains and his successor, if any, is allowed to serve its unexpired portion.

That the ground cited in Section 67, Article IX of B.P. Blg. 881 is not mentioned in theConstitution itself as a mode of shortening the tenure of office of members of Congress,does not preclude its application to present members of Congress. Section 2 of Article XIprovides that "(t)he President, the Vice-President, the Members of the Supreme Court, theMembers of the Constitutional Commissions, and the Ombudsman may be removed fromoffice, on impeachment for, and conviction of, culpable violation of the Constitution, treason,bribery, graft and corruption, other high crimes, or betrayal of public trust. All other publicofficers and employees may be removed from office as provided by law, but not by

impeachment . Such constitutional expression clearly recognizes that the four (4) groundsfound in Article VI of the Constitution by which the tenure of a Congressman may beshortened are not exclusive. As held in the case of State ex rel. Berge vs. Lansing , theexpression in the constitution of the circumstances which shall bring about a vacancy doesnot necessarily exclude all others. Neither does it preclude the legislature from prescribingother grounds. Events so enumerated in the constitution or statutes are merely conditionsthe occurrence of any one of which the office shall become vacant not as a penalty butsimply as the legal effect of any one of the events. And would it not be preposterous to saythat a congressman cannot die and cut his tenure because death is not one of the groundsprovided for in the Constitution? The framers of our fundamental law never intended suchabsurdity.

The basic principle which underlies the entire field of legal concepts pertaining to the validityof legislation is that by enactment of legislation, a constitutional measure is presumed to becreated. This Court has enunciated the presumption in favor of constitutionality of legislativeenactment. To justify the nullification of a law, there must be a clear and unequivocal breachof the Constitution, not a doubtful and argumentative implication. A doubt, even if well-founded, does not suffice.

The maxim expressio unius est exclusio alterius is not to be applied with the same rigor inconstruing a constitution as a statute and only those things expressed in such positiveaffirmative terms as plainly imply the negative of what is not mentioned will be consideredas inhibiting the power of legislature. The maxim is only a rule of interpretation and not a

constitutional command. This maxim expresses a rule of construction and serves only as anaid in discovering legislative intent where such intent is not otherwise manifest.

Even then, the concept of voluntary renunciation of office under Section 7, Article VI of theConstitution is broad enough to include the situation envisioned in Section 67, Article IX ofB.P. Blg. 881. As discussed by the Constitutional Commissioners:

MR. MAAMBONG:

8/10/2019 art. vi- SEC 6-9


Could I address the clarificatory question to the Committee? The term'voluntary renunciation' does not only appear in Section 3; it appears inSection 6.

MR. DAVIDE:

Yes.

MR. MAAMBONG:

It is also a recurring phrase all over the constitution. Could the Committeeplease enlighten us exactly what 'voluntary renunciation' means? Is this akinto 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 generalthan abandonment and resignation?

MR. DAVIDE:

It is more general, more embracing.

That the act, contemplated in Section 67, Article IX of B.P. Blg. 881, of filing a certificate ofcandidacy for another office constitutes an overt, concrete act of voluntary renunciation ofthe elective office presently being held is evident from this exchange between thenMembers of Parliament Arturo Tolentino and Jose Rono:

MR. RONO:

My reasonable ground is this: if you will make the person ... my, shall we say,basis is that in one case the person is intending to run for an office which isdifferent from his own, and therefore it should be considered, at least from thelegal significance, an intention to relinquish his office.

MR. TOLENTINO:

Yes ...

MR. RONO:

And in the other, because he is running for the same position, it is otherwise.

8/10/2019 art. vi- SEC 6-9


MR. TOLENTINO:

Yes, but what I cannot see is why are you going to compel a person to quit anoffice which he is only intending to leave? A relinquishment of office must beclear, must be definite.

MR. RONO:

Yes, sir. That's precisely, Mr. Speaker, what I'm saying that while I do notdisagree with the conclusion that the intention cannot be enough, but I amsaying that the filing of the certificate of candidacy is an over act of suchintention. It's not just an intention; it's already there.

In Monroy vs. Court of Appeals, a case involving Section 27 of R.A. No. 180 above-quoted,this Court categorically pronounced that "forfeiture (is) automatic and permanently effectiveupon the filing of the certificate of candidacy for another office. Only the moment and act offiling are considered. Once the certificate is filed, the seat is forever forfeited and nothing

save a new election or appointment can restore the ousted official. Thus, as We hadoccasion to remark, through Justice J.B.L. Reyes, in Castro vs. Gatuslao:

... The wording of the law plainly indicates that only the date of filing of thecertificate of candidacy should be taken into account. The law does not makethe forfeiture dependent upon future contingencies, unforeseen andunforeseeable, since the vacating is expressly made as of the moment of thefiling of the certificate of candidacy. ...

