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G.R. No. 195649. April 16, 2013.* CASAN MACODE MAQUILING, petitioner, vs. COMMISSION ON

ELECTIONS, ROMMEL ARNADO y CAGOCO, LINOG G. BALUA,

respondents.

Citizenship; Renunciation of Philippine Citizenship; Commonwealth Act

No. 63; While the act of using a foreign passport is not one of the acts

enumerated in Commonwealth Act No. 63 constituting renunciation and loss

of Philippine citizenship, it is nevertheless an act which repudiates the very

oath of renunciation required for a former Filipino citizen who is also a citizen

of another country to be qualified to run for a local elective position.―While

the act of using a foreign passport is not one of the acts enumerated in

Commonwealth Act No. 63 constituting renunciation and loss of Philippine

citizenship, it is nevertheless an act which repudiates the very oath of

renunciation required for a former Filipino citizen who is also a citizen of

another country to be qualified to run for a local elective position. When

Arnado used his US passport on 14 April 2009, or just eleven days after he

renounced his American citizenship, he recanted his Oath of Renunciation

that he “absolutely and perpetually renounce(s) all allegiance and fidelity to

the UNITED STATES OF AMERICA” and that he “divest(s) [him]self of full

employment of all civil and political rights and privileges of the United States

of America.” We agree with the COMELEC En Banc that such act of using a

foreign passport does not divest Arnado of his Filipino citizenship, which he

acquired by repatriation. However, by representing himself as an American

citizen, Arnado voluntarily and effectively reverted to his earlier status as a

dual citizen. Such reversion was not retroactive; it took place the instant

Arnado represented himself as an American citizen by using his US passport.

This act of using a foreign passport after renouncing one’s foreign citizenship

is fatal to Arnado’s bid for public office, as it effectively imposed on him a

disqualification to run for an elective local position.

Same; Same; Election Law; The citizenship requirement for elective

public office is a continuing one. It must be possessed not just at the time of the

renunciation of the foreign citizenship but continuously. Any act which

violates the oath of renunciation opens the citizenship issue to attack.―The

citizenship requirement for elective public office is a continuing one. It must

be possessed not just at the time of the renunciation of the foreign citizenship

but continuously. Any act which violates the oath of renunciation opens the

citizenship issue to attack. We agree with the pronouncement of the

COMELEC First Division that “Arnado’s act of consistently using his US

passport effectively negated his “Affidavit of Renunciation.” This does not

mean, that he failed to comply with the twin requirements under R.A. No.

9225, for he in fact did. It wasafter complying with the requirements that he

performed positive acts which effectively disqualified him from running for

an elective public office pursuant to Section 40(d) of the Local Government

Code of 1991.

Same; Same; Same; While those who acquire dual citizenship by choice

are afforded the right of suffrage, those who seek election or appointment to

public office are required to renounce their foreign citizenship to be deserving

of the public trust. Holding public office demands full and undivided

allegiance to the Republic and to no other.―Citizenship is not a matter of

convenience. It is a badge of identity that comes with attendant civil and

political rights accorded by the state to its citizens. It likewise demands the

concomitant duty to maintain allegiance to one’s flag and country. While

those who acquire dual citizenship by choice are afforded the right of

suffrage, those who seek election or appointment to public office are required

to renounce their foreign citizenship to be deserving of the public trust.

Holding public office demands full and undivided allegiance to the Republic

and to no other. We therefore hold that Arnado, by using his US passport

after renouncing his American citizenship, has recanted the same Oath of

Renunciation he took. Section 40(d) of the Local Government Code applies to

his situation. He is disqualified not only from holding the public office but

even from becoming a candidate in the May 2010 elections.

Election Law; When a person who is not qualified is voted for and

eventually garners the highest number of votes, even the will of the electorate

expressed through the ballot cannot cure the defect in the qualifications of the

candidate. To rule otherwise is to trample upon and rent asunder the very law

that sets forth the qualifications and disqualifications of candidates.―The

ballot cannot override the constitutional and statutory requirements for

qualifications and disqualifications of candidates. When the law requires

certain qualifications to be possessed or that certain disqualifications be not

possessed by persons desiring to serve as elective public officials, those

qualifications must be met before one even becomes a candidate. When a

person who is not qualified is voted for and eventually garners the highest

number of votes, even the will of the electorate expressed through the ballot

cannot cure the defect in the qualifications of the candidate. To rule

otherwise is to trample upon and rent asunder the very law that sets forth

the qualifications and disqualifications of candidates. We might as well write

off our election laws if the voice of the electorate is the sole determinant of

who should be proclaimed worthy to occupy elective positions in our republic.

Same; When there are participants who turn out to be ineligible, their

victory is voided and the laurel is awarded to the next in rank who does not

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possess any of the disqualifications nor lacks any of the qualifications set in

the rules to be eligible as candidates.―We have ruled in the recent cases

of Aratea v. COMELEC, 683 SCRA 105 (2012) and Jalosjos v. COMELEC,

683 SCRA 1 (2012), that a void COC cannot produce any legal effect. Thus,

the votes cast in favor of the ineligible candidate are not considered at all in

determining the winner of an election. Even when the votes for the ineligible

candidate are disregarded, the will of the electorate is still respected, and

even more so. The votes cast in favor of an ineligible candidate do not

constitute the sole and total expression of the sovereign voice. The votes cast

in favor of eligible and legitimate candidates form part of that voice and must

also be respected. As in any contest, elections are governed by rules that

determine the qualifications and disqualifications of those who are allowed to

participate as players. When there are participants who turn out to be

ineligible, their victory is voided and the laurel is awarded to the next in rank

who does not possess any of the disqualifications nor lacks any of the

qualifications set in the rules to be eligible as candidates.

Same; Knowledge by the electorate of a candidate’s disqualification is

not necessary before a qualified candidate who placed second to a disqualified

one can be proclaimed as the winner.―The electorate’s awareness of the

candidate’s disqualification is not a prerequisite for the disqualification to

attach to the candidate. The very existence of a disqualifying circumstance

makes the candidate ineligible. Knowledge by the electorate of a candidate’s

disqualification is not necessary before a qualified candidate who placed

second to a disqualified one can be proclaimed as the winner. The second-

placer in the vote count is actually the first-placer among the qualified

candidates. That the disqualified candidate has already been proclaimed and

has assumed office is of no moment. The subsequent disqualification based on

a substantive ground that existed prior to the filing of the certificate of

candidacy voids not only the COC but also the proclamation.

Same; Citizenship; Dual Citizenship; The disqualifying circumstance

affecting Arnado is his citizenship. Arnado was both a Filipino and an

American citizen when he filed his certificate of candidacy. He was a dual

citizen disqualified to run for public office based on Section 40(d) of the Local

Government Code; The affirmation of Arnado’s disqualification, although

made long after the elections, reaches back to the filing of the certificate of

candidacy. Arnado is declared to be not a candidate at all in the May 2010

elections.―The disqualifying circumstance affecting Arnado is his citizenship.

As earlier discussed, Arnado was both a Filipino and an American citizen

when he filed his certificate of candidacy. He was a dual citizen disqualified

to run for public office based on Section 40(d) of the Local Government Code.

Section 40 starts with the statement “The following persons are disqualified

from running for any elective local position.” The prohibition serves as a bar

against the individuals who fall under any of the enumeration from

participating as candidates in the election. With Arnado being barred from

even becoming a candidate, his certificate of candidacy is thus rendered void

from the beginning. It could not have produced any other legal effect except

that Arnado rendered it impossible to effect his disqualification prior to the

elections because he filed his answer to the petition when the elections were

conducted already and he was already proclaimed the winner. To hold that

such proclamation is valid is to negate the prohibitory character of the

disqualification which Arnado possessed even prior to the filing of the

certificate of candidacy. The affirmation of Arnado’s disqualification,

although made long after the elections, reaches back to the filing of the

certificate of candidacy. Arnado is declared to be not a candidate at all in the

May 2010 elections. Arnado being a non-candidate, the votes cast in his favor

should not have been counted. This leaves Maquiling as the qualified

candidate who obtained the highest number of votes. Therefore, the rule on

succession under the Local Government Code will not apply.

CARPIO, J., Concurring Opinion:

Election Law; Citizenship; View that Philippine courts have no power to

declare whether a person possesses citizenship other than that of the

Philippines.―Philippine courts have no power to declare whether a person

possesses citizenship other than that of thePhilippines. In Mercado v.

Manzano, 307 SCRA 630 (1999), Constitutional Commissioner Joaquin G.

Bernas was quoted as saying, “[D]ual citizenship is just a reality imposed on

us because we have no control of the laws on citizenship of other countries.

We recognize a child of a Filipino mother. But whether or not she is

considered a citizen of another country is something completely beyond our

control.” In the present case, we have no authority to declare that Arnado is

an American citizen. Only the courts of the USA, using American law, have

the conclusive authority to make an assertion regarding Arnado’s American

citizenship.

Same; Same; Renunciation of Citizenship; Republic Act No. 9225; View

that Arnado’s use of his American passport after his execution of an Affidavit

of Renunciation of his American Citizenship is a retraction of his

renunciation; It is as if he never renounced his American citizenship at all.

Arnado, therefore, failed to comply with the twin requirements of swearing to

an Oath of Allegiance and executing a Renunciation of Foreign Citizenship as

found in Republic Act No. 9225.―Arnado’s use of his American passport after

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his execution of an Affidavit of Renunciation of his American Citizenship is

a retraction of his renunciation. When Arnado filed his Certificate of

Candidacy on 30 November 2009, there was no longer an effective

renunciation of his American citizenship. It is as if he never renounced his

American citizenship at all. Arnado, therefore, failed to comply with the twin

requirements of swearing to an Oath of Allegiance and executing a

Renunciation of Foreign Citizenship as found in Republic Act No. 9225. We

previously discussed the distinction betweendual citizenship and dual

allegiance, as well as the different acts required of dual citizens, who may

either have involuntary dual citizenship or voluntary dual allegiance, who

desire to be elected to Philippine public office in Cordora v. COMELEC, 580

SCRA 12 (2009).

Same; Same; Same; Stray Votes; View that Arnado used his USA

passport after his Renunciation of American Citizenship and before he filed

his Certificate of Candidacy. This positive act of retraction of his renunciation

before the filing of the Certificate of Candidacy renders Arnado’s Certificate of

Candidacy void ab initio. Therefore, Arnado was never a candidate at any

time, and all the votes for him are stray votes.―Arnado used his USA

passportafter his Renunciation of American Citizenship and before he filed

his Certificate of Candidacy. This positive act of retraction of his renunciation

before the filing of the Certificate of Candidacy renders Arnado’s Certificate

of Candidacy void ab initio. Therefore, Arnado was never a candidate at any

time, and all the votes for him are stray votes. We reiterate our ruling

in Jalosjos v. COMELEC, 683 SCRA 1 (2012), on this matter: Decisions of

this Court holding that the second-placer cannot be proclaimed winner if the

first-placer is disqualified or declared ineligible should be limited to

situations where the certificate of candidacy of the first-placer was valid at

the time of filing but subsequently had to be cancelled because of a violation

of law that took place, or a legal impediment that took effect, after the filing

of the certificate of candidacy. If the certificate of candidacy is void ab initio,

then legally the person who filed such void certificate of candidacy was never

a candidate in the elections at any time. All votes for such non-candidate are

stray votes and should not be counted. Thus, such non-candidate can never be

a first-placer in the elections. If a certificate of candidacy void ab initio is

cancelled on the day, or before the day, of the election, prevailing

jurisprudence holds that all votes for that candidate are stray votes. If a

certificate of candidacy void ab initio is cancelled one day or more after the

elections, all votes for such candidate should also be stray votes because the

certificate of candidacy is void from the very beginning. This is the more

equitable and logical approach on the effect of the cancellation of a certificate

of candidacy that is void ab initio. Otherwise, a certificate of candidacy

voidab initio can operate to defeat one or more valid certificates of candidacy

for the same position.

BRION, J., Dissenting Opinion:

Citizenship; Republic Act No. 9225; View that RA 9225 was enacted to

allow the re-acquisition and retention of Philippine citizenship by: 1) natural-

born citizens who were deemed to have lost their Philippine citizenship by

reason of their naturalization as citizens of a foreign country; and 2) natural-

born citizens of the Philippines who, after the effectivity of the law, became

citizens of a foreign country.―RA 9225 was enacted to allow the re-acquisition

and retention of Philippine citizenship by: 1) natural-born citizens who were

deemed to have lost their Philippine citizenship by reason of their

naturalization as citizens of a foreign country; and 2) natural-born citizens of

the Philippines who, after the effectivity of the law, became citizens of a

foreign country. The law provides that they are deemed to have re-acquired

or retained their Philippine citizenship upon taking the oath of allegiance. x x

x Arnado falls under the first category as a natural-born Filipino citizen who

was deemed to have lost his Philippine citizenship upon his naturalization as

an American citizen.

Same; Same; Renunciation of Citizenship; View that Arnado’s use of his

US passport in travelling back to the Philippines on November 24, 2009 was

an isolated act that could not, by itself, be an express renunciation of the

Philippine citizenship he adopted as his sole citizenship under RA

9225.―Arnado’s Philippine passport was issued on June 18, 2009, but he was

not immediately notified of the issuance so that and he only received his

passport three months after or sometime in September 2009. Clearly, when

Arnado travelled on April 14, 2009, June 25, 2009 and July 29, 2009, he

had no Philippine passport that he could have used to travel to the

United States to attend to the winding up of his business and other

affairs in America. A travel document issued by the proper Philippine

government agency (e.g., a Philippine consulate office in the US) would not

suffice because travel documents could not be used; they are issued only in

critical instances, as determined by the consular officer, and allow the bearer

only a direct, one-way trip to the Philippines. Although Arnado received his

Philippine passport by the time he returned to the Philippines on November

24, 2009, he could not use this without risk of complications with the US

immigration authorities for using a travel document different from what he

used in his entry into the US on July 29, 2009. Plain practicality then

demanded that the travel document that he used to enter the US on July 29,

2009 be the same travel document he should use in leaving the country on

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November 24, 2009. Given these circumstances, Arnado’s use of his US

passport in travelling back to the Philippines on November 24, 2009 was an

isolated act that could not, by itself, be an express renunciation of the

Philippine citizenship he adopted as his sole citizenship under RA 9225.

Same; Same; Same; View that the ponencia fails to consider that under

RA 9225, natural-born citizens who were deemed to have lost their Philippine

citizenship because of their naturalization as citizens of a foreign country and

who subsequently complied with the requirements of RA 9225, are deemed not

to have lost their Philippine citizenship.―I disagree with the ponencia’s view

that by using his US passport and representing himself as an American

citizen, Arnado effectively reverted to the status of a dual

citizen. Interestingly, the ponencia failed to cite any law or controlling

jurisprudence to support its conclusion, and thus merely makes a

bare assertion. The ponencia fails to consider that under RA 9225, natural-

born citizens who were deemed to have lost their Philippine citizenship

because of their naturalization as citizens of a foreign country and who

subsequently complied with the requirements of RA 9225, are deemed not to

have lost their Philippine citizenship.RA 9225 cured and negated the

presumption made under CA 63. Hence, as in Japzon, Arnado assumed

“pure” Philippine citizenship again after taking the Oath of Allegiance and

executing an Oath of Renunciation of his American citizenship under RA

9225.