As the mere act of filing the certificate of candidacy for another office producesautomatically the permanent forfeiture of the elective position being presently held, it is not

necessary, as petitioner opines, that the other position be actually held. The ground forforfeiture in Section 13, Article VI of the 1987 Constitution is different from the forfeituredecreed in Section 67, Article IX of B.P. Blg. 881, which is actually a mode of voluntaryrenunciation of office under Section 7, par. 2 of Article VI of the Constitution.

The legal effects of filing a certificate of candidacy for another office having been spelled outin Section 67, Article IX, B.P. Blg. 881 itself, no statutory interpretation was indulged in byrespondents Speaker and Secretary of the House of Representatives in excludingpetitioner's name from the Roll of Members. The Speaker is the administrative head of theHouse of Representatives and he exercises administrative powers and functions attachedto his office. As administrative officers, both the Speaker and House Secretary-Generalperform ministerial functions. It was their duty to remove petitioner's name from the Roll

considering the unequivocal tenor of Section 67, Article IX, B.P. Blg. 881. When theCommission on Elections communicated to the House of Representatives that petitionerhad filed his certificate of candidacy for regional governor of Muslim Mindanao, respondentshad no choice but to abide by the clear and unmistakable legal effect of Section 67, ArticleIX of B.P. Blg. 881. It was their ministerial duty to do so. These officers cannot refuse toperform their duty on the ground of an alleged invalidity of the statute imposing the duty.The reason for this is obvious. It might seriously hinder the transaction of public business ifthese officers were to be permitted in all cases to question the constitutionality of statutes

8/10/2019 art. vi- SEC 6-9


8/10/2019 art. vi- SEC 6-9


to fill the vacancy through a special election to be held simultaneously with theregular elections on 14 May 2001. Twelve Senators, with a 6-year term each,were due to be elected in that election.[1] Resolution No. 84 further providedthat the ―Senatorial candidate garnering the 13

th highest number of votes shall

serve only for the unexpired term of former Senator Teofisto T. Guingona, Jr.,‖

which ends on 30 June 2004.[2]

On 5 June 2001, after COMELEC had canvassed the election results fromall the provinces but one (Lanao del Norte), COMELEC issued Resolution No.01-005 provisionally proclaiming 13 candidates as the elected Senators.Resolution No. 01-005 also provided that ―the first twelve (12) Senators shallserve for a term of six (6) years and the thirteenth (13

th) Senator shall serve

the unexpired term of three (3) years of Senator Teofisto T. Guingona, Jr.who was appointed Vice-President.‖[3] Respondents Ralph Recto (―Recto‖) andGregorio Honasan (―Honasan‖) ranked 12

thand 13

th, respectively, in

Resolution No. 01-005.

On 20 June 2001, petitioners Arturo Tolentino and Arturo Mojica(―petitioners‖), as voters and taxpayers, filed the instant petition for prohibition,impleading only COMELEC as respondent. Petitioners sought to enjoinCOMELEC from proclaiming with finality the candidate for Senator receivingthe 13

th highest number of votes as the winner in the special election for a

single three-year term seat. Accordingly, petitioners prayed for the nullificationof Resolution No. 01-005 in so far as it makes a proclamation to such effect.

Petitioners contend that COMELEC issued Resolution No. 01-005 without

jurisdiction because: (1) it failed to notify the electorate of the position to befilled in the special election as required under Section 2 of Republic Act No.6645 (―R.A. No. 6645‖);[4] (2) it failed to require senatorial candidates toindicate in their certificates of candidacy whether they seek election under thespecial or regular elections as allegedly required under Section 73 of BatasPambansa Blg. 881;[5] and, consequently, (3) it failed to specifyin the Voters Information Sheet the candidates seeking election under thespecial or regular senatorial elections as purportedly required under Section 4,paragraph 4 of Republic Act No. 6646 (―R.A. No. 6646‖).[6] Petitioners add thatbecause of these omissions, COMELEC canvassed all the votes cast for the

senatorial candidates in the 14 May 2001 elections without distinction suchthat ―there were no two separate Senate elections held simultaneously but justa single election for thirteen seats, irrespective of term.‖[7]

Stated otherwise, petitioners claim that if held simultaneously, a specialand a regular election must be distinguished in the documentation as well asin the canvassing of their results. To support their claim, petitioners cite the

http://sc.judiciary.gov.ph/jurisprudence/2004/jan2004/148334.htm#_ftn1




























8/10/2019 art. vi- SEC 6-9


special elections simultaneously held with the regular elections of 13November 1951 and 8 November 1955 to fill the seats vacated by SenatorsFernando Lopez and Carlos P. Garcia, respectively, who became Vice-Presidents during their tenures in the Senate.[8] Petitioners point out that inthose elections, COMELEC separately canvassed the votes cast for the

senatorial candidates running under the regular elections from the votes castfor the candidates running under the special elections. COMELEC alsoseparately proclaimed the winners in each of those elections.[9]

Petitioners sought the issuance of a temporary restraining order during thependency of their petition.

Without issuing any restraining order, we required COMELEC to Commenton the petition.

On 20 July 2001, after COMELEC had canvassed the results from all the

provinces, it issued Resolution No. 01-006 declaring ―official and final‖ theranking of the 13 Senators proclaimed in Resolution No. 01-005. The 13Senators took their oaths of office on 23 July 2001.

In view of the issuance of Resolution No. 01-006, the Court requiredpetitioners to file an amended petition impleading Recto and Honasan asadditional respondents. Petitioners accordingly filed an amended petition inwhich they reiterated the contentions raised in their original petition and, inaddition, sought the nullification of Resolution No. 01-006.

In their Comments, COMELEC, Honasan, and Recto all claim that a

special election to fill the seat vacated by Senator Guingona was validly heldon 14 May 2001. COMELEC and Honasan further raise preliminary issues onthe mootness of the petition and on petitioners‘ standing to litigate. Honasanalso claims that the petition, which seeks the nullity of his proclamation asSenator, is actually a quo warranto petition and the Court should dismiss thesame for lack of jurisdiction. For his part, Recto, as the 12

th ranking Senator,

contends he is not a proper party to this case because the petition onlyinvolves the validity of the proclamation of the 13

th placer in the 14 May 2001

senatorial elections.

The Issues

The following are the issues presented for resolution:

(1) Procedurally –









8/10/2019 art. vi- SEC 6-9


(a) whether the petition is in fact a petition for quo warranto over which the SenateElectoral Tribunal is the sole judge;

(b) whether the petition is moot; and

(c) whether petitioners have standing to litigate.

(2) On the merits, whether a special election to fill a vacant three-yearterm Senate seat was validly held on 14 May 2001.

The Ruling of the Court

The petition has no merit.

On the Prel iminary Matters

The Nature of the Petition and the Court’s Jurisdiction

A quo warranto proceeding is, among others, one to determine the right ofa public officer in the exercise of his office and to oust him from its enjoymentif his claim is not well-founded.[10]Under Section 17, Article VI of the

Constitution, the Senate Electoral Tribunal is the sole judge of all contestsrelating to the qualifications of the members of the Senate.

A perusal of the allegations contained in the instant petition shows,however, that what petitioners are questioning is the validity of the specialelection on 14 May 2001 in which Honasan was elected. Petitioners‘ variousprayers are, namely: (1) a ―declaration‖ that no special election was heldsimultaneously with the general elections on 14 May 2001; (2) to enjoinCOMELEC from declaring anyone as having won in the special election; and(3) to annul Resolution Nos. 01-005 and 01-006 in so far as these Resolutionsproclaim Honasan as the winner in the special election. Petitioners anchor

their prayers on COMELEC‘s alleged failure to comply with certainrequirements pertaining to the conduct of that special election. Clearly then,the petition does not seek to determine Honasan‘s right in the exercise of hisoffice as Senator. Petitioners‘ prayer for the annulment of Honasan‘sproclamation and, ultimately, election is merely incidental to petitioners‘ causeof action. Consequently, the Court can properly exercise jurisdiction over theinstant petition.




8/10/2019 art. vi- SEC 6-9


On the Mootn ess of the Peti t ion

COMELEC contends that its proclamation on 5 June 2001 of the13 Senators and its subsequent confirmation on 20 July 2001 of the ranking

of the 13 Senators render the instant petition to set aside Resolutions Nos.01-005 and 01-006 moot and academic.

Admittedly, the office of the writ of prohibition is to command a tribunal orboard to desist from committing an act threatened to be done without

jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.[11] Consequently, the writ will not lie to enjoin acts alreadydone.[12] However, as an exception to the rule on mootness, courts will decide aquestion otherwise moot if it is capable of repetition yet evadingreview.[13] Thus, in Alunan III v. Mirasol ,[14] we took cognizance of a petition toset aside an order canceling the general elections for the Sangguniang

Kabataan (―SK‖) on 4 December 1992 despite that at the time the petition wasfiled, the SK election had already taken place. We noted in Alunan that sincethe question of the validity of the order sought to be annulled ―is likely to arisein every SK elections and yet the question may not be decided before the dateof such elections,‖ the mootness of the petition is no bar to its resolution. Thisobservation squarely applies to the instant case. The question of the validity ofa special election to fill a vacancy in the Senate in relation to COMELEC‘sfailure to comply with requirements on the conduct of such special election islikely to arise in every such election. Such question, however, may not bedecided before the date of the election.