Same; Same; Same; View that the law requires express renunciation in

order to lose Philippine citizenship. The term means a renunciation that is

made distinctly and explicitly and is not left to inference or implication; it is a

renunciation manifested by direct and appropriate language, as distinguished

from that which is inferred from conduct.―I loathe to rule that Arnado’s use

of his US passport amounts to an express renunciation of his Filipino

citizenship, when its use was an isolated act that he sufficiently explained

and fully justified. I emphasize that the law requires express

renunciation in order to lose Philippine citizenship. The term means a

renunciation that is made distinctly and explicitly and is not left to

inference or implication; it is a renunciation manifested by direct and

appropriate language, as distinguished from that which is inferred

from conduct.

Same; Same; Same; View that in the absence of clear and affirmative

acts of re-acquiring US citizenship either by naturalization or by express acts

(such as the re-establishment of permanent residency in the United States),

Arnado’s use of his US passport cannot but be considered an isolated act that

did not undo his renunciation of his US citizenship.―In the present case,

other than the use of his US passport in two trips to and from the United

States, the record does not bear out any indication, supported by evidence, of

Arnado’s intention to re-acquire US citizenship. To my mind, in the absence

of clear and affirmative acts of re-acquiring US citizenship either by

naturalization or by express acts (such as the re-establishment of permanent

residency in the United States), Arnado’s use of his US passport cannot but

be considered an isolated act that did not undo his renunciation of his US

citizenship. What he might in fact have done was to violate American law on

the use of passports, but this is a matter irrelevant to the present case. Thus,

Arnado remains to be a “pure” Filipino citizen and the loss of his Philippine

citizenship cannot be presumed or inferred from his isolated act of using his

US passport for travel purposes.

Same; Same; Same; View that Arnado sufficiently justified the use of his

US passport despite his renunciation of his US citizenship; when he travelled

on April 14, 2009, June 25, 2009 and July 29, 2009, he had no Philippine

passport that he could have used to travel to the United States to attend to the

business and other affairs that he was leaving; He consistently used his

Philippine passport for travel after November 24, 2009, the true character of

his use of his US passport stands out and cannot but be an isolated and

convenient act that did not negate his Oath of Renunciation.―I disagree

however, with the conclusion that Arnado effectively negated his Oath of

Renunciation when he used his US passport for travel to the United States.

To reiterate if only for emphasis, Arnado sufficiently justified the use of his

US passport despite his renunciation of his US citizenship; when he travelled

on April 14, 2009, June 25, 2009 and July 29, 2009, he had no Philippine

passport that he could have used to travel to the United States to attend to

the business and other affairs that he was leaving. If at all, he could be

faulted for using his US passport by the time he returned to the Philippines

on November 24, 2009 because at that time, he had presumably received his

Philippine passport. However, given the circumstances explained above and

that he consistently used his Philippine passport for travel after November

24, 2009, the true character of his use of his US passport stands out and

cannot but be an isolated and convenient act that did not negate his Oath of

Renunciation.429

ABAD, J., Separate and Concurring Opinion:

Citizenship; Republic Act No. 9225; View that Section 5(2) of Republic

Act 9225 provides the means by which a former Philippine citizen who has

acquired foreign citizenship to later reacquire his old citizenship by complying

with certain requirements.―Sec. 5(2) of Republic Act 9225 provides the means

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by which a former Philippine citizen who has acquired foreign citizenship to

later reacquire his old citizenship by complying with certain requirements.

Respondent Rommel Arnado complied with these requirements for regaining

Philippine citizenship but, because he wanted to run for public office, he also

renounced his United States (U.S.) Citizenship when he filed his certificate of

candidacy, conformably with the provisions of Republic Act 9225 that reads:

(2) Those seeking elective public in the Philippines shall meet the

qualification for holding such public office as required by the Constitution

and existing laws and, at the time of the filing of the certificate of candidacy,

make a personal and sworn renunciation of any and all foreign citizenship

before any public officer authorized to administer an oath. But his compliance

with the above was challenged before the Commission on Elections (Comelec)

because Arnado afterwards twice used his U.S. passport in going to and

coming from the U.S., the country whose citizenship he had renounced.

Same; Same; Renunciation of Citizenship; View that Section 349 (a)(5) of

the Immigration and Nationality Act (INA) provides that “(a) A person who is

a national of the United States whether by birth or naturalization, shall lose

his nationality by voluntarily performing any of the following acts with the

intention of relinquishing United States nationality―x x x (5) making a formal

renunciation of nationality before a diplomatic or consular officer of the

United States in a foreign state, in such form as may be prescribed by the

Secretary of State.” He does not effectively renounce his citizenship who does

not comply with what his country requires of him.―Section 349 (a)(5) of the

Immigration and Nationality Act (INA) sets the procedure that those who

have moved their residence to other countries must observe when renouncing

their U.S. citizenship. It provides that “(a) A person who is a national of the

United States whether by birth or naturalization, shall lose his nationality by

voluntarily performing any of the following acts with the intention of

relinquishing United States nationality―x x x (5) making a formal

renunciation of nationality before a diplomatic or consular officer of the

United States in a foreign state, in such form as may be prescribed by the

Secretary of State.” He does not effectively renounce his citizenship who does

not comply with what his country requires of him.

SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.

The facts are stated in the opinion of the Court.

Rexie Efren A. Bugaring & Associates Law Offices and Musico

Law Office for petitioner.

Federico R. Miranda for respondent Linog G. Balua.

Tomas O. Cabili and Rejoice S. Subejano for respondent Mayor

Rommel Arnado.

SERENO, C.J.:

The Case

This is a Petition for Certiorari under Rule 64 in conjunction with

Rule 65 of the Rules of Court to review the Resolutions of the

Commission on Elections (COMELEC). The Resolution1 in SPA No.

10-109(DC) of the COMELEC First Division dated 5 October 2010 is

being assailed for applying Section 44 of the Local Government Code

while the Resolution2 of the COMELEC En Banc dated 2 February

2011 is being questioned for finding that respondent Rommel Arnado

y Cagoco (respondent Arnado/Arnado) is solely a Filipino citizen

qualified to run for public office despite his continued use of a U.S.

passport.

Facts

Respondent Arnado is a natural born Filipino citizen.3 However, as

a consequence of his subsequent naturalization as a citizen of the

United States of America, he lost his Filipino citizenship.

Arnado applied for repatriation under Republic Act (R.A.) No. 9225

before the Consulate General of the Philippines in San Franciso, USA

and took the Oath of Allegiance to the Republic of the Philippines on

10 July 2008.4 On the same day an Order of Approval of his

Citizenship Retention and Re-acquisition was issued in his favor.5

The aforementioned Oath of Allegiance states:

I, Rommel Cagoco Arnado, solemnly swear that I will support and defend

the Constitution of the Republic of the Philippines and obey the laws and

legal orders promulgated by the duly constituted authorities of the

Philippines and I hereby declare that I recognize and accept the supreme

authority of the Philippines and will maintain true faith and allegiance

thereto; and that I impose this obligation upon myself voluntarily without

mental reservation or purpose of evasion.6

On 3 April 2009 Arnado again took his Oath of Allegiance to the

Republic and executed an Affidavit of Renunciation of his foreign

citizenship, which states:

I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and

perpetually renounce all allegiance and fidelity to the UNITED STATES OF

AMERICA of which I am a citizen, and I divest myself of full employment of

all civil and political rights and privileges of the United States of America.

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I solemnly swear that all the foregoing statement is true and correct to

the best of my knowledge and belief.7

On 30 November 2009, Arnado filed his Certificate of Candidacy

for Mayor of Kauswagan, Lanao del Norte, which contains, among

others, the following statements:

I am a natural born Filipino citizen / naturalized Filipino citizen.

I am not a permanent resident of, or immigrant to, a foreign country.

I am eligible for the office I seek to be elected to.

I will support and defend the Constitution of the Republic of the Philippines

and will maintain true faith and allegiance thereto. I will obey the laws, legal

orders and decrees promulgated by the duly constituted authorities.

I impose this obligation upon myself voluntarily without mental reservation

or purpose of evasion.8

On 28 April 2010, respondent Linog C. Balua (Balua), another

mayoralty candidate, filed a petition to disqualify Arnado and/or to

cancel his certificate of candidacy for municipal mayor of Kauswagan,

Lanao del Norte in connection with the 10 May 2010 local and

national elections.9 Respondent Balua contended that Arnado is not a

resident of Kauswagan, Lanao del Norte and that he is a foreigner,

attaching thereto a certification issued by the Bureau of Immigration

dated 23 April 2010 indicating the nationality of Arnado as “USA-

American.”10

To further bolster his claim of Arnado’s US citizenship, Balua

presented in his Memorandum a computer-generated travel

record11 dated 03 December 2009 indicating that Arnado has been

using his US Passport No. 057782700 in enter-

_______________

8 Id., at p. 139, Annex “B” of Petition for Disqualification; Id., at p. 177, Annex “1”

Memorandum for Respondent.

9 Id., at p. 134, Petition to Disqualify Rommel Cagoco Arnado and/or to Cancel his

Certificate of Candidacy for Municipal Mayor of Kauswagan, Lanao del Norte in

Connection with May 10, 2010 Local and National Elections.

10 Id., at p. 140, Certification.

11 Id., at p. 191, Exhibit “A” of Memorandum for Petitioner filed before the

Commission on Elections.

433

VOL. 696, APRIL 16, 2013 433

Maquiling vs. Commission on

Elections

ing and departing the Philippines. The said record shows that Arnado

left the country on 14 April 2009 and returned on 25 June 2009, and

again departed on 29 July 2009, arriving back in the Philippines on

24 November 2009.

Balua likewise presented a certification from the Bureau of

Immigration dated 23 April 2010, certifying that the name “Arnado,

Rommel Cagoco” appears in the available Computer

Database/Passenger manifest/IBM listing on file as of 21 April 2010,

with the following pertinent travel records:

DATE OF Arrival : 01/12/2010

NATIONALITY : USA-AMERICAN

PASSPORT : 057782700

DATE OF Arrival : 03/23/2010

NATIONALITY : USA-AMERICAN

PASSPORT : 05778270012

On 30 April 2010, the COMELEC (First Division) issued an

Order13 requiring the respondent to personally file his answer and

memorandum within three (3) days from receipt thereof.

After Arnado failed to answer the petition, Balua moved to declare

him in default and to present evidence ex-parte.

Neither motion was acted upon, having been overtaken by the

2010 elections where Arnado garnered the highest number of votes

and was subsequently proclaimed as the winning candidate for Mayor

of Kauswagan, Lanao del Norte.

It was only after his proclamation that Arnado filed his verified

answer, submitting the following documents as evidence:14

1. Affidavit of Renunciation and Oath of Allegiance to the Republic

of the Philippines dated 03 April 2009;

2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia

Branzuela, Leoncio Daligdig, and Jessy Corpin, all neighbors of

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Arnado, attesting that Arnado is a long-time resident of

Kauswagan and that he has been conspicuously and

continuously residing in his family’s ancestral house in

Kauswagan;

3. Certification from the Punong Barangay of Poblacion,

Kauswagan, Lanao del Norte dated 03 June 2010 stating that

Arnado is a bona fideresident of his barangay and that Arnado

went to the United States in 1985 to work and returned to the

Philippines in 2009;

4. Certification dated 31 May 2010 from the Municipal Local

Government Operations Office of Kauswagan stating that Dr.

Maximo P. Arnado, Sr. served as Mayor of Kauswagan, from

January 1964 to June 1974 and from 15 February 1979 to 15

April 1986; and

5. Voter Certification issued by the Election Officer of Kauswagan

certifying that Arnado has been a registered voter of Kauswagan

since 03 April 2009.

The Ruling of the COMELEC First Division

Instead of treating the Petition as an action for the cancellation of

a certificate of candidacy based on misrepresentation,15the COMELEC

First Division considered it as one for disqualification. Balua’s

contention that Arnado is a resident of the United States was

dismissed upon the finding that “Balua failed to present any evidence

to support his contention,”16 whereas the First Division still could “not

conclude that Arnado failed to meet the one-year residency

requirement under the Local Government Code.”17

In the matter of the issue of citizenship, however, the First

Division disagreed with Arnado’s claim that he is a Filipino citizen.18

We find that although Arnado appears to have substantially complied with

the requirements of R.A. No. 9225, Arnado’s act of consistently using his US

passport after renouncing his US citizenship on 03 April 2009 effectively

negated his Affidavit of Renunciation.

x x x x

Arnado’s continued use of his US passport is a strong indication that

Arnado had no real intention to renounce his US citizenship and that he only

executed an Affidavit of Renunciation to enable him to run for office. We

cannot turn a blind eye to the glaring inconsistency between Arnado’s

unexplained use of a US passport six times and his claim that he re-acquired

his Philippine citizenship and renounced his US citizenship. As noted by the

Supreme Court in the Yu case, “[a] passport is defined as an official document

of identity and nationality issued to a person intending to travel or sojourn in

foreign countries.” Surely, one who truly divested himself of US citizenship

would not continue to avail of privileges reserved solely for US nationals.19

The dispositive portion of the Resolution rendered by the

COMELEC First Division reads:

WHEREFORE, in view of the foregoing, the petition for disqualification

and/or to cancel the certificate of candidacy of Rommel C. Arnado is

hereby GRANTED. Rommel C. Arnado’s proclamation as the winning

candidate for Municipal Mayor of Kauswagan, Lanao del Nore is

hereby ANNULLED. Let the order of succession under Section 44 of the

Local Government Code of 1991 take effect.20

The Motion for Reconsideration and

the Motion for Intervention

Arnado sought reconsideration of the resolution before the

COMELEC En Bancon the ground that “the evidence is insufficient to

justify the Resolution and that the said Resolution is contrary to

law.”21 He raised the following contentions:22

1. The finding that he is not a Filipino citizen is not supported by

the evidence consisting of his Oath of Allegiance and the

Affidavit of Renunciation, which show that he has substantially

complied with the requirements of R.A. No. 9225;

2. The use of his US passport subsequent to his renunciation of his

American citizenship is not tantamount to a repudiation of his

Filipino citizenship, as he did not perform any act to swear

allegiance to a country other than the Philippines;

3. He used his US passport only because he was not informed of

the issuance of his Philippine passport, and that he used his

Philippine passport after he obtained it;

4. Balua’s petition to cancel the certificate of candidacy of Arnado

was filed out of time, and the First Division’s treatment of the

petition as one for disqualification constitutes grave abuse of

discretion amounting to excess of jurisdiction;23

5. He is undoubtedly the people’s choice as indicated by his

winning the elections;

6. His proclamation as the winning candidate ousted the

COMELEC from jurisdiction over the case; and

8

7. The proper remedy to question his citizenship is through a

petition forquo warranto, which should have been filed within

ten days from his proclamation.

Petitioner Casan Macode Maquiling (Maquiling), another

candidate for mayor of Kauswagan, and who garnered the second

highest number of votes in the 2010 elections, intervened in the case

and filed before the COMELEC En Banc a Motion for Reconsideration

together with an Opposition to Arnado’s Amended Motion for

Reconsideration. Maquiling argued that while the First Division

correctly disqualified Arnado, the order of succession under Section 44

of the Local Government Code is not applicable in this case.

Consequently, he claimed that the cancellation of Arnado’s candidacy

and the nullification of his proclamation, Maquiling, as the legitimate

candidate who obtained the highest number of lawful votes, should be

proclaimed as the winner.