On Petitioners’ Standing

Honasan questions petitioners‘ standing to bring the instant petition astaxpayers and voters because petitioners do not claim that COMELEC illegallydisbursed public funds. Neither do petitioners claim that they sustainedpersonal injury because of the issuance of Resolution Nos. 01-005 and 01-006.

―Legal standing‖ or locus standi refers to a personal and substantialinterest in a case such that the party has sustained or will sustain direct injurybecause of the challenged governmental act.[15] The requirement of standing,which necessarily ―sharpens the presentation of issues,‖ [16] relates to theconstitutional mandate that this Court settle only actual cases orcontroversies.[17] Thus, generally, a party will be allowed to litigate only when(1) he can show that he has personally suffered some actual or threatened




























8/10/2019 art. vi- SEC 6-9


injury because of the allegedly illegal conduct of the government; (2) the injuryis fairly traceable to the challenged action; and (3) the injury is likely to beredressed by a favorable action.[18]

Applied strictly, the doctrine of standing to litigate will indeed bar the

instant petition. In questioning, in their capacity as voters, the validity of thespecial election on 14 May 2001, petitioners assert a harm classified as a―generalized grievance.‖ This generalized grievance is shared in substantially equal measure by a large class of voters, if not all the voters, who voted inthat election.[19] Neither have petitioners alleged, in their capacity as taxpayers,that the Court should give due course to the petition because in the specialelection held on 14 May 2001 ―tax money [was] ‗x x x extracted and spent inviolation of specific constitutional protections against abuses of legislativepower‘ or that there [was] misapplication of such funds by COMELEC or thatpublic money [was] deflected to any improper purpose.‖[20]

On the other hand, we have relaxed the requirement on standing andexercised our discretion to give due course to voters‘ suits involving the rightof suffrage.[21] Also, in the recent case of Integrated Bar of th e Phil ippines v .Zamora ,[22] we gave the same liberal treatment to a petition filed by theIntegrated Bar of the Philippines (―IBP‖). The IBP questioned the validity of aPresidential directive deploying elements of the Philippine National Police andthe Philippine Marines in Metro Manila to conduct patrols even though the IBPpresented ―too general an interest.‖ We held:

[T]he IBP primarily anchors its standing on its alleged responsibility to uphold therule of law and the Constitution. Apart from this declaration, however, the IBP assertsno other basis in support of its locus standi. The mere invocation by the IBP of itsduty to preserve the rule of law and nothing more, while undoubtedly true, is notsufficient to clothe it with standing in this case. This is too general an interest whichis shared by other groups and the whole citizenry x x x.

Having stated the foregoing, this Court has the discretion to take cognizance of a suitwhich does not satisfy the requirement of legal standing when paramount interest isinvolved. In not a few cases, the court has adopted a liberal attitude on the locus

standi of a petitioner where the petitioner is able to craft an issue of transcendentalsignificance to the people. Thus, when the issues raised are of paramount importanceto the public, the Court may brush aside technicalities of procedure. In this case, areading of the petition shows that the IBP has advanced constitutional issues whichdeserve the attention of this Court in view of their seriousness, novelty and weight as precedents. Moreover, because peace and order are under constant threat and lawlessviolence occurs in increasing tempo, undoubtedly aggravated bythe Mindanao insurgency problem, the legal controversy raised in the petition almost













http://sc.judiciary.gov.ph/jurisprudence/2000/aug2000/141284.htm













8/10/2019 art. vi- SEC 6-9


certainly will not go away. It will stare us in the face again. It, therefore, behoovesthe Court to relax the rules on standing and to resolve the issue now, rather thanlater .[23] (Emphasis supplied)

We accord the same treatment to petitioners in the instant case in their

capacity as voters since they raise important issues involving their right ofsuffrage, considering that the issue raised in this petition is likely to ariseagain.

Wheth er a Special Elect ion f or a Single, Three-Year Term Senatorial Seat was Validly Held on 14 May 2001

Under Section 9, Article VI of the Constitution, a special election may be

called to fill any vacancy in the Senate and the House of Representatives ―inthe manner prescribed by law,‖ thus:

In case of vacancy in the Senate or in the House of Representatives, a special electionmay be called to fill such vacancy in the manner prescribed by law, but the Senator orMember of the House of Representatives thus elected shall serve only for theunexpired term. (Emphasis supplied)

To implement this provision of the Constitution, Congress passed R.A. No.6645, which provides in pertinent parts:

SECTION 1. In case a vacancy arises in the Senate at least eighteen (18) months or inthe House of Representatives at least one (1) year before the next regular election forMembers of Congress, the Commission on Elections, upon receipt of a resolution ofthe Senate or the House of Representatives, as the case may be, certifying to theexistence of such vacancy and calling for a special election, shall hold a specialelection to fill such vacancy. If Congress is in recess, an official communication onthe existence of the vacancy and call for a special election by the President of theSenate or by the Speaker of the House of Representatives, as the case may be, shall besufficient for such purpose. The Senator or Member of the House of Representatives

thus elected shall serve only for the unexpired term.SECTION 2. The Commission on Elections shall fix the date of the special election,which shall not be earlier than forty-five (45) days nor later than ninety (90) daysfrom the date of such resolution or communication,stating among other things theoffice or offices to be voted for: Provided , however , That if within the said period a





8/10/2019 art. vi- SEC 6-9


general election is scheduled to be held, the special election shall be heldsimultaneously with such general election. (Emphasis supplied)

Section 4 of Republic Act No. 7166 subsequently amended Section 2 ofR.A. No. 6645, as follows:

Postponement, Failure of Election and Special Elections. – x x x In case a permanentvacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, the Commission shall call and hold a specialelection to fill the vacancy not earlier than sixty (60) days nor longer than ninety (90)days after the occurrence of the vacancy. However, in case of such vacancy in theSenate, the special election shall be held simultaneously with the next succeedingregular election. (Emphasis supplied)

Thus, in case a vacancy arises in Congress at least one year before the

expiration of the term, Section 2 of R.A. No. 6645, as amended, requiresCOMELEC: (1) to call a special election by fixing the date of the specialelection, which shall not be earlier than sixty (60) days nor later than ninety(90) after the occurrence of the vacancy but in case of a vacancy in theSenate, the special election shall be held simultaneously with the nextsucceeding regular election; and (2) to give notice to the voters of, amongother things, the office or offices to be voted for.

Did COMELEC, in conducting the special senatorial electionsimultaneously with the 14 May 2001 regular elections, comply with the

requirements in Section 2 of R.A. No. 6645? A survey of COMELEC‘s resolutions relating to the conduct of the 14 May

2001 elections reveals that they contain nothing which would amount to acompliance, either strict or substantial, with the requirements in Section 2 ofR.A. No. 6645, as amended. Thus, nowhere in its resolutions [24] or even in itspress releases[25] did COMELEC state that it would hold a special election for asingle three-year term Senate seat simultaneously with the regular electionson 14 May 2001. Nor did COMELEC give formal notice that it would proclaimas winner the senatorial candidate receiving the 13

th highest number of votes

in the special election.

The controversy thus turns on whether COMELEC‘s failure, assuming itdid fail, to comply with the requirements in Section 2 of R.A. No. 6645, asamended, invalidated the conduct of the special senatorial election on 14 May2001 and accordingly rendered Honasan‘s proclamation as the winner in thatspecial election void. More precisely, the question is whether the specialelection is invalid for lack of a ―call‖ for such election and for lack of notice as







8/10/2019 art. vi- SEC 6-9


to the office to be filled and the manner by which the winner in the specialelection is to be determined. For reasons stated below, the Court answers inthe negative.

COMELEC’s Failure to Give Notice of th e Time of the Special Elect ion Did Not Negate the Calling o f suc h Elect ion

The calling of an election, that is, the giving notice of the time and place ofits occurrence, whether made by the legislature directly or by the body withthe duty to give such call, is indispensable to the election‘s validity.[26] In ageneral election, where the law fixes the date of the election, the election isvalid without any call by the body charged to administer the election.[27]

In a special election to fill a vacancy, the rule is that a statute thatexpressly provides that an election to fill a vacancy shall be held at the nextgeneral elections fixes the date at which the special election is to be held andoperates as the call for that election. Consequently, an election held at thetime thus prescribed is not invalidated by the fact that the body charged bylaw with the duty of calling the election failed to do so.[28] This is because theright and duty to hold the election emanate from the statute and not from anycall for the election by some authority [29] and the law thus charges voters withknowledge of the time and place of the election.[30]

Conversely, where the law does not fix the time and place for holding aspecial election but empowers some authority to fix the time and place afterthe happening of a condition precedent, the statutory provision on the givingof notice is considered mandatory, and failure to do so will render the electiona nullity.[31]

In the instant case, Section 2 of R.A. No. 6645 itself provides that in caseof vacancy in the Senate, the special election to fill such vacancy shall be heldsimultaneously with the next succeeding regular election. Accordingly, thespecial election to fill the vacancy in the Senate arising from SenatorGuingona‘s appointment as Vice-President in February 2001 could not beheld at any other time but must be held simultaneously with the nextsucceeding regular elections on 14 May 2001. The law charges the voterswith knowledge of this statutory notice and COMELEC‘s failure to give theadditional notice did not negate the calling of such special election, much lessinvalidate it.
