Maquiling simultaneously filed his Memorandum with his Motion

for Intervention and his Motion for Reconsideration. Arnado opposed

all motions filed by Maquiling, claiming that intervention is

prohibited after a decision has already been rendered, and that as a

second-placer, Maquiling undoubtedly lost the elections and thus does

not stand to be prejudiced or benefitted by the final adjudication of

the case.

Ruling of the COMELEC En Banc

In its Resolution of 02 February 2011, the COMELEC En

Banc held that under Section 6 of Republic Act No. 6646, the

Commission “shall continue with the trial and hearing of the action,

inquiry or protest even after the proclamation of the candidate whose

qualifications for office is questioned.”

As to Maquiling’s intervention, the COMELEC En Banc also cited

Section 6 of R.A. No. 6646 which allows intervention in proceedings

for disqualification even after elections if no final judgment has been

rendered, but went on further to say that Maquiling, as the second

placer, would not be prejudiced by the outcome of the case as it agrees

with the dispositive portion of the Resolution of the First Division

allowing the order of succession under Section 44 of the Local

Government Code to take effect.

The COMELEC En Banc agreed with the treatment by the First

Division of the petition as one for disqualification, and ruled that the

petition was filed well within the period prescribed by law,24having

been filed on 28 April 2010, which is not later than 11 May 2010, the

date of proclamation.

However, the COMELEC En Bancreversed and set aside the

ruling of the First Division and granted Arnado’s Motion for

Reconsideration, on the following premises:

First:

By renouncing his US citizenship as imposed by R.A. No. 9225, the

respondent embraced his Philippine citizenship as though he never became a

citizen of another country. It was at that time, April 3, 2009, that the

respondent became a pure Philippine Citizen again.

x x x x

The use of a US passport […] does not operate to revert back his status as

a dual citizen prior to his renunciation as there is no law saying such. More

succinctly, the use of a US passport does not operate to “unrenounce” what he

has earlier on renounced. The First Division’s reliance in the case of In Re:

Petition for Habeas Corpus of Willy Yu v. Defensor-Santiago, et al. is

misplaced. The petitioner in the said case is a naturalized citizen who, after

taking his oath as a naturalized Filipino, applied for the renewal of his

Portuguese passport. Strict policy is maintained in the conduct of citizens

who are not natural born, who acquire their citizenship by choice, thus

discarding their original citizenship. The Philippine State expects strict

conduct of allegiance to those who choose to be its citizens. In the present

case, respondent is not a naturalized citizen but a natural born citizen who

chose greener pastures by working abroad and then decided to repatriate to

supposedly help in the progress of Kauswagan. He did not apply for a US

passport after his renunciation. Thus the mentioned case is not on all fours

with the case at bar.

x x x x

The respondent presented a plausible explanation as to the use of his US

passport. Although he applied for a Philippine passport, the passport was

only issued on June 18, 2009. However, he was not notified of the issuance of

his Philippine passport so that he was actually able to get it about three (3)

months later. Yet as soon as he was in possession of his Philippine passport,

the respondent already used the same in his subsequent travels abroad. This

fact is proven by the respondent’s submission of a certified true copy of his

passport showing that he used the same for his travels on the following dates:

9

January 31, 2010, April 16, 2010, May 20, 2010, January 12, 2010, March 31,

2010 and June 4, 2010. This then shows that the use of the US passport was

because to his knowledge, his Philippine passport was not yet issued to him

for his use. As probably pressing needs might be undertaken, the respondent

used whatever is within his control during that time.25

In his Separate Concurring Opinion, COMELEC Chairman Sixto

Brillantes cited that the use of foreign passport is not one of the

grounds provided for under Section 1 of Commonwealth Act No. 63

through which Philippine citizenship may be lost.

“[T]he application of the more assimilativeprinciple of continuity of

citizenship is more appropriate in this case. Under said principle, once a

person becomes a citizen, either by birth or naturalization, it is assumed that

he desires to continue to be a citizen, and this assumption stands until he

voluntarily denationalizes or expatriates himself. Thus, in the instant case

respondent after reacquiring his Philippine citizenship should be presumed to

have remained a Filipino despite his use of his American passport in the

absence of clear, unequivocal and competent proof of expatriation.

Accordingly, all doubts should be resolved in favor of retention of

citizenship.”26

On the other hand, Commissioner Rene V. Sarmiento dissented,

thus:

[R]espondent evidently failed to prove that he truly and wholeheartedly

abandoned his allegiance to the United States. The latter’s continued use of

his US passport and enjoyment of all the privileges of a US citizen despite his

previous renunciation of the afore-mention[ed] citizenship runs contrary to

his declaration that he chose to retain only his Philippine citizenship.

Respondent’s submission with the twin requirements was obviously only for

the purpose of complying with the requirements for running for the

mayoralty post in connection with the May 10, 2010 Automated National and

Local Elections.

Qualifications for elective office, such as citizenship, are continuing

requirements; once any of them is lost during his incumbency, title to the

office itself is deemed forfeited. If a candidate is not a citizen at the time he

ran for office or if he lost his citizenship after his election to office, he is

disqualified to serve as such. Neither does the fact that respondent obtained

the plurality of votes for the mayoralty post cure the latter’s failure to comply

with the qualification requirements regarding his citizenship.

Since a disqualified candidate is no candidate at all in the eyes of the law,

his having received the highest number of votes does not validate his election.

It has been held that where a petition for disqualification was filed before

election against a candidate but was adversely resolved against him after

election, his having obtained the highest number of votes did not make his

election valid. His ouster from office does not violate the principle of vox

populi suprema est lex because the application of the constitutional and

statutory provisions on disqualification is not a matter of popularity. To apply

it is to breath[e] life to the sovereign will of the people who expressed it when

they ratified the Constitution and when they elected their representatives

who enacted the law.27

The Petition before the Court

Maquiling filed the instant petition questioning the propriety of

declaring Arnado qualified to run for public office despite his

continued use of a US passport, and praying that Maquiling be

proclaimed as the winner in the 2010 mayoralty race in Kauswagan,

Lanao del Norte.

Ascribing both grave abuse of discretion and reversible error on

the part of the COMELEC En Banc for ruling that Arnado is a

Filipino citizen despite his continued use of a US passport, Maquiling

now seeks to reverse the finding of the COMELEC En Banc that

Arnado is qualified to run for public office.

Corollary to his plea to reverse the ruling of the COMELEC En

Banc or to affirm the First Division’s disqualification of Arnado,

Maquiling also seeks the review of the applicability of Section 44 of

the Local Government Code, claiming that the COMELEC committed

reversible error in ruling that “the succession of the vice mayor in

case the respondent is disqualified is in order.”

Issues

There are three questions posed by the parties before this Court

which will be addressed seriatim as the subsequent questions hinge

on the result of the first.

The first question is whether or not intervention is allowed in a

disqualification case.

The second question is whether or not the use of a foreign passport

after renouncing foreign citizenship amounts to undoing a

renunciation earlier made.

A better framing of the question though should be whether or not

the use of a foreign passport after renouncing foreign citizenship

affects one’s qualifications to run for public office.

10

The third question is whether or not the rule on succession in the

Local Government Code is applicable to this case.

Our Ruling

Intervention of a rival candidate in a disqualification case is

proper when there has not yet been any proclamation of the

winner.

Petitioner Casan Macode Maquiling intervened at the stage when

respondent Arnado filed a Motion for Reconsideration of the First

Division Resolution before the COMELEC En Banc. As the candidate

who garnered the second highest number of votes, Maquiling contends

that he has an interest in the disqualification case filed against

Arnado, considering that in the event the latter is disqualified, the

votes cast for him should be considered stray and the second-placer

should be proclaimed as the winner in the elections.

It must be emphasized that while the original petition before the

COMELEC is one for cancellation of the certificate of candidacy

and/or disqualification, the COMELEC First Division and the

COMELEC En Banc correctly treated the petition as one for

disqualification.

The effect of a disqualification case is enunciated in Section 6 of

R.A. No. 6646:

Sec. 6. Effect of Disqualification Case.―Any candidate who has been

declared by final judgment to be disqualified shall not be voted for, and the

votes cast for him shall not be counted. If for any reason a candidate is not

declared by final judgment before an election to be disqualified and he is

voted for and receives the winning number of votes in such election, the

Court or Commission shall continue with the trial and hearing of the action,

inquiry, or protest and, upon motion of the complainant or any intervenor,

may during the pendency thereof order the suspension of the proclamation of

such candidate whenever the evidence of his guilt is strong.

Mercado v. Manzano28 clarified the right of intervention in a

disqualification case. In that case, the Court said:

That petitioner had a right to intervene at that stage of the proceedings for

the disqualification against private respondent is clear from Section 6 of R.A.

No. 6646, otherwise known as the Electoral Reforms Law of 1987, which

provides: Any candidate who has been declared by final judgment to be

disqualified shall not be voted for, and the votes cast for him shall not be

counted. If for any reason a candidate is not declared by final judgment

before an election to be disqualified and he is voted for and receives the

winning number of votes in such election, the Court or Commission shall

continue with the trial and hearing of the action, inquiry, or protest and,

upon motion of the complainant or any intervenor, may during the pendency

thereof order the suspension of the proclamation of such candi

date whenever the evidence of guilt is strong. Under this provision,

intervention may be allowed in proceedings for disqualification even after

election if there has yet been no final judgment rendered.29

Clearly then, Maquiling has the right to intervene in the case. The

fact that the COMELEC En Banc has already ruled that Maquiling

has not shown that the requisites for the exemption to the second-

placer rule set forth in Sinsuat v. COMELEC30 are present and

therefore would not be prejudiced by the outcome of the case, does not

deprive Maquiling of the right to elevate the matter before this Court.

Arnado’s claim that the main case has attained finality as the

original petitioner and respondents therein have not appealed the

decision of the COMELEC En Banc, cannot be sustained. The

elevation of the case by the intervenor prevents it from attaining

finality. It is only after this Court has ruled upon the issues raised in

this instant petition that the disqualification case originally filed by

Balua against Arnado will attain finality.

The use of foreign passport after renouncing one’s foreign

citizenship is a positive and voluntary act of representation as

to one’s nationality and citizenship; it does not divest Filipino

citizenship regained by repatriation but it recants the Oath of

Renunciation required to qualify one to run for an elective

position.

Section 5(2) of The Citizenship Retention and Re-acquisition Act of

2003 provides:

Those who retain or re-acquire Philippine citizenship under this Act shall

enjoy full civil and political rights and be subject to all attendant liabilities

and responsibilities under existing laws of the Philippines and the following

conditions:

x x x x

(2) Those seeking elective public in the Philippines shall meet the

qualification for holding such public office as required by the Constitution

11

and existing laws and, at the time of the filing of the certificate of candidacy,

make a personal and sworn renunciation of any and all foreign citizenship

before any public officer authorized to administer an oath. x x x31

Rommel Arnado took all the necessary steps to qualify to run for a

public office. He took the Oath of Allegiance and renounced his foreign

citizenship. There is no question that after performing these twin

requirements required under Section 5(2) of R.A. No. 9225 or the

Citizenship Retention and Re-acquisition Act of 2003, he became

eligible to run for public office.

Indeed, Arnado took the Oath of Allegiance not just only once but

twice: first, on 10 July 2008 when he applied for repatriation before

the Consulate General of the Philippines in San Francisco, USA, and

again on 03 April 2009 simultaneous with the execution of his

Affidavit of Renunciation. By taking the Oath of Allegiance to the

Republic, Arnado re-acquired his Philippine citizenship. At the time,

however, he likewise possessed American citizenship. Arnado had

therefore become a dual citizen.

After reacquiring his Philippine citizenship, Arnado renounced his

American citizenship by executing an Affidavit of Renunciation, thus

completing the requirements for eligibility to run for public office.

By renouncing his foreign citizenship, he was deemed to be solely a

Filipino citizen, regardless of the effect of such renunciation under the

laws of the foreign country.32

_______________

32 See excerpts of deliberations of Congress reproduced in AASJS v. Datumanong,

G.R. No. 160869, 11 May 2007, 523 SCRA 108.

In resolving the aforecited issues in this case, resort to the deliberations of

Congress is necessary to determine the intent of the legislative branch in drafting the

assailed law. During the deliberations, the issue of whether Rep. Act No. 9225 would

allow dual allegiance had in fact been the subject of debate. The record of the

legislative deliberations reveals the following:

x x x x

Pursuing his point, Rep. Dilangalen noted that under the measure, two

situations exist―the retention of foreign citizenship, and the reacquisition of

Philippine citizenship. In this case, he observed that there are two citizenships

and therefore, two allegiances. He pointed out that under the Constitution, dual

allegiance is inimical to public interest. He thereafter asked whether with the

creation of dual allegiance by reason of retention of foreign citizenship and the

reacquisition of Philippine citizenship, there will now be a violation of the

Constitution.

Rep. Locsin underscored that the measure does not seek to address the

constitutional injunction on dual allegiance as inimical to public interest. He

said that the proposed law aims to facilitate the reacquisition of

Philippine citizenship by speedy means. However, he said that in one

sense, it addresses the problem of dual citizenshipby requiring the

taking of an oath. He explained that the problem of dual citizenship is

transferred from the Philippines to the foreign country because the

latest oath that will be taken by the former Filipino is one of allegiance

to the Philippines and not to the United States, as the case may be. He

added that this is a matter which the Philippine government will have no

concern and competence over. Rep. Dilangalen asked why this will no longer be

the country’s concern, when dual allegiance is involved.

447

VOL. 696, APRIL 16, 2013 447

Maquiling vs. Commission on

Elections However, this legal presumption does not operate permanently

and is open to attack when, after renouncing the

_______________

Rep. Locsin clarified that this was precisely his objection to the original version of

the bill, which did not require an oath of allegiance. Since the measure now

requires this oath, the problem of dual allegiance is transferred from the

Philippines to the foreign country concerned, he explained.

x x x x

Rep. Dilangalen asked whether in the particular case, the person did not denounce

his foreign citizenship and therefore still owes allegiance to the foreign government,

and at the same time, owes his allegiance to the Philippine government, such that

there is now a case of dual citizenship and dual allegiance.

Rep. Locsin clarified that by swearing to the supreme authority of the

Republic, the person implicitly renounces his foreign citizenship. However, he

said that this is not a matter that he wishes to address in Congress because he is not a

member of a foreign parliament but a Member of the House.

x x x x

Rep. Locsin replied that it is imperative that those who have dual allegiance

contrary to national interest should be dealt with by law. However, he said that the

dual allegiance problem is not addressed in the bill. He then cited the Declaration of

Policy in the bill which states that “It is hereby declared the policy of the State that all

citizens who become citizens of another country shall be deemed not to have lost their

12

Philippine citizenship under the conditions of this Act.” He stressed that what the

bill does is recognize Philippine citizenship but says nothing about the

other citizenship.

Rep. Locsin further pointed out that the problem of dual allegiance is created

wherein a natural-born citizen of the Philippines takes an oath of allegiance to another

country and in that oath says that he abjures and absolutely renounces all allegiance

to his country of origin and swears allegiance to that

448

448 SUPREME COURT REPORTS

ANNOTATED

Maquiling vs. Commission on

Elections foreign citizenship, the citizen performs positive acts showing his

continued possession of a foreign citizenship.33

_______________

foreign country. The original Bill had left it at this stage, he explained. In

the present measure, he clarified, a person is required to take an oath

and the last he utters is one of allegiance to the country. He then said

that the problem of dual allegiance is no longer the problem of the

Philippines but of the other foreign country. (Emphasis supplied)

33 See Discussion of Senators Enrile and Pimentel on Sec. 40(d) of the Local

Government Code, reproduced in Cordora v. COMELEC, G.R. No. 176947, 19 February

2009, 580 SCRA 12.

By electing Philippine citizenship, such candidates at the same time

forswear allegiance to the other country of which they are also citizens and

thereby terminate their status as dual citizens. It may be that, from the point of

view of the foreign state and of its laws, such an individual has not effectively

renounced his foreign citizenship. That is of no moment as the following

discussion on §40(d) between Senators Enrile and Pimentel clearly shows:

SENATOR ENRILE:

Mr. President, I would like to ask clarification of line 41, page 17: “Any

person with dual citizenship” is disqualified to run for any elective local

position. Under the present Constitution, Mr. President, someone whose mother

is a citizen of the Philippines but his father is a foreigner is a natural-born

citizen of the Republic. There is no requirement that such a natural-born

citizen, upon reaching the age of majority, must elect or give up Philippine

citizenship.

On the assumption that this person would carry two passports, one

belonging to the country of his or her father and one belonging to the Republic

of the Philippines, may such a situation disqualify the person to run for a local

government position?

SENATOR PIMENTEL:

To my mind, Mr. President, it only means that at the moment when he

would want to run for public office, he has to repudiate one of his citizenships.

449

VOL. 696, APRIL 16, 2013 449

Maquiling vs. Commission on

Elections Arnado himself subjected the issue of his citizenship to attack

when, after renouncing his foreign citizenship, he continued to use his

US passport to travel in and out of the country before filing his

certificate of candidacy on 30 November 2009. The pivotal question to

determine is whether he was solely and exclusively a Filipino citizen

at the time he filed

_______________

SENATOR ENRILE:

Suppose he carries only a Philippine passport but the country of origin or

the country of the father claims that person, nevertheless, as a citizen? No one

can renounce. There are such countries in the world.

SENATOR PIMENTEL:

Well, the very fact that he is running for public office would, in effect, be an

election for him of his desire to be considered a Filipino citizen.

SENATOR ENRILE:

But, precisely, Mr. President, the Constitution does not require an election.

Under the Constitution, a person whose mother is a citizen of the Philippines is,

at birth, a citizen without any overt act to claim the citizenship.

SENATOR PIMENTEL:

Yes. What we are saying, Mr. President, is: Under the Gentleman’s

example, if he does not renounce his other citizenship, then he is opening

himself to question. So, if he is really interested to run, the first thing he should

do is to say in the Certificate of Candidacy that: “I am a Filipino citizen, and I

have only one citizenship.”

SENATOR ENRILE:

But we are talking from the viewpoint of Philippine law, Mr. President. He

will always have one citizenship, and that is the citizenship invested upon him

or her in the Constitution of the Republic.

SENATOR PIMENTEL:

13

That is true, Mr. President. But if he exercises acts that will prove that he

also acknowledges other citizenships, then he will probably fall under this

disqualification.

450

450 SUPREME COURT REPORTS

ANNOTATED

Maquiling vs. Commission on

Elections his certificate of candidacy, thereby rendering him eligible to run for

public office.

Between 03 April 2009, the date he renounced his foreign

citizenship, and 30 November 2009, the date he filed his COC, he used

his US passport four times, actions that run counter to the affidavit of

renunciation he had earlier executed. By using his foreign passport,

Arnado positively and voluntarily represented himself as an

American, in effect declaring before immigration authorities of both

countries that he is an American citizen, with all attendant rights and

privileges granted by the United States of America.

The renunciation of foreign citizenship is not a hollow oath that

can simply be professed at any time, only to be violated the next day.

It requires an absolute and perpetual renunciation of the foreign

citizenship and a full divestment of all civil and political rights

granted by the foreign country which granted the citizenship.

Mercado v. Manzano34 already hinted at this situation when the

Court declared:

His declarations will be taken upon the faith that he will fulfill his

undertaking made under oath. Should he betray that trust, there are enough

sanctions for declaring the loss of his Philippine citizenship through

expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, we

sustained the denial of entry into the country of petitioner on the ground

that, after taking his oath as a naturalized citizen, he applied for the renewal

of his Portuguese passport and declared in commercial documents executed

abroad that he was a Portuguese national. A similar sanction can be taken

against anyone who, in electing Philippine citizenship, renounces his foreign

nationality, but subsequently does some act constituting renunciation of his

Philippine citizenship.

While the act of using a foreign passport is not one of the acts

enumerated in Commonwealth Act No. 63 constituting

_______________

34 Supra note 28 at p. 153; pp. 649-650.

451

VOL. 696, APRIL 16, 2013 451

Maquiling vs. Commission on

Elections renunciation and loss of Philippine citizenship,35 it is nevertheless an

act which repudiates the very oath of renunciation required for a

former Filipino citizen who is also a citizen of another country to be

qualified to run for a local elective position.

When Arnado used his US passport on 14 April 2009, or just

eleven days after he renounced his American citizenship, he recanted

his Oath of Renunciation36 that he “absolutely and perpetually

renounce(s) all allegiance and fidelity to the UNITED STATES OF

AMERICA”37 and that he “divest(s) [him]self of full employment of all

civil and political rights and privileges of the United States of

America.”38

We agree with the COMELEC En Bancthat such act of using a

foreign passport does not divest Arnado of his Filipino citizenship,

which he acquired by repatriation. However, by representing himself

as an American citizen, Arnado voluntarily and effectively reverted to

his earlier status as a dual

_______________

35 Under Commonwealth Act No. 63, a Filipino citizen may lose his citizenship:

(1) By naturalization in a foreign country;

(2) By express renunciation of citizenship;

(3) By subscribing to an oath of allegiance to support the constitution or laws of

a foreign country upon attaining twenty-one years of age or more;

(4) By accepting commission in the military, naval or air service of a foreign

country;

(5) By cancellation of the certificate of naturalization;

(6) By having been declared by competent authority, a deserter of the Philippine

armed forces in time of war, unless subsequently, a plenary pardon or amnesty has

been granted; and

(7) In case of a woman, upon her marriage, to a foreigner if, by virtue of the laws

in force in her husband’s country, she acquires his nationality.

36 See Note 7.

37 Id.

38 Id.

452

452 SUPREME COURT REPORTS

14

ANNOTATED

Maquiling vs. Commission on

Elections citizen. Such reversion was not retroactive; it took place the instant

Arnado represented himself as an American citizen by using his US

passport.

This act of using a foreign passport after renouncing one’s foreign

citizenship is fatal to Arnado’s bid for public office, as it effectively

imposed on him a disqualification to run for an elective local position.

Arnado’s category of dual citizenship is that by which foreign

citizenship is acquired through a positive act of applying for

naturalization. This is distinct from those considered dual citizens by

virtue of birth, who are not required by law to take the oath of

renunciation as the mere filing of the certificate of candidacy already

carries with it an implied renunciation of foreign citizenship.39 Dual

citizens by naturalization, on the other hand, are required to take not

only the Oath of Allegiance to the Republic of the Philippines but also

to personally renounce foreign citizenship in order to qualify as a

candidate for public office.

By the time he filed his certificate of candidacy on 30 November

2009, Arnado was a dual citizen enjoying the rights and privileges of

Filipino and American citizenship. He was qualified to vote, but by

the express disqualification under Section 40(d) of the Local

Government Code,40 he was not qualified to run for a local elective

position.

In effect, Arnado was solely and exclusively a Filipino citizen only

for a period of eleven days, or from 3 April 2009 until 14 April 2009,

on which date he first used his American passport after renouncing

his American citizenship.

This Court has previously ruled that:

Qualifications for public office are continuing requirements and must be

possessed not only at the time of appointment or election or assumption of

office but during the officer’s entire tenure. Once any of the required

qualifications is lost, his title may be seasonably challenged. x x x.41

The citizenship requirement for elective public office is a

continuing one. It must be possessed not just at the time of the

renunciation of the foreign citizenship but continuously. Any act

which violates the oath of renunciation opens the citizenship issue to

attack.

We agree with the pronouncement of the COMELEC First Division

that “Arnado’s act of consistently using his US passport effectively

negated his “Affidavit of Renunciation.”42 This does not mean, that he

failed to comply with the twin requirements under R.A. No. 9225, for

he in fact did. It was after complying with the requirements that he

performed positive acts which effectively disqualified him from

running for an elective public office pursuant to Section 40(d) of the

Local Government Code of 1991.

The purpose of the Local Government Code in disqualifying dual

citizens from running for any elective public office would be thwarted

if we were to allow a person who has earlier renounced his foreign

citizenship, but who subsequently represents himself as a foreign

citizen, to hold any public office.

Arnado justifies the continued use of his US passport with the

explanation that he was not notified of the issuance of his Philippine

passport on 18 June 2009, as a result of which he was only able to

obtain his Philippine passport three (3) months later.43

The COMELEC En Banc differentiated Arnado from Willy Yu, the

Portuguese national who sought naturalization as a Filipino citizen

and later applied for the renewal of his Portuguese passport. That

Arnado did not apply for a US passport after his renunciation does not

make his use of a US passport less of an act that violated the Oath of

Renunciation he took. It was still a positive act of representation as a

US citizen before the immigration officials of this country.

The COMELEC, in ruling favorably for Arnado, stated “Yet, as

soon as he was in possession of his Philippine passport, the

respondent already used the same in his subsequent travels

abroad.”44 We cannot agree with the COMELEC. Three months from

June is September. If indeed, Arnado used his Philippine passport as

soon as he was in possession of it, he would not have used his US

passport on 24 November 2009.

Besides, Arnado’s subsequent use of his Philippine passport does

not correct the fact that after he renounced his foreign citizenship and

prior to filing his certificate of candidacy, he used his US passport. In

the same way that the use of his foreign passport does not undo his

Oath of Renunciation, his subsequent use of his Philippine passport

does not undo his earlier use of his US passport.

15

Citizenship is not a matter of convenience. It is a badge of identity

that comes with attendant civil and political rights accorded by the

state to its citizens. It likewise demands the concomitant duty to

maintain allegiance to one’s flag and country. While those who

acquire dual citizenship by choice are afforded the right of suffrage,

those who seek election or appointment to public office are required to

renounce their foreign citizenship to be deserving of the public trust.

Holding public office demands full and undivided allegiance to the

Republic and to no other.

We therefore hold that Arnado, by using his US passport after

renouncing his American citizenship, has recanted the same Oath of

Renunciation he took. Section 40(d) of the Local Government Code

applies to his situation. He is disqualified not only from holding the

public office but even from becoming a candidate in the May 2010

elections.

We now resolve the next issue.

Resolving the third issue necessitates revisiting Topacio v.

Paredes45 which is the jurisprudential spring of the principle that a

second-placer cannot be proclaimed as the winner in an election

contest. This doctrine must be re-examined and its soundness once

again put to the test to address the ever-recurring issue that a second-

placer who loses to an ineligible candidate cannot be proclaimed as

the winner in the elections.

The facts of the case are as follows:

On June 4, 1912, a general election was held in the town of Imus, Province of

Cavite, to fill the office of municipal president. The petitioner, Felipe Topacio,

and the respondent, Maximo Abad, were opposing candidates for that office.

Topacio received 430 votes, and Abad 281. Abad contested the election upon

the sole ground that Topacio was ineligible in that he was reelected the

second time to the office of the municipal president on June 4, 1912, without

the four years required by Act No. 2045 having intervened.46

Abad thus questioned the eligibility ofTopacio on the basis of a

statutory prohibition for seeking a second re-election absent the four

year interruption.

The often-quoted phrase in Topacio v. Paredes is that “the wreath

of victory cannot be transferred from an ineligible candidate to any

other candidate when the sole question is the eligibility of the one

receiving a plurality of the legally cast ballots.”47

This phrase is not even the ratio decidendi; it is a mere obiter

dictum. The Court was comparing “the effect of a decision that a

candidate is not entitled to the office because of fraud or irregularities

in the elections x x x [with] that produced by declaring a person

ineligible to hold such an office.”

The complete sentence where the phrase is found is part of a

comparison and contrast between the two situations, thus:

Again, the effect of a decision that a candidate is not entitled to the office

because of fraud or irregularities in the elections is quite different from that

produced by declaring a person ineligible to hold such an office. In the former

case the court, after an examination of the ballots may find that some other

person than the candidate declared to have received a plura[l]ity by the board

of canvassers actually received the greater number of votes, in which case the

court issues its mandamus to the board of canvassers to correct the returns

accordingly; or it may find that the manner of holding the election and the

returns are so tainted with fraud or illegality that it cannot be determined

who received a [plurality] of the legally cast ballots. In the latter case, no

question as to the correctness of the returns or the manner of casting and

counting the ballots is before the deciding power, and generally the only

result can be that the election fails entirely. In the former, we have a contest

in the strict sense of the word, because of the opposing parties are striving for

supremacy. If it be found that the successful candidate (according to the

board of canvassers) obtained a plurality in an illegal manner, and that

another candidate was thereal victor, the former must retire in favor of the

latter. In the other case, there is not, strictly speaking, a contest, as the

wreath of victory cannot be transferred from an ineligible candidate

to any other candidate when the sole question is the eligibility of the

one receiving a plurality of the legally cast ballots. In the one case the

question is as to who received a plurality of the legally cast ballots; in the

other, the question is confined to the personal character and circumstances of

a single individual.48 (Emphasis supplied)

Note that the sentence where the phrase is found starts with “In

the other case, there is not, strictly speaking, a contest” in contrast to

the earlier statement, “In the former, we have a contest in the strict

16

sense of the word, because of the opposing parties are striving for

supremacy.”

The Court in Topacio v. Paredes cannot be said to have held that

“the wreath of victory cannot be transferred from an ineligible

candidate to any other candidate when the sole question is

the eligibility of the one receiving a plurality of the legally

cast ballots.”

A proper reading of the case reveals that the ruling therein is that

since the Court of First Instance is without jurisdiction to try a

disqualification case based on the eligibility of the person who

obtained the highest number of votes in the election, its jurisdiction

being confined “to determine which of the contestants has been duly

elected” the judge exceeded his jurisdiction when he “declared that no

one had been legally elected president of the municipality of Imus at

the general election held in that town on 4 June 1912” where “the only

question raised was whether or not Topacio was eligible to be elected

and to hold the office of municipal president.”

The Court did not rule that Topacio was disqualified and that

Abad as the second placer cannot be proclaimed in his stead. The

Court therein ruled:

For the foregoing reasons, we are of the opinion and so hold that the

respondent judge exceeded his jurisdiction in declaring in those

proceedings that no one was elect[ed] municipal president of the municipality

of Imus at the last general election; and that said order and all subsequent

proceedings based thereon are null and void and of no effect; and, although

this decision is rendered on respondents’ answer to the order to show cause,

unless respondents raised some new and additional issues, let judgment be

entered accordingly in 5 days, without costs. So ordered.49

On closer scrutiny, the phrase relied upon by a host of decisions

does not even have a legal basis to stand on. It was a mere

pronouncement of the Court comparing one process with another and

explaining the effects thereof. As an independent statement, it is even

illogical.

Let us examine the statement:

“x x x the wreath of victory cannot be transferred from an

ineligible candidate to any other candidate when the sole

question is the eligibility of the one receiving a plurality of

the legally cast ballots.”