8/10/2019 art. vi- SEC 6-9


Our conclusion might be different had the present case involved a specialelection to fill a vacancy in the House of Representatives. In such a case, theholding of the special election is subject to a condition precedent, that is, thevacancy should take place at least one year before the expiration of theterm. The time of the election is left to the discretion of COMELEC subject

only to the limitation that it holds the special election within the range of timeprovided in Section 2 of R.A. No. 6645, as amended. This makes mandatorythe requirement in Section 2 of R.A. No. 6645, as amended, for COMELEC to―call x x x a special election x x x not earlier than 60 days nor longer than 90days after the occurrence of the vacancy‖ and give notice of the office to befilled. The COMELEC‘s failure to so call and give notice will nullify anyattempt to hold a special election to fill the vacancy. Indeed, it will be well-nigh impossible for the voters in the congressional district involved to knowthe time and place of the special election and the office to be filled unless theCOMELEC so notifies them.

No Proof that COMELEC’s Failure to Give Notice of the Off ice to be Filled and the Manner of Determining the Winner in the Special Elect ion Misled Voters

The test in determining the validity of a special election in relation to the

failure to give notice of the special election is whether the want of notice hasresulted in misleading a sufficient number of voters as would change theresult of the special election. If the lack of official notice misled a substantialnumber of voters who wrongly believed that there was no special election tofill a vacancy, a choice by a small percentage of voters would be void.[32]

The required notice to the voters in the 14 May 2001 special senatorialelection covers two matters. First, that COMELEC will hold a special electionto fill a vacant single three-year term Senate seat simultaneously with theregular elections scheduled on the same date. Second, that COMELEC willproclaim as winner the senatorial candidate receiving the 13

th highest number

of votes in the special election. Petitioners have neither claimed nor provedthat COMELEC‘s failure to give this required notice misled a sufficient numberof voters as would change the result of the special senatorial election or ledthem to believe that there was no such special election.

Instead, what petitioners did is conclude that since COMELEC failed togive such notice, no special election took place. This bare assertion carries no





8/10/2019 art. vi- SEC 6-9


value. Section 2 of R.A. No. 6645, as amended, charged those who voted inthe elections of 14 May 2001 with the knowledge that the vacancy in theSenate arising from Senator Guingona‘s appointment as Vice-President inFebruary 2001 was to be filled in the next succeeding regular election of 14May 2001. Similarly, the absence of formal notice from COMELEC does not

preclude the possibility that the voters had actual notice of the specialelection, the office to be voted in that election, and the manner by whichCOMELEC would determine the winner. Such actual notice could come frommany sources, such as media reports of the enactment of R.A. No. 6645 andelection propaganda during the campaign.[33]

More than 10 million voters cast their votes in favor of Honasan, the partywho stands most prejudiced by the instant petition. We simply cannotdisenfranchise those who voted for Honasan, in the absence of proof thatCOMELEC‘s omission prejudiced voters in the exercise of their right of

suffrage so as to negate the holding of the special election. Indeed, this Courtis loathe to annul elections and will only do so when it is ―impossible todistinguish what votes are lawful and what are unlawful, or to arrive at anycertain result whatever, or that the great body of the voters have beenprevented by violence, intimidation, and threats from exercising theirfranchise.‖[34]

Otherwise, the consistent rule has been to respect the electorate‘s will andlet the results of the election stand, despite irregularities that may haveattended the conduct of the elections.[35] This is but to acknowledge the

purpose and role of elections in a democratic society such as ours, whichis:

to give the voters a direct participation in the affairs of their government, either indetermining who shall be their public officials or in deciding some question of publicinterest; and for that purpose all of the legal voters should be permitted, unhamperedand unmolested, to cast their ballot. When that is done and no frauds have been

committed, the ballots should be counted and the election should not be declared

null. Innocent voters should not be deprived of their participation in the affairs of

their government for mere irregularities on the part of the election officers, for which

they are in no way responsible. A different rule would make the manner and methodof performing a public duty of greater importance than the duty itself .[36] (Emphasis inthe original)

Separate Documentat ion and Canvassin g no t Required under Section 2 of R.A. No. 6645,

















8/10/2019 art. vi- SEC 6-9


Neither is there basis in petitioners‘ claim that the manner by whichCOMELEC conducted the special senatorial election on 14 May 2001 is anullity because COMELEC failed to document separately the candidates andto canvass separately the votes cast for the special election. No suchrequirements exist in our election laws. What is mandatory under Section 2

of R.A. No. 6645 is that COMELEC ―fix the date of the election,‖ if necessary,and ―state, among others, the office or offices to be voted for.‖ Similarly,petitioners‘ reliance on Section 73 of B.P. Blg. 881 on the filing of certificatesof candidacy, and on Section 4(4) of R.A. No. 6646 on the printing of electionreturns and tally sheets, to support their claim is misplaced. These provisionsgovern elections in general and in no way require separate documentation ofcandidates or separate canvass of votes in a jointly held regular and specialelections.