What prevents the transfer of the wreath of victory from the

ineligible candidate to another candidate?

When the issue being decided upon by the Court is the eligibility of

the one receiving a plurality of the legally cast ballots and ineligibility

is thereafter established, what stops the Court from adjudging

another eligible candidate who received the next highest number of

votes as the winner and bestowing upon him that “wreath?”

An ineligible candidate who receives the highest number of votes is

a wrongful winner. By express legal mandate, he could not even have

been a candidate in the first place, but by virtue of the lack of

material time or any other intervening circumstances, his ineligibility

might not have been passed upon prior to election date. Consequently,

he may have had the opportunity to hold himself out to the electorate

as a legitimate and duly qualified candidate. However,

notwithstanding the outcome of the elections, his ineligibility as a

candidate remains unchanged. Ineligibility does not only pertain to

his qualifications as a candidate but necessarily affects his right to

hold public office. The number of ballots cast in his favor cannot cure

the defect of failure to qualify with the substantive legal requirements

of eligibility to run for public office.

The popular vote does not cure the ineligibility of a candidate.

The ballot cannot override the constitutional and statutory

requirements for qualifications and disqualifications of candidates.

When the law requires certain qualifications to be possessed or that

certain disqualifications be not possessed by persons desiring to serve

as elective public officials, those qualifications must be met before one

even becomes a candidate. When a person who is not qualified is voted

for and eventually garners the highest number of votes, even the will

of the electorate expressed through the ballot cannot cure the defect

in the qualifications of the candidate. To rule otherwise is to trample

upon and rent asunder the very law that sets forth the qualifications

17

and disqualifications of candidates. We might as well write off our

election laws if the voice of the electorate is the sole determinant of

who should be proclaimed worthy to occupy elective positions in our

republic.

This has been, in fact, already laid down by the Court in Frivaldo

v. COMELEC50when we pronounced:

x x x. The fact that he was elected by the people of Sorsogon does not

excuse this patent violation of the salutary rule limiting public office

and employment only to the citizens of this country. The

qualifications prescribed for elective office cannot be erased by the

electorate alone. The will of the people as expressed through the

ballot cannot cure the vice of ineligibility, especially if they

mistakenly believed, as in this case, that the candidate was

qualified. Obviously, this rule requires strict application when the deficiency

is lack of citizenship. If a person seeks to serve in the Republic of the

Philippines, he must owe his total loyalty to this country only, abjuring and

renouncing all fealty and fidelity to any other state.51 (Emphasis supplied)

This issue has also been jurisprudentially clarified in Velasco v.

COMELEC52 where the Court ruled that the ruling in Quizon and

Saya-ang cannot be interpreted without qualifications lest “Election

victory x x x becomes a magic formula to bypass election eligibility

requirements.”53

[W]e have ruled in the past that a candidate’s victory in the election may be

considered a sufficient basis to rule in favor of the candidate sought to be

disqualified if the main issue involves defects in the candidate’s certificate of

candidacy. We said that while provisions relating to certificates of candidacy

are mandatory in terms, it is an established rule of interpretation as regards

election laws, that mandatory provisions requiring certain steps before

elections will be construed as directory after the elections, to give effect to the

will of the people. We so ruled in Quizon v. COMELEC andSaya-ang v.

COMELEC:

The present case perhaps presents the proper time and opportunity to

fine-tune our above ruling. We say this with the realization that a blanket

and unqualified reading and application of this ruling can be fraught with

dangerous significance for the rule of law and the integrity of our elections.

For one, such blanket/unqualified reading may provide a way around the law

that effectively negates election requirements aimed at providing the

electorate with the basic information to make an informed choice about a

candidate’s eligibility and fitness for office.

The first requirement that may fall when an unqualified reading is made

is Section 39 of the LGC which specifies the basic qualifications of local

government officials. Equally susceptive of being rendered toothless is

Section 74 of the OEC that sets out what should be stated in a COC. Section

78 may likewise be emasculated as mere delay in the resolution of the

petition to cancel or deny due course to a COC can render a Section 78

petition useless if a candidate with false COC data wins. To state the obvious,

candidates may risk falsifying their COC qualifications if they know that an

election victory will cure any defect that their COCs may have. Election

victory then becomes a magic formula to bypass election eligibility

requirements. (Citations omitted)

What will stop an otherwise disqualified individual from filing a

seemingly valid COC, concealing any disqualification, and employing

every strategy to delay any disqualification case filed against him so

he can submit himself to the electorate and win, if winning the

election will guarantee a disregard of constitutional and statutory

provisions on qualifications and disqualifications of candidates?

It is imperative to safeguard the expression of the sovereign voice

through the ballot by ensuring that its exercise respects the rule of

law. To allow the sovereign voice spoken through the ballot to trump

constitutional and statutory provisions on qualifications and

disqualifications of candidates is not democracy or republicanism. It is

electoral anarchy. When set rules are disregarded and only the

electorate’s voice spoken through the ballot is made to matter in the

end, it precisely serves as an open invitation for electoral anarchy to

set in.

Maquiling is not a second-placer as he obtained the highest

number of votes from among the qualified candidates.

18

With Arnado’s disqualification, Maquiling then becomes the

winner in the election as he obtained the highest number of votes

from among the qualified candidates.

We have ruled in the recent cases ofAratea v.

COMELEC54 and Jalosjos v. COMELEC55 that a void COC cannot

produce any legal effect. Thus, the votes cast in favor of the ineligible

candidate are not considered at all in determining the winner of an

election.

Even when the votes for the ineligible candidate are disregarded,

the will of the electorate is still respected, and even more so. The

votes cast in favor of an ineligible candidate do not constitute the sole

and total expression of the sovereign voice. The votes cast in favor of

eligible and legitimate candidates form part of that voice and must

also be respected.

As in any contest, elections are governed by rules that determine

the qualifications and disqualifications of those who are allowed to

participate as players. When there are participants who turn out to be

ineligible, their victory is voided and the laurel is awarded to the next

in rank who does not possess any of the disqualifications nor lacks

any of the qualifications set in the rules to be eligible as candidates.

There is no need to apply the rule cited in Labo v.

COMELEC56 that when the voters are well aware within the realm of

notoriety of a candidate’s disqualification and still cast their votes in

favor said candidate, then the eligible candidate obtaining the next

higher number of votes may be deemed elected. That rule is also a

mere obiter that further complicated the rules affecting qualified

candidates who placed second to ineligible ones.

The electorate’s awareness of the candidate’s disqualification is not

a prerequisite for the disqualification to attach to the candidate. The

very existence of a disqualifying circumstance makes the candidate

ineligible. Knowledge by the electorate of a candidate’s

disqualification is not necessary before a qualified candidate who

placed second to a disqualified one can be proclaimed as the winner.

The second-placer in the vote count is actually the first-placer among

the qualified candidates.

That the disqualified candidate has already been proclaimed and

has assumed office is of no moment. The subsequent disqualification

based on a substantive ground that existed prior to the filing of the

certificate of candidacy voids not only the COC but also the

proclamation.

Section 6 of R.A. No. 6646 provides:

Section 6. Effect of Disqualification Case.―Any candidate who has been

declared by final judgment to be disqualified shall not be voted for, and the

votes cast for him shall not be counted. If for any reason a candidate is not

declared by final judgment before an election to be disqualified and he is

voted for and receives the winning number of votes in such election, the

Court or Commission shall continue with the trial and hearing of the action,

inquiry, or protest and, upon motion of the complainant or any intervenor,

may during the pendency thereof order the suspension of the proclamation of

such candidate whenever the evidence of his guilt is strong.

There was no chance for Arnado’s proclamation to be suspended

under this rule because Arnado failed to file his answer to the petition

seeking his disqualification. Arnado only filed his Answer on 15 June

2010, long after the elections and after he was already proclaimed as

the winner.

The disqualifying circumstance surrounding Arnado’s candidacy

involves his citizenship. It does not involve the commission of election

offenses as provided for in the first sentence of Section 68 of the

Omnibus Election Code, the effect of which is to disqualify the

individual from continuing as a candidate, or if he has already been

elected, from holding the office.

The disqualifying circumstance affecting Arnado is his citizenship.

As earlier discussed, Arnado was both a Filipino and an American

citizen when he filed his certificate of candidacy.

He was a dual citizen disqualified to run for public office based on

Section 40(d) of the Local Government Code.

Section 40 starts with the statement “The following persons are

disqualified from running for any elective local position.” The

prohibition serves as a bar against the individuals who fall under any

of the enumeration from participating as candidates in the election.

With Arnado being barred from even becoming a candidate, his

certificate of candidacy is thus rendered void from the beginning. It

could not have produced any other legal effect except that Arnado

rendered it impossible to effect his disqualification prior to the

19

elections because he filed his answer to the petition when the

elections were conducted already and he was already proclaimed the

winner.

To hold that such proclamation is valid is to negate the prohibitory

character of the disqualification which Arnado possessed even prior to

the filing of the certificate of candidacy. The affirmation of Arnado’s

disqualification, although made long after the elections, reaches back

to the filing of the certificate of candidacy. Arnado is declared to be

not a candidate at all in the May 2010 elections.

Arnado being a non-candidate, the votes cast in his favor should

not have been counted. This leaves Maquiling as the qualified

candidate who obtained the highest number of votes. Therefore, the

rule on succession under the Local Government Code will not apply.

WHEREFORE, premises considered, the Petition is GRANTED.

The Resolution of the COMELEC En Banc dated 2 February 2011 is

hereby ANNULLED and SET ASIDE. Respondent ROMMEL

ARNADO y CAGOCO is disqualified from running for any local

elective position. CASAN MACODE MAQUILING is hereby

DECLARED the duly elected Mayor of Kauswagan, Lanao del Norte

in the 10 May 2010 elections.

This Decision is immediately executory.

Let a copy of this Decision be served personally upon the parties

and the Commission on Elections.

No pronouncement as to costs.

SO ORDERED.

Velasco, Jr., Peralta, Bersamin, Villarama, Jr., Perez,

Reyes and Perlas-Bernabe, JJ., concur.

Carpio, J., See Concurring Opinion.

Leonardo-De Castro, Del Castillo, Mendoza and Leonen, JJ., Join

the dissent of Justice Brion.

Brion, J., See: Dissent.

Abad, J., See Separate and Concurring Opinion.

20

G.R. No. 119976. September 18, 1995.*

IMELDA ROMUALDEZ-MARCOS, petitioner, vs. COMMISSION ON

ELECTIONS and CIRILO ROY MONTEJO, respondents.

Election Law; Domicile; Residence; Words and Phrases; Residence, for

the purpose of meeting the qualification for an elective position, has a settled

meaning in our jurisdiction.—A perusal of the Resolution of the COMELEC’S

Second Division reveals a startling confusion in the application of settled

concepts of “Domicile” and “Residence” in election law. While the COMELEC

seems to be in agreement with the general proposition that for the purposes

of election law, residence is synonymous with domicile, the Resolution reveals

a tendency to substitute or mistake the concept of domicile for actual

residence, a conception not intended for the purpose of determining a

candidate’s qualifications for election to the House of Representatives as

required by the 1987 Constitution. As it were, residence, for the purpose of

meeting the qualification for an elective position, has a settled meaning in

our jurisdiction.

Same; Same; Same; Same; Domicile includes the twin elements of “the

fact of residing or physical presence in a fixed place” and animus manendi, or

the intention of returning there permanently.—Article 50 of the Civil Code

decrees that “[f]or the exercise of civil rights and the fulfillment of civil

obligations, the domicile of natural persons is their place of habitual

residence.” In Ong vs. Republic this court took the concept of domicile to

mean an individual’s “permanent home,” “a place to which, whenever absent

for business or for pleasure, one intends to return, and depends on facts and

circumstances in the sense that they disclose intent.” Based on the foregoing,

domicile includes the twin elements of “the fact of residing or physical

presence in a fixed place” and animus manendi, or the intention of returning

there permanently.

Same; Same; Same; Same; Domicile and Residence, Distinguished.—

Residence, in its ordinary conception, implies the factual relationship of an

individual to a certain place. It is the physical presence of a person in a given

area, community or country. The essential distinction between residence and

domicile in law is that residence involves the intent to leave when the

purpose for which the resident has taken up his abode ends. One may seek a

place for purposes such as pleasure, business, or health. If a person’s intent

be to remain, it becomes his domicile; if his intent is to leave as soon as his

purpose is established it is residence. It is thus, quite perfectly normal for an

individual to have different residences in various places. However, a person

can only have a single domicile, unless, for various reasons, he successfully

abandons his domicile in favor of another domicile of choice.

Same; Same; Same; Same; Same; As these concepts have evolved in our

election law, what has clearly and unequivocally emerged is the fact that

residence for election purposes is used synonymously with domicile.—For

political purposes the concepts of residence and domicile are dictated by the

peculiar criteria of political laws. As these concepts have evolved in our

election law, what has clearly and unequivocally emerged is the fact that

residence for election purposes is used synonymously with domicile.

Same; Same; Same; Same; Same;Constitutional Law; When the

Constitution speaks of “residence ” in election law, it actually means only

“domicile.”—The deliberations of the 1987 Constitution on the residence

qualification for certain elective positions have placed beyond doubt the

principle that when the Constitution speaks of “residence” in election law, it

actually means only “domicile.”

Same; Same; Same; Same; Same; Same; It is the fact of residence, not a

statement in a certificate of candidacy which ought to be decisive in

determining whether or not an individual has satisfied the constitution’s

residency qualification requirement.—It is the fact of residence, not a

statement in a certificate of candidacy which ought to be decisive in

determining whether or not an individual has satisfied the constitution’s

residency qualification requirement. The said statement becomes material

only when there is or appears to be a deliberate attempt to mislead,

misinform, or hide a fact which would otherwise render a candidate

ineligible. It would be plainly ridiculous for a candidate to deliberately and

knowingly make a statement in a certificate of candidacy which would lead to

his or her disqualification.

Same; Same; Same; Same; Same; The honest mistake in the certificate of

candidacy regarding the period of residency does not negate the fact of

residence in a congressional district if such fact is established by means more

convincing than a mere entry on a piece of paper.—Having been forced by

private respondent to register in her place of actual residence in Leyte

instead of petitioner’s claimed domicile, it appears that petitioner had jotted

down her period of stay in her actual residence in a space which required her

period of stay in her legal residence or domicile. The juxtaposition of entries

in Item 7 and Item 8—the first requiring actual residence and the second

requiring domicile—coupled with the circumstances surrounding petitioner’s

registration as a voter in Tolosa obviously led to her writing down an

unintended entry for which she could be disqualified. This honest mistake

should not, however, be allowed to negate the fact of residence in the First

District if such fact were established by means more convincing than a mere

entry on a piece of paper.

21

Same; Same; Same; Same; Same; An individual does not lose his

domicile even if he has lived and maintained residences in different places.—

We have stated, many times in the past, that an individual does not lose his

domicile even if he has lived and maintained residences in different places.

Residence, it bears repeating, implies a factual relationship to a given place

for various purposes. The absence from legal residence or domicile to pursue

a profession, to study or to do other things of a temporary or semi-permanent

nature does not constitute loss of residence. Thus, the assertion by the

COMELEC that “she could not have been a resident of Tacloban City since

childhood up to the time she filed her certificate of candidacy because she

became a resident of many places” flies in the face of settled jurisprudence in

which this Court carefully made distinctions between (actual) residence and

domicile for election law purposes.