Significantly, the method adopted by COMELEC in conducting the special

election on 14 May 2001 merely implemented the procedure specified by theSenate in Resolution No. 84. Initially, the original draft of Resolution No. 84as introduced by Senator Francisco Tatad (―Senator Tatad‖) made no mentionof the manner by which the seat vacated by former Senator Guingona wouldbe filled. However, upon the suggestion of Senator Raul Roco (―SenatorRoco‖), the Senate agreed to amend Resolution No. 84 by providing, as it nowappears, that ―the senatorial candidate garnering the thirteenth (13

th) highest

number of votes shall serve only for the unexpired term of former SenatorTeofisto T. Guingona, Jr.‖ Senator Roco introduced the amendment to spareCOMELEC and the candidates needless expenditures and the voters further

inconvenience, thus:

S[ENATOR] T[ATAD]. Mr. President, I move that we now consider ProposedSenate Resolution No. 934 [later converted to Resolution No. 84].

T[HE] P[RESIDENT]. Is there any objection? [Silence] There being none, themotion is approved.

Consideration of Proposed Senate Resolution No. 934 is now in order. With the permission of the Body, the Secretary will read only the title and text of the

resolution.

T[HE] S[ECRETARY]. Proposed Senate Resolution No. 934 entitled

RESOLUTION CERTIFYING TO THE EXISTENCE OF A VACANCY IN THESENATE AND CALLING ON THE COMMISSION ON ELECTIONS (COMELEC)TO FILL UP SUCH VACANCY THROUGH ELECTION TO BE HELD

8/10/2019 art. vi- SEC 6-9


SIMULTANEOUSLY WITH THE REGULAR ELECTION ON MAY 14, 2001AND THE SENATOR THUS ELECTED TO SERVE ONLY FOR THEUNEXPIRED TERM

WHEREAS, the Honorable Teofisto T. Guingona, Jr. was elected Senator of

the Philippines in 1998 for a term which will expire on June 30, 2004;

WHEREAS, on February 6, 2001, Her Excellency President Gloria MacapagalArroyo nominated Senator Guingona as Vice-President of the Philippines;

WHEREAS, the nomination of Senator Guingona has been confirmed by a majorityvote of all the members of both House of Congress, voting separately;

WHEREAS, Senator Guingona will take his Oath of Office as Vice-President ofthe Philippines on February 9, 2001;

WHEREAS, Republic Act No. 7166 provides that the election for twelve (12)Senators, all elective Members of the House of Representatives, and all elective provincial city and municipal officials shall be held on the second Monday and everythree years thereafter; Now, therefore, be it

RESOLVED by the Senate, as it is hereby resolved , to certify, as it hereby certifies,the existence of a vacancy in the Senate and calling the Commission on Elections(COMELEC) to fill up such vacancy through election to be held simultaneously withthe regular election on May 14, 2001 and the Senator thus elected to serve only for the

unexpired term.

Adopted,

(Sgd.) FRANCISCO S. TATADSenator

S[ENATOR] T[ATAD]. Mr. President, I move for the adoption of this resolution.

S[ENATOR] O[SMEÑA] (J). Mr. President.

T[HE] P[RESIDENT]. Sen. John H. Osmeña is recognized.

S[ENATOR] O[SMEÑA] (J). Thank you, Mr. President. Will the distinguishedMajority Leader, Chairman of the Committee on Rules, author of this resolution, yieldfor a few questions?

S[ENATOR] T[ATAD]. With trepidation, Mr. President. [Laughter]

8/10/2019 art. vi- SEC 6-9


S[ENATOR] O[SMEÑA] (J). What a way of flattery. [Laughter]

Mr. President, I think I recall that sometime in 1951 or 1953, there was a specialelection for a vacant seat in the Senate. As a matter of fact, the one who was electedin that special election was then Congressman, later Senator Feli[s]berto Verano.

In that election, Mr. President, the candidates contested the seat. In other words, theelectorate had to cast a vote for a ninth senator – because at that time there were onlyeight – to elect a member or rather, a candidate to that particular seat.

Then I remember, Mr. President, that when we ran after the EDSA revolution, twicethere were 24 candidates and the first 12 were elected to a six-year term and the next12 were elected to a three-year term.

My question therefore is, how is this going to be done in this election? Is the

candidate with the 13th largest number of votes going to be the one to take a three-yearterm? Or is there going to be an election for a position of senator for the unexpiredterm of Sen. Teofisto Guingona?

S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving themechanics to the Commission on Elections. But personally, I would like to suggestthat probably, the candidate obtaining the 13 th largest number of votes be declared aselected to fill up the unexpired term of Senator Guingona.