Same; Same; Same; Same; Domicile of Origin; A minor follows the

domicile of his parents.—A minor follows the domicile of his parents. As

domicile, once acquired is retained until a new one is gained, it follows that in

spite of the fact of petitioner’s being born in Manila, Tacloban, Leyte was her

domicile of origin by operation of law. This domicile was not established only

when she reached the age of eight years old, when her father brought his

family back to Leyte contrary to private respondent’s averments.

Same; Same; Same; Same; Same; Requisites for a change of domicile.—

Domicile of origin is not easily lost. To successfully effect a change of

domicile, one must demonstrate: 1. An actual removal or an actual change of

domicile; 2. A bona fide intention of abandoning the former place of residence

and establishing a new one; and 3. Acts which correspond with the purpose.

Same; Same; Same; Same; Same; To effect an abandonment requires the

voluntary act of relinquishing former domicile with an intent to supplant the

former domicile with one of her own choosing (domicilium voluntarium).—In

the absence of clear and positive proof based on these criteria, the residence

of origin should be deemed to continue. Only with evidence showing

concurrence of all three requirements can the presumption of continuity or

residence be rebutted, for a change of residence requires an actual and

deliberate abandonment, and one cannot have two legal residences at the

same time. In the case at bench, the evidence adduced by private respondent

plainly lacks the degree of persuasiveness required to convince this court that

an abandonment of domicile of origin in favor of a domicile of choice indeed

occurred. To effect an abandonment requires the voluntary act of

relinquishing petitioner’s former domicile with an intent to supplant the

former domicile with one of her own choosing (domicilium voluntarium).

Same; Same; Same; Same; Marriages;Husband and Wife; The

presumption that the wife automatically gains the husband’s domicile by

operation of law upon marriage cannot be inferred from the use of the term

“residence” in Article 110 of the Civil Code because the Civil Code is one area

where the two concepts are well delineated.—In this connection, it cannot be

correctly argued that petitioner lost her domicile of origin by operation of law

as a result of her marriage to the late President Ferdinand E. Marcos in

1952. For there is a clearly established distinction between the Civil Code

concepts of “domicile” and “residence.” The presumption that the wife

automatically gains the husband’s domicile by operation of law upon

marriage cannot be inferred from the use of the term “residence” in Article

110 of the Civil Code because the Civil Code is one area where the two

concepts are well delineated.

Same; Same; Same; Same; Same; Same; A survey of jurisprudence yields

nothing which would suggest that the female spouse automatically loses her

domicile of origin in favor of the husband’s choice of residence upon

marriage.—A survey of jurisprudence relating to Article 110 or to the

concepts of domicile or residence as they affect the female spouse upon

marriage yields nothing which would suggest that the female spouse

automatically loses her domicile of origin in favor of the husband’s choice of

residence upon marriage.

Same; Same; Same; Same; Same; Same; It is illogical to conclude that

Art. 110 of the Civil Code refers to “domicile” and not to “residence.”—The

duty to live together can only be fulfilled if the husband and wife are

physically together. This takes into account the situations where the couple

has many residences (as in the case of petitioner). If the husband has to stay

in or transfer to any one of their residences, the wife should necessarily be

with him in order that they may “live together.” Hence, it is illogical to

conclude that Art. 110 refers to “domicile” and not to “residence.” Otherwise,

we shall be faced with a situation where the wife is left in the domicile while

the husband, for professional or other reasons, stays in one of their (various)

residences.

Same; Same; Same; Same; Same; Same;What petitioner gained upon

marriage was actual residence—she did not lose her domicile of origin.—

Parenthetically when Petitioner was married to then Congressman Marcos,

in 1954, petitioner was obliged—by virtue of Article 110 of the Civil Code—to

follow her husband’s actual place of residence fixed by him. The problem here

is that at that time, Mr. Marcos had several places of residence, among which

were San Juan, Rizal and Batac, Ilocos Norte. There is no showing which of

these places Mr. Marcos did fix as his family’s residence. But assuming that

22

Mr. Marcos had fixed any of these places as the conjugal residence, what

petitioner gained upon marriage was actual residence. She did not lose her

domicile of origin.

Same; Same; Same; Same; Same; Same;Family Code; The common law

concept of “matrimonial domicile” appears to have been incorporated, as a

result of our jurisprudential experiences after the drafting of the Civil Code of

1950, into the New Family Code.—On the other hand, the common law

concept of “matrimonial domicile” appears to have been incorporated, as a

result of our jurisprudential experiences after the drafting of the Civil Code of

1950, into the New Family Code. To underscore the difference between the

intentions of the Civil Code and the Family Code drafters, the term residence

has been supplanted by the term domicile in an entirely new provision (Art.

69) distinctly different in meaning and spirit from that found in Article 110.

The provision recognizes revolutionary changes in the concept of women’s

rights in the intervening years by making the choice of domicile a product of

mutual agreement between the spouses.

Same; Same; Same; The term residence may mean one thing in civil law

(or under the Civil Code) and quite another thing in political law.—Without

as much belaboring the point, the term residence may mean one thing in civil

law (or under the Civil Code) and quite another thing in political law. What

stands clear is that insofar as the Civil Code is concerned-affecting the rights

and obligations of husband and wife-the term residence should only be

interpreted to mean “actual residence.” The inescapable conclusion derived

from this unambiguous civil law delineation therefore, is that when

petitioner married the former President in 1954, she kept her domicile of

origin and merely gained a new home, not a domicilium necessarium.

Same; Statutory Construction; Mandatory and directory provisions; It is

a settled doctrine that a statute requiring rendition of judgment within a

specified time is generally construed to be merely directory.—It is a settled

doctrine that a statute requiring rendition of judgment within a specified

time is generally construed to be merely directory, “so that non-compliance

with them does not invalidate the judgment on the theory that if the statute

had intended such result it would have clearly indicated it.”

Same; Same; Same; The difference between a mandatory and a directory

provision is often made on grounds of necessity.—The difference between a

mandatory and a directory provision is often made on grounds of necessity.

Adopting the same view held by several American authorities, this court

in Marcelino v. Cruz held that: The difference between a mandatory and

directory provision is often determined on grounds of expediency, the reason

being that less injury results to the general public by disregarding than

enforcing the letter of the law.

Same; Jurisdiction; Electoral Tribunals;The HRET’s jurisdiction as the

sole judge of all contests relating to the elections, returns and qualifications of

members of Congress begins only after a candidate has become a member of

the House of Representatives.—As to the House of Representatives Electoral

Tribunal’s supposed assumption of jurisdiction over the issue of petitioner’s

qualifications after the May 8, 1995 elections, suffice it to say that HRET’S

jurisdiction as the sole judge of all contests relating to the elections return

and qualifications of members of Congress begins only after a candidate has

become a member of the House of Representatives. Petitioner not being a

member of the House of Representatives, it is obvious that the HRET at this

point has no jurisdiction over the question.

ROMERO, J., Separate Opinion :

Husband and Wife; A widow can no longer be bound by the domicile of

the departed husband, if at all she was before—and, exercising free will, she

may opt to reestablish her domicile of origin.—I submit that a widow, like the

petitioner and others similarly situated, can no longer be bound by the

domicile of the departed husband, if at all she was before. Neither does she

automatically revert to her domicile of origin, but exercising free will, she

may opt to reestablish her domicile of origin. In returning to Tacloban and

subsequently, to Barangay Olot, Tolosa, both of which are located in the First

District of Leyte, petitioner amply demonstrated by overt acts, her election of

a domicile of choice, in this case, a reversion to her domicile of origin. Added

together, the time when she set up her domicile in the two places sufficed to

meet the one-year requirement to run as Representatives of the First District

of Leyte.

PUNO, J., Concurring Opinion :

Husband and Wife; It is not the mere fact of marriage but the deliberate

choice of a different domicile by the husband that will change the domicile of a

wife from what it was prior to their marriage.—It is not, therefore, the mere

fact of marriage but the deliberate choice of a different domicile by the

husband that will change the domicile of a wife from what it was prior to

their marriage. The domiciliary decision made by the husband in the exercise

of the right conferred by Article 110 of the Civil Code binds the wife. Any and

all acts of a wife during her coverture contrary to the domiciliary choice of the

husband cannot change in any way the domicile legally fixed by the husband.

23

These acts are void not only because the wife lacks the capacity to choose her

domicile but also because they are contrary to law and public policy.

Same; Family Code; In light of the Family Code which abrogated the

inequality between husband and wife as started and perpetuated by the

common law, there is no reason in espousing the anomalous rule that the wife

still retains the domicile of her dead husband.—In light of the Family Code

which abrogated the inequality between husband and wife as started and

perpetuated by the common law, there is no reason in espousing the

anomalous rule that the wife still retains the domicile of her dead

husband. Article 110 of the Civil Code which provides the statutory support

for this stance has been repealed by Article 69 of the Family Code. By its

appeal, it becomes a dead-letter law, and we are not free to resurrect it by

giving it further effect in any way or manner such as by ruling that the

petitioner is still bound by the domiciliary determination of her dead

husband.

Same; Constitutional Law; Equal Protection Clause; 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 cannot survive a constitutional challenge.—Aside from reckoning

with the Family Code, we have to consider our Constitution and its firm

guarantees of due process and equal protection of law. It can hardly be

doubted that the common law imposition on a married woman of her dead

husband’s domicile even beyond his grave is patently discriminatory to

women. It is a gender-based discrimination and is not rationally related to

the objective of promoting family solidarity. It cannot survive a constitutional

challenge.

Same; Domicile; The better stance is to rule that petitioner reac-quired

her Tacloban domicile upon the death of her husband in 1989.—Prescinding

from these premises, I respectfully submit that the better stance is to rule that

petitioner reacquired her Tacloban domicile upon the death of her husband in

1989.This is the necessary consequence of the view that petitioner’s Batac

dictated domicile did not continue after her husband’s death; otherwise, she

would have no domicile and that will violate the universal rule that no person

can be without a domicile at any point of time. This stance also restores the

right of petitioner to choose her domicile before it was taken away by Article

110 of the Civil Code, a right now recognized by the Family Code and

protected by the Constitution.

Constitutional Law; Election Law;Statutory Construction; Political

Harassment;Equal Protection; There is but one Constitution for all Filipinos—

petitioner cannot be adjudged by a “different” Constitution, and the worst way

to interpret the Constitution is to inject in its interpretation bile and

bitterness.—All these attempts to misuse our laws and legal processes are

forms of rank harassments and invidious discriminations against petitioner to

deny her equal access to a public office. We cannot commit any hermeneutic

violence to the Constitution by torturing the meaning of equality, the end

result of which will allow the harassment and discrimination of petitioner

who has lived a controversial life, a past of alternating light and

shadow. There is but one Constitution for all Filipinos. Petitioner cannot be

adjudged by a “different” Constitution, and the worst way to interpret the

Constitution is to inject in its interpretation, bile and bitterness.

FRANCISCO, J., Concurring Opinion :

Husband and Wife; Domicile; Petitioner reverted to her original domicile

upon her husband’s death without even signifying her intention to that

effect.—Tacloban, Leyte, is petitioner’s domicile of origin which was

involuntarily supplanted with another, i.e., Batac, Ilocos Norte, upon her

marriage in 1954 with then Congressman Marcos. By legal fiction she

followed the domicile of her husband. In my view, the reason for the law is for

the spouses to fully and effectively perform their marital duties and

obligations to one another. The question of domicile, however, is not affected

by the fact that it was the legal or moral duty of the individual to reside in a

given place (28 C.J.S. §11). Thus, while the wife retains her marital domicile

so long as the marriage subsists, she automatically loses it upon the latter’s

termination, for the reason behind the law then ceases. Otherwise, petitioner,

after her marriage was ended by the death of her husband, would be placed

in a quite absurd and unfair situation of having been freed from all wifely

obligations yet made to hold on to one which no longer serves any meaningful

purpose. It is my view therefore that petitioner reverted to her original

domicile of Tacloban, Leyte upon her husband’s death without even signifying

her intention to that effect. It is for the private respondent to prove, not for

petitioner to disprove, that petitioner has effectively abandoned Tacloban,

Leyte for Batac, Ilocos Norte or for some other place/s.

PADILLA, J., Dissenting Opinion :

Election Law; The one year residence period is crucial regardless of

whether or not the term “residence” is to be synonymous with “domicile”—the

candidate’s intent and actual presence in one district must in all situations

satisfy the length of time prescribed by the fundamental law.—To my mind,

the one year residence period is crucial regardless of whether or not the term

24

“residence” is to be synonymous with “domicile.” In other words, the

candidate’s intent and actual presence in one district must in all situations

satisfy the length of time prescribed by the fundamental law. And this,

because of a definite Constitutional purpose. He must be familiar with the

environment and problems of a district he intends to represent in Congress

and the one-year residence in said district would be the minimum period to

acquire such familiarity, if not versatility.

Same; Statutes; R.A. 6646; The Court should re-examine and

consequently abandon the doctrine in the Jun Labo case.—It stands to reason

that Section 6 of RA 6646 does not make the second placer the winner simply

because a “winning candidate is disqualified,” but that the law considers him

as the candidate who had obtained the highest number of votes as a result of

the votes cast for the disqualified candidate not being counted or considered.

As this law clearly reflects the legislative policy on the matter, then there is

no reason why this Court should not re-examine and consequently abandon

the doctrine in the Jun Labo case. It has been stated that “the qualifications

prescribed for elective office cannot be erased by the electorate alone. The will

of the people as expressed through the ballot cannot cure the vice of

ineligibility” most especially when it is mandated by no less than the

Constitution.

REGALADO, J., Dissenting Opinion :

Husband and Wife; Domicile; In the absence of affirmative evidence to

the contrary, the presumption is that a wife’s domicile or legal residence

follows that of her husband and will continue after his death.—Thus, the

American rule is likewise to the effect that while after the husband’s death

the wife has the right to elect her own domicile, she nevertheless retains the

last domicile of her deceased husband until she makes an actual change. In

the absence of affirmative evidence, to the contrary, the presumption is that a

wife’s domicile or legal residence follows that of her husband and will

continue after his death.

DAVIDE, JR., J., Dissenting Opinion :

Husband and Wife; Domicile; Evidence;Burden of Proof; Since the

widow is presumed to retain her deceased husband’s domicile until she

exercises her revived power to acquire her own domicile, the burden is upon

her to prove that she has exercised her right to acquire her own domicile.—The

majority opinion also disregards a basic rule in evidence that he who asserts

a fact or the affirmative of an issue has the burden of proving it (Imperial

Victory Shipping Agency vs. NLRC, 200 SCRA 178 [1991]; P.T. Cerna Corp.

vs. Court of Appeals , 221 SCRA 19 [1993]). Having admitted marriage to the

then Congressman Marcos, the petitioner could not deny the legal

consequence thereof on the change of her domicile to that of her husband. The

majority opinion rules or at least concludes that “[b]y operation of law

(domicilium necesarium ), her legal domicile at the time of her marriage

automatically became Batac, Ilocos Norte.” That conclusion is consistent with

Article 110 of the Civil Code. Since she is presumed to retain her deceased

husband’s domicile until she exercises her revived power to acquire her own

domicile, the burden is upon her to prove that she has exercised her right to

acquire her own domicile. She miserably failed to discharge that burden.

VITUG, J., Separate Opinion :

Election Law; Electoral Tribunals;Commission on

Elections; Jurisdiction; The COMELEC’s jurisdiction, in the case of

congressional elections, ends when the jurisdiction of the Electoral Tribunal

concerned begins.—The COMELEC’s jurisdiction, in the case of congressional

elections, ends when the jurisdiction of the Electoral Tribunal concerned

begins. It signifies that the protestee must have theretofore been duly

proclaimed and has since become a “member” of the Senate or the House of

Representatives. The question can be asked on whether or not the

proclamation of a candidate is just a ministerial function of the Commission

on Elections dictated solely on the number of votes cast in an election

exercise. I believe, it is not. A ministerial duty is an obligation the

performance of which, being adequately defined, does not allow the use of

further judgment or discretion. The COMELEC, in its particular case, is

tasked with the full responsibility of ascertaining all the facts and conditions

such as may be required by law before a proclamation is properly done.

Same; Same; Separation of Powers; The Court should refrain from any

undue encroachment on the ultimate exercise of authority by the Electoral

Tribunals on matters which, by no less than a constitutional fiat, are explicitly

within their exclusive domain.—The Court, on its part, should, in my view at

least, refrain from any undue encroachment on the ultimate exercise of

authority by the Electoral Tribunals on matters which, by no less than a

constitutional fiat, are explicitly within their exclusive domain. The nagging

question, if it were otherwise, would be the effect of the Court’s peremptory

pronouncement on the ability of the Electoral Tribunal to later come up with

its own judgment in a contest “relating to the election, returns and

qualification” of its members.

25

MENDOZA, J., Separate Opinion :

Election Law; Commission on Elections;Jurisdiction; The COMELEC

has no power to disqualify candidates on the ground that they lack eligibility

for the office to which they seek to be elected—the qualifications of candidates

may be questioned only in the event they are elected, by filing a petition for quo

warranto or an election protest, in the appropriate forum.—In my view the

issue in this case is whether the Commission on Elections has the power to

disqualify candidates on the ground that they lack eligibility for the office to

which they seek to be elected. I think that it has none and that the

qualifications of candidates may be questioned only in the event they are

elected, by filing a petition for quo warranto or an election protest in the

appropriate forum, not necessarily in the COMELEC but, as in this case, in

the House of Representatives Electoral Tribunal. That the parties in this case

took part in the proceedings in the COMELEC is of no moment. Such

proceedings were unauthorized and were not rendered valid by their

agreement to submit their dispute to that body.

Same; Same; Same; The Omnibus Election Code, by its silence about a

pre-proclamation remedy based on a candidate’s qualifications, underscores

the policy of not authorizing any inquiry into the qualifications of candidates

unless they have been elected.—By providing in § 253 for the remedy of quo

warranto for determining an elected official’s qualifications after the results

of elections are proclaimed, while being conspicuously silent about a pre-

proclamation remedy based on the same ground, the Omnibus Election Code,

or OEC, by its silence underscores the policy of not authorizing any inquiry

into the qualifications of candidates unless they have been elected.

Same; Same; Same; Administrative Law;The lack of provision for

declaring the ineligibility of candidates cannot be supplied by a mere rule—

such an act is equivalent to the creation of a cause of action which is a

substantive matter which the COMELEC, in the exercise of its rulemaking

power cannot do.—Apparently realizing the lack of an authorized proceeding

for declaring the ineligibility of candidates, the COMELEC amended its rules

on February 15, 1993 so as to provide in Rule 25, § 1 the following: Grounds

for disqualification.—Any candidate who does not possess all the

qualifications of a candidate as provided for by the Constitution or by existing

law or who commits any act declared by law to be grounds for disqualification

may be disqualified from continuing as a candidate. The lack of provision for

declaring the ineligibility of candidates, however, cannot be supplied by a

mere rule. Such an act is equivalent to the creation of a cause of action which

is a substantive matter which the COMELEC, in the exercise of its

rulemaking power under Art. IX, A, § 6 of the Constitution, cannot do. It is

noteworthy that the Constitution withholds from the COMELEC even the

power to decide cases involving the right to vote, which essentially involves

an inquiry intoqualifications based on age, residence andcitizenship of voters.

(Art. IX, C, § 2[3]).

Same; Same; Same; Proceedings for “disqualification” and for a

declaration of “ineligibility,” distinguished; The assimilation in Rule 25 of the

COMELEC rules of grounds for ineligibility into grounds for disqualification

is contrary to the evident intention of the law.—The assimilation in Rule 25 of

the COMELEC rules of grounds for ineligibility into grounds for

disqualification is contrary to the evident intention of the law. For not only in

their grounds but also in their consequences are proceedings for

“disqualification” different from those for a declaration of “ineligibility.”

“Disqualification” proceedings, as already stated, are based on grounds

specified in §§ 12 and 68 of the Omnibus Election Code and in § 40 of the

Local Government Code and are for the purpose of barring an individual

frombecoming a candidate or from continuing as a candidate for public office.

In a word, their purpose is to eliminate a candidate from the race either from

the start or during its progress. “Ineligibility,” on the other hand, refers to the

lack of the qualifications prescribed in the Constitution or the statutes

for holding public office and the purpose of the proceedings for declaration of

ineligibility is to remove the incumbent from office.

SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.

The facts are stated in the opinion of the Court.

Estelito P. Mendoza for petitioner.

Paquito N. Ochoa, Jr. and Gracelda N. Andres for private

respondent.

KAPUNAN, J.:

A constitutional provision should be construed as to give it effective

operation and suppress the mischief at which it is aimed.1 The 1987

Constitution mandates that an aspirant for election to the House of

Representatives be “a registered voter in the district in which he shall

be elected, and a resident thereof for a period of not less than one year

immediately preceding the election.”2 The mischief which this

provision—reproduced verbatim from the 1973 Constitution—seeks to

prevent is the possibility of a “stranger or newcomer unacquainted

with the conditions and needs of a community and not identified with

the latter, from an elective office to serve that community.”3

26

Petitioner Imelda Romualdez-Marcos filed her Certificate of

Candidacy for the position of Representative of the First District of

Leyte with the Provincial Election Supervisor on March 8, 1995,

providing the following information in item No. 8:4

RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE

ELECTED IMMEDIATELY PRECEDING THE ELECTION:_ _ _ _

_ _ Years and seven Months

On March 23, 1995, private respondent Cirilo Roy Montejo, the

incumbent Representative of the First District of Leyte and a

candidate for the same position, filed a “Petition for Cancellation and

Disqualification”5 with the Commission on Elections alleging that

petitioner did not meet the constitutional requirement for residency.

In his petition, private respondent contended that Mrs. Marcos lacked

the Constitution’s one year residency requirement for candidates to

the House of Representatives on the evidence of declarations made by

her in Voter Registration Record 94-No. 33497726and in her

Certificate of Candidacy. He prayed that “an order be issued declaring

(petitioner) disqualified and canceling the certificate of candidacy.”7

On March 29, 1995, petitioner filed an Amended/Corrected

Certificate of Candidacy, changing the entry “seven” months to “since

childhood” in item No. 8 of the amended certificate.8 On the same day,

the Provincial Election Supervisor of Leyte informed petitioner that:

[T]his office cannot receive or accept the aforementioned

Certificate of Candidacy on the ground that it is filed out of time,

the deadline for the filing of the same having already lapsed on

March 20, 1995. The Corrected/Amended Certificate of Candidacy

should have been filed on or before the March 20, 1995 deadline.9

Consequently, petitioner filed the Amended/Corrected Certificate of

Candidacy with the COMELEC’s Head Office in Intramuros, Manila

on March 31, 1995. Her Answer to private respondent’s petition in

SPA No. 95-009 was likewise filed with the head office on the same

day. In said Answer, petitioner averred that the entry of the word

“seven” in her original Certificate of Candidacy was the result of an

“honest misinterpretation”10 which she sought to rectify by adding the

words “since childhood” in her Amended/Corrected Certificate of

Candidacy and that “she has always maintained Tacloban City as her

domicile or residence.”11 Impugning respondent’s motive in filing the

petition seeking her disqualification, she noted that:

When respondent (petitioner herein) announced that she was

intending to register as a voter in Tacloban City and run for

Congress in the First District of Leyte, petitioner immediately

opposed her intended registration by writing a letter stating that

“she is not a resident of said city but of Barangay Olot, Tolosa,

Leyte. After respondent had registered as a voter in Tolosa

following completion of her six month actual residence therein,

petitioner filed a petition with the COMELEC to transfer the town

of Tolosa from the First District to the Second District and pursued

such a move up to the Supreme Court, his purpose being to remove

respondent as petitioner’s opponent in the congressional election in

the First District. He also filed a bill, along with other Leyte

Congressmen, seeking the creation of another legislative district to

remove the town of Tolosa out of the First District, to achieve his

purpose. However, such bill did not pass the Senate. Having failed

on such moves, petitioner now filed the instant petition for the

same objective, as it is obvious that he is afraid to submit along

with respondent for the judgment and verdict of the electorate of

the First District of Leyte in an honest, orderly, peaceful, free and

clean elections on May 8, 1995.12

On April 24, 1995, the Second Division of the Commission on

Elections (COMELEC), by a vote of 2 to 1,13 came up with a Resolution

1) finding private respondent’s Petition for Disqualification in SPA 95-

009 meritorious; 2) striking off petitioner’s Corrected/Amended

Certificate of Candidacy of March 31, 1995; and 3) canceling her

original Certificate of Candidacy.14 Dealing with two primary issues,

namely, the validity of amending the original Certificate of Candidacy

after the lapse of the deadline for filing certificates of candidacy, and

petitioner’s compliance with the one year residency requirement, the

Second Division held:

“Respondent raised the affirmative defense in her Answer that the

printed word “Seven” (months) was a result of an “honest

misinterpretation or honest mistake” on her part and, therefore,

an amendment should subsequently be allowed. She averred that

she thought that what was asked was her “actual and physical”

presence in Tolosa and not residence of origin or domicile in the

First Legislative District, to which she could have responded “since

childhood.” In an accompanying affidavit, she stated that her

domicile is Tacloban City, a component of the First District, to

27

which she always intended to return whenever absent and which

she has never abandoned. Furthermore, in her memorandum, she

tried to discredit petitioner’s theory of disqualification by alleging

that she has been a resident of the First Legislative District of

Leyte since childhood, although she only became a resident of the

Municipality of Tolosa for seven months. She asserts that she has

always been a resident of Tacloban City, a component of the First

District, before coming to the Municipality of Tolosa.

Along this point, it is interesting to note that prior to her

registration in Tolosa, respondent announced that she would be

registering in Tacloban City so that she can be a candidate for the

District. However, this intention was rebuffed when petitioner

wrote the Election Officer of Tacloban not to allow respondent

since she is a resident of Tolosa and not Tacloban. She never

disputed this claim and instead implicitly acceded to it by

registering in Tolosa.

This incident belies respondent’s claim of ‘honest

misinterpretation or honest mistake.’ Besides, the Certificate of

Candidacy only asks for RESIDENCE. Since on the basis of her

Answer, she was quite aware of ‘residence of origin’ which she

interprets to be Tacloban City, it is curious why she did not cite

Tacloban City in her Certificate of Candidacy. Her explanation

that she thought what was asked was her actual and physical

presence in Tolosa is not easy to believe because there is none in

the question that insinuates about Tolosa. In fact, item No. 8 in

the Certificate of Candidacy speaks clearly of ‘Residency in the

CONSTITUENCY where I seek to be elected immediately

preceding the election,’ thus, the explanation of respondent fails to

be persuasive.

From the foregoing, respondent’s defense of an honest mistake

or misinterpretation, therefore, is devoid of merit.

To further buttress respondent’s contention that an amendment

may be made, she cited the case of Alialy v. COMELEC (2 SCRA

957). The reliance of respondent on the case of Alialy is misplaced.

The case only applies to the “inconsequential deviations which

cannot affect the result of the election, or deviations from

provisions intended primarily to secure timely and orderly conduct

of elections.’ The Supreme Court in that case considered the

amendment only as a matter of form. But in the instant case, the

amendment cannot be considered as a matter of form or an

inconsequential deviation. The change in the number of years of

residence in the place where respondent seeks to be elected is a

substantial matter which determines her qualification as a

candidacy, specially those intended to suppress, accurate material

representation in the original certificate which adversely affects

the filer. To admit the amended certificate is to condone the evils

brought by the shifting minds of manipulating candidate, to the

detriment of the integrity of the election.

Moreover, to allow respondent to change the seven (7) month

period of her residency in order to prolong it by claiming it was

‘since childhood’ is to allow an untruthfulness to be committed

before this Commission. The arithmetical accuracy of the 7 months

residency the respondent indicated in her certificate of candidacy

can be gleaned from her entry in her Voter’s Registration Record

accomplished on January 28, 1995 which reflects that she is a

resident of Brgy. Olot, Tolosa, Leyte for 6 months at the time of the

said registration (Annex A, Petition). Said accuracy is further

buttressed by her letter to the election officer of San Juan, Metro

Manila, dated August 24, 1994, requesting for the cancellation of

her registration in the Permanent List of Voters thereat so that

she can be re-registered or transferred to Brgy. Olot, Tolosa, Leyte.

The dates of these three (3) different documents show the

respondent’s consistent conviction that she has transferred her

residence to Olot, Tolosa, Leyte from Metro Manila only for such

limited period of time, starting in the last week of August 1994

which on March 8, 1995 will only sum up to 7 months. The

Commission, therefore, cannot be persuaded to believe in the

respondent’s contention that it was an error.

x x x

Based on these reasons the Amended/Corrected Certificate of

Candidacy cannot be admitted by this Commission.

x x x

28

Anent the second issue, and based on the foregoing discussion,

it is clear that respondent has not complied with the one year

residency requirement of the Constitution.

In election cases, the term ‘residence’ has always been

considered as synonymous with ‘domicile’ which imports not only

the intention to reside in a fixed place but also personal presence

in that place, coupled with conduct indicative of such intention.

Domicile denotes a fixed permanent residence to which when

absent for business or pleasure, or for like reasons, one intends to

return. (Perfecto Faypon v. Eliseo Quirino, 96 Phil.

294; Romualdez v. RTC-Tacloban, 226 SCRA 408). In respondent’s

case, when she returned to the Philippines in 1991, the residence

she chose was not Tacloban but San Juan, Metro Manila. Thus,

her animus revertendi is pointed to Metro Manila and not

Tacloban.

This Division is aware that her claim that she has been a

resident of the First District since childhood is nothing more than

to give her a color of qualification where she is otherwise

constitutionally disqualified. It cannot hold ground in the face of

the facts admitted by the respondent in her affidavit. Except for

the time that she studied and worked for some years after

graduation in Tacloban City, she continuously lived in Manila. In

1959, after her husband was elected Senator, she lived and resided

in San Juan, Metro Manila where she was a registered voter. In

1965, she lived in San Miguel, Manila where she was again a

registered voter. In 1978, she served as member of the Batasang

Pambansa as the representative of the City of Manila and later on

served as the Governor of Metro Manila. She could not have served

these positions if she had not been a resident of the City of Manila.

Furthermore, when she filed her certificate of candidacy for the

office of the President in 1992, she claimed to be a resident of San

Juan, Metro Manila. As a matter of fact on August 24, 1994,

respondent wrote a letter with the election officer of San Juan,

Metro Manila requesting for the cancellation of her registration in

the permanent list of voters that she may be re-registered or

transferred to Barangay Olot, Tolosa, Leyte. These facts manifest

that she could not have been a resident of Tacloban City since

childhood up to the time she filed her certificate of candidacy

because she became a resident of many places, including Metro

Manila. This debunks her claim that prior to her residence in

Tolosa, Leyte, she was a resident of the First Legislative District of

Leyte since childhood.