S[ENATOR] O[SMEÑA] (J). Is there a law that would allow the Comelec to conduct

such an election? Is it not the case that the vacancy is for a specific office? I amreally at a loss. I am rising here because I think it is something that we shouldconsider. I do not know if we can… No, this is not a Concurrent Resolution.

S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate President.

T[HE] P[RESIDENT]. May I share this information that under Republic Act No.6645, what is needed is a resolution of this Chamber calling attention to the need forthe holding of a special election to fill up the vacancy created, in this particular case, by the appointment of our colleague, Senator Guingona, as Vice President.

It can be managed in the Commission on Elections so that a slot for the particularcandidate to fill up would be that reserved for Mr. Guingona’s unexpired term. Inother words, it can be arranged in such a manner.

x x x x

8/10/2019 art. vi- SEC 6-9


S[ENATOR] R[OCO]. Mr. President.

T[HE] P[RESIDENT]. Sen. Raul S. Roco is recognized.

S[ENATOR] R[OCO]. May we suggest, subject to a one-minute caucus, wordings to

the effect that in the simultaneous elections, the 13th placer be therefore deemed to bethe special election for this purpose. So we just nominate 13 and it is good for ourcolleagues. It is better for the candidates. It is also less expensive because the ballotwill be printed and there will be less disfranchisement.

T[HE] P[RESIDENT]. That is right.

S[ENATOR] R[OCO]. If we can just deem it therefore under this resolution to besuch a special election, maybe, we satisfy the requirement of the law.

T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance for the Comelec.

S[ENATOR] R[OCO]. Yes.

T[HE] P[RESIDENT]. – to implement.

S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility.

T[HE] P[RESIDENT]. That is right.

S[ENATOR] R[OCO]. We will already consider the 13

th

placer of the forthcomingelections that will be held simultaneously as a special election under this law as weunderstand it.

T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator Roco.

S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later, maybe it will be better, Mr. President.

T[HE] P[RESIDENT]. What does the sponsor say?

S[ENATOR] T[ATAD]. Mr. President, that is a most satisfactory proposal because Ido not believe that there will be anyone running specifically –

T[HE] P[RESIDENT]. Correct.

S[ENATOR] T[ATAD]. – to fill up this position for three years and campaigningnationwide.

8/10/2019 art. vi- SEC 6-9


T[HE] P[RESIDENT]. Actually, I think what is going to happen is the 13th candidatewill be running with specific groups.

S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13.

T[HE] P[RESIDENT]. I think we can specifically define that as the intent of thisresolution.

S[ENATOR] T[ATAD]. Subject to style, we accept that amendment and if there will be no other amendment, I move for the adoption of this resolution.

x x x x

ADOPTION OF S. RES. NO. 934

If there are no other proposed amendments, I move that we adopt this resolution.

T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is there anyobjection? [Silence] There being none, the motion is approved.[37]

Evidently, COMELEC, in the exercise of its discretion to use means andmethods to conduct the special election within the confines of R.A. No. 6645,merely chose to adopt the Senate‘s proposal, as embodied in Resolution No.84. This Court has consistently acknowledged and affirmed COMELEC‘swide latitude of discretion in adopting means to carry out its mandate of

ensuring free, orderly, and honest elections subject only to the limitation thatthe means so adopted are not illegal or do not constitute grave abuse ofdiscretion.[38] COMELEC‘s decision to abandon the means it employed in the13 November 1951 and 8 November 1955 special elections and adopt themethod embodied in Resolution No. 84 is but a legitimate exercise of itsdiscretion. Conversely, this Court will not interfere should COMELEC, insubsequent special senatorial elections, choose to revert to the means itfollowed in the 13 November 1951 and 8 November 1955 elections. ThatCOMELEC adopts means that are novel or even disagreeable is no reason toadjudge it liable for grave abuse of discretion. As we have earlier noted:

The Commission on Elections is a constitutional body. It is intended to play a distinctand important part in our scheme of government. In the discharge of its functions, itshould not be hampered with restrictions that would be fully warranted in the case of aless responsible organization. The Commission may err, so may this Court also. Itshould be allowed considerable latitude in devising means and methods that willinsure the accomplishment of the great objective for which it was created — free,









8/10/2019 art. vi- SEC 6-9


orderly and honest elections. We may not agree fully with its choice of means, butunless these are clearly illegal or constitute gross abuse of discretion, this court shouldnot interfere.[39]

A Word to COMELEC

The calling of a special election, if necessary, and the giving of notice tothe electorate of necessary information regarding a special election, arecentral to an informed exercise of the right of suffrage. While thecircumstances attendant to the present case have led us to concludethat COMELEC‘s failure to so call and give notice did not invalidate thespecial senatorial election held on 14 May 2001, COMELEC should not takechances in future elections. We remind COMELEC to comply strictly with all

the requirements under applicable laws relative to the conduct of regular





art. vi- sec 6-9

Documents