In this case, respondent’s conduct reveals her lack of intention

to make Tacloban her domicile, she registered as a voter in

different places and on several occasions declared that she was a

resident of Manila. Although she spent her school days in

Tacloban, she is considered to have abandoned such place when

she chose to stay and reside in other different places. In the case

of Romualdez v. RTC (226 SCRA 408) the Court explained how one

acquires a new domicile by choice. There must concur: (1)

residence or bodily presence in the new locality; (2) intention to

remain there; and (3) intention to abandon the old domicile. In

other words there must basically be animus manendi with animus

non revertendi. When respondent chose to stay in Ilocos and later

on in Manila, coupled with her intention to stay there by

registering as a voter there and expressly declaring that she is a

resident of that place, she is deemed to have abandoned Tacloban

City, where she spent her childhood and school days, as her place

of domicile.

Pure intention to reside in that place is not sufficient, there

must likewise be conduct indicative of such intention.

Respondent’s statements to the effect that she has always intended

to return to Tacloban, without the accompanying conduct to prove

that intention, is not conclusive of her choice of residence.

Respondent has not presented any evidence to show that her

conduct, one year prior the election, showed intention to reside in

Tacloban. Worse, what was evident was that prior to her residence

in Tolosa, she had been a resident of Manila.

It is evident from these circumstances that she was not a

resident of the First District of Leyte “since childhood.”

To further support the assertion that she could have not been a

resident of the First District of Leyte for more than one year,

petitioner correctly pointed out that on January 28, 1995;

respondent registered as a voter at precinct No. 18-A of Olot,

Tolosa, Leyte. In doing so, she placed in her Voter Registration

Record that she resided in the municipality of Tolosa for a period

29

of six months. This may be inconsequential as argued by the

respondent since it refers only to her residence in Tolosa, Leyte.

But her failure to prove that she was a resident of the First

District of Leyte prior to her residence in Tolosa leaves nothing but

a convincing proof that she had been a resident of the district for

six months only.”15

In a Resolution promulgated a day before the May 8, 1995 elections,

the COMELEC en banc denied petitioner’s Motion for

Reconsideration16 of the April 24, 1995 Resolution declaring her not

qualified to run for the position of Member of the House of

Representatives for the First Legislative District of Leyte.17 The

Resolution tersely stated:

After deliberating on the Motion for Reconsideration, the

Commission RESOLVED to DENY it, no new substantial matters

having been raised therein to warrant re-examination of the

resolution granting the petition for disqualification.18

On May 11, 1995, the COMELEC issued a Resolution allowing

petitioner’s proclamation should the results of the canvass show that

she obtained the highest number of votes in the congressional

elections in the First District of Leyte. On the same day, however, the

COMELEC reversed itself and issued a second Resolution directing

that the proclamation of petitioner be suspended in the event that she

obtains the highest number of votes.19

In a Supplemental Petition dated 25 May, 1995, petitioner averred

that she was the overwhelming winner of the elections for the

congressional seat in the First District of Leyte held May 8, 1995

based on the canvass completed by the Provincial Board of

Canvassers on May 14, 1995. Petitioner alleged that the canvass

showed that she obtained a total of 70,471 votes compared to the

36,833 votes received by Respondent Montejo. A copy of said

Certificate of Canvass was annexed to the Supplemental Petition.

On account of the Resolutions disqualifying petitioner from

running for the congressional seat of the First District of Leyte and

the public respondent’s Resolution suspending her proclamation,

petitioner comes to this court for relief.

Petitioner raises several issues in her Original and Supplemental

Petitions. The principal issues may be classified into two general

areas:

I. The Issue of Petitioner’s qualifications

Whether or not petitioner was a resident, for election purposes, of

the First District of Leyte for a period of one year at the time of the

May 9, 1995 elections.

II. The Jurisdictional Issue

1. a)Prior to the elections

Whether or not the COMELEC properly exercised its

jurisdiction in disqualifying petitioner outside the period

mandated by the Omnibus Election Code for disqualification cases

under Article 78 of the said Code.

1. b)After the Elections

Whether or not the House of Representatives Electoral Tribunal

assumed exclusive jurisdiction over the question of petitioner’s

qualifications after the May 8, 1995 elections.

I. Petitioner’s qualification

A perusal of the Resolution of the COMELEC’s Second Division

reveals a startling confusion in the application of settled concepts of

“Domicile” and “Residence” in election law. While the COMELEC

seems to be in agreement with the general proposition that for the

purposes of election law, residence is synonymous with domicile, the

Resolution reveals a tendency to substitute or mistake the concept of

domicile for actual residence, a conception not intended for the

purpose of determining a candidate’s qualifications for election to the

House of Representatives as required by the 1987 Constitution. As it

were, residence, for the purpose of meeting the qualification for an

elective position, has a settled meaning in our jurisdiction.

Article 50 of the Civil Code decrees that “[f]or the exercise of civil

rights and the fulfillment of civil obligations, the domicile of natural

persons is their place of habitual residence.” In Ong vs. Republic20 this

court took the concept of domicile to mean an individual’s “permanent

home,” “a place to which, whenever absent for business or for

30

pleasure, one intends to return, and depends on facts and

circumstances in the sense that they disclose intent.”21 Based on the

foregoing, domicile includes the twin elements of “the fact of residing

or physical presence in a fixed place” and animus manendi, or the

intention of returning there permanently.

Residence, in its ordinary conception, implies the factual

relationship of an individual to a certain place. It is the physical

presence of a person in a given area, community or country. The

essential distinction between residence and domicile in law is that

residence involves the intent to leave when the purpose for which the

resident has taken up his abode ends. One may seek a place for

purposes such as pleasure, business, or health. If a person’s intent be

to remain, it becomes his domicile; if his intent is to leave as soon as

his purpose is established it is residence.22It is thus, quite perfectly

normal for an individual to have different residences in various

places. However, a person can only have a single domicile, unless, for

various reasons, he successfully abandons his domicile in favor of

another domicile of choice. In Uytengsu vs. Republic, 23 we laid this

distinction quite clearly:

“There is a difference between domicile and residence. ‘Residence

is used to indicate a place of abode, whether permanent or

temporary; ‘domicile’ denotes a fixed permanent residence to

which, when absent, one has the intention of returning. A man

may have a residence in one place and a domicile in another.

Residence is not domicile, but domicile is residence coupled with

the intention to remain for an unlimited time. A man can have but

one domicile for the same purpose at any time, but he may have

numerous places of residence. His place of residence is generally

his place of domicile, but it is not by any means necessarily so

since no length of residence without intention of remaining will

constitute domicile.”

For political purposes the concepts of residence and domicile are

dictated by the peculiar criteria of political laws. As these concepts

have evolved in our election law, what has clearly and unequivocally

emerged is the fact that residence for election purposes is used

synonymously with domicile.

In Nuval vs. Guray, 24 the Court held that “the term residence . . . is

synonymous with domicile which imports not only intention to reside

in a fixed place, but also personal presence in that place, coupled with

conduct indicative of such intention.”25Larena vs. Teves 26 reiterated the

same doctrine in a case involving the qualifications of the respondent

therein to the post of Municipal President of Dumaguete, Negros

Oriental. Faypon vs. Quirino,27 held that the absence from residence to

pursue studies or practice a profession or registration as a voter other

than in the place where one is elected does not constitute loss of

residence.28 So settled is the concept (of domicile) in our election law

that in these and other election law cases, this Court has stated that

the mere absence of an individual from his permanent residence

without the intention to abandon it does not result in a loss or change

of domicile.

The deliberations of the 1987 Constitution on the residence

qualification for certain elective positions have placed beyond doubt

the principle that when the Constitution speaks of “residence” in

election law, it actually means only “domicile” to wit:

Mr. Nolledo: With respect to Section 5, I remember that in the 1971

Constitutional Convention, there was an attempt to require

residence in the place not less than one year immediately

preceding the day of the elections. So my question is: What is the

Committee’s concept of residence of a candidate for the legislature?

Is it actual residence or is it the concept of domicile or constructive

residence?

Mr. Davide: Madame President, insofar as the regular members of the

National Assembly are concerned, the proposed section merely

provides, among others, ‘and a resident thereof’, that is, in the

district for a period of not less than one year preceding the day of

the election. This was in effect lifted from the 1973 Constitution,

the interpretation given to it was domicile.29

x x x

Mrs. Rosario Braid: The next question is on Section 7, page 2. I think

Commissioner Nolledo has raised the same point that “resident”

has been interpreted at times as a matter of intention rather than

actual residence.

Mr. De los Reyes: Domicile

Ms. Rosario Braid: Yes, So, would the gentleman consider at the

proper time to go back to actual residence rather than mere

intention to reside?

Mr. De los Reyes: But we might encounter some

difficulty especially considering that a provision in the Constitution

31

in the Article on Suffrage says that Filipinos living abroad may vote

as enacted by law. So, we have to stick to the original concept that it

should be by domicile and not physical residence.30

In Co vs. Electoral Tribunal of the House of Representatives,31 this

Court concluded that the framers of the 1987 Constitution obviously

adhered to the definition given to the term residence in election law,

regarding it as having the same meaning as domicile.32

In the light of the principles just discussed, has petitioner Imelda

Romualdez Marcos satisfied the residency requirement mandated by

Article VI, Sec. 6 of the 1987 Constitution? Of what significance is the

questioned entry in petitioner’s Certificate of Candidacy stating her

residence in the First Legislative District of Leyte as seven (7)

months?

It is the fact of residence, not a statement in a certificate of

candidacy which ought to be decisive in determining whether or not

an individual has satisfied the constitution’s residency qualification

requirement. The said statement becomes material only when there is

or appears to be a deliberate attempt to mislead, misinform, or hide a

fact which would otherwise render a candidate ineligible. It would be

plainly ridiculous for a candidate to deliberately and knowingly make

a statement in a certificate of candidacy which would lead to his or

her disqualification.

It stands to reason therefore, that petitioner merely committed an

honest mistake in jotting down the word “seven” in the space provided

for the residency qualification requirement. The circumstances

leading to her filing the questioned entry obviously resulted in the

subsequent confusion which prompted petitioner to write down the

period of her actual stay in Tolosa, Leyte instead of her period of

residence in the First District, which was “since childhood” in the

space provided. These circumstances and events are amply detailed in

the COMELEC’s Second Division’s questioned resolution, albeit with

a different interpretation. For instance, when herein petitioner

announced that she would be registering in Tacloban City to make her

eligible to run in the First District, private respondent Montejo

opposed the same, claiming that petitioner was a resident of Tolosa,

not Tacloban City. Petitioner then registered in her place of actual

residence in the First District, which was Tolosa, Leyte, a fact which

she subsequently noted down in her Certificate of Candidacy. A close

look at said certificate would reveal the possible source of the

confusion: the entry for residence (Item No. 7) is followed immediately

by the entry for residence in the constituency where a candidate seeks

election thus:

1. 7.RESIDENCE (complete Address):Brgy. Olot, Tolosa,

Leyte POST OFFICE ADDRESS FOR ELECTION

PURPOSES: Brgy. Olot, Tolosa, Leyte

2. 8.RESIDENCE IN THE CONSTITUENCY WHERE I SEEK

TO BE ELECTED IMMEDIATELY PRECEDING THE

ELECTION:_ _ _ _ _ _ _ Years and Seven Months.

Having been forced by private respondent to register in her place of

actual residence in Leyte instead of petitioner’s claimed domicile, it

appears that petitioner had jotted down her period of stay in her

actual residence in a space which required her period of stay in her

legal residence or domicile. The juxtaposition of entries in Item 7 and

Item 8—the first requiring actual residence and the second requiring

domicile—coupled with the circumstances surrounding petitioner’s

registration as a voter in Tolosa obviously led to her writing down an

unintended entry for which she could be disqualified. This honest

mistake should not, however, be allowed to negate the fact of

residence in the First District if such fact were established by means

more convincing than a mere entry on a piece of paper.

We now proceed to the matter of petitioner’s domicile.

In support of its asseveration that petitioner’s domicile could not

possibly be in the First District of Leyte, the Second Division of the

COMELEC, in its assailed Resolution of April 24, 1995 maintains that

“except for the time when (petitioner) studied and worked for some

years after graduation in Tacloban City, she continuously lived in

Manila.” The Resolution additionally cites certain facts as indicative

of the fact that petitioner’s domicile ought to be any place where she

lived in the last few decades except Tacloban, Leyte. First, according

to the Resolution, petitioner, in 1959, resided in San Juan, Metro

Manila where she was also registered voter. Then, in 1965, following

the election of her husband to the Philippine presidency, she lived in

San Miguel, Manila where she registered as a voter in 1978 and

thereafter, she served as a member of the Batasang Pambansa and

Governor of Metro Manila. “She could not, have served these positions

if she had not been a resident of Metro Manila,” the COMELEC

stressed. Here is where the confusion lies.

32

We have stated, many times in the past, that an individual does

not lose his domicile even if he has lived and maintained residences in

different places. Residence, it bears repeating, implies a factual

relationship to a given place for various purposes. The absence from

legal residence or domicile to pursue a profession, to study or to do

other things of a temporary or semipermanent nature does not

constitute loss of residence. Thus, the assertion by the COMELEC

that “she could not have been a resident of Tacloban City since

childhood up to the time she filed her certificate of candidacy because

she became a resident of many places” flies in the face of settled

jurisprudence in which this Court carefully made distinctions between

(actual) residence and domicile for election law purposes. InLarena vs.

Teves,33 supra, we stressed:

[T]his court is of the opinion and so holds that a person who has

his own house wherein he lives with his family in a municipality

without having ever had the intention of abandoning it, and

without having lived either alone or with his family in another

municipality, has his residence in the former municipality,

notwithstanding his having registered as an elector in the other

municipality in question and having been a candidate for various

insular and provincial positions, stating every time that he is a

resident of the latter municipality.

More significantly, in Faypon vs. Quirino,34we explained that:

A citizen may leave the place of his birth to look for “greener

pastures,” as the saying goes, to improve his lot, and that, of

course includes study in other places, practice of his avocation, or

engaging in business. When an election is to be held, the citizen

who left his birthplace to improve his lot may desire to return to

his native town to cast his ballot but for professional or business

reasons, or for any other reason, he may not absent himself from

his professional or business activities; so there he registers himself

as voter as he has the qualifications to be one and is not willing to

give up or lose the opportunity to choose the officials who are to

run the government especially in national elections. Despite such

registration, the animus revertendi to his home, to his domicile or

residence of origin has not forsaken him. This may be the

explanation why the registration of a voter in a place other than

his residence of origin has not been deemed sufficient to constitute

abandonment or loss of such residence. It finds justification in the

natural desire and longing of every person to return to his place of

birth. This strong feeling of attachment to the place of one’s birth

must be overcome by positive proof of abandonment for another.

From the foregoing, it can be concluded that in its above-cited

statements supporting its proposition that petitioner was ineligible to

run for the position of Representative of the First District of Leyte,

the COMELEC was obviously referring to petitioner’s various places

of (actual) residence, not her domicile. In doing so, it not only ignored

settled jurisprudence on residence in election law and the

deliberations of the constitutional commission but also the provisions

of the Omnibus Election Code (B.P. 881).35

What is undeniable, however, are the following set of facts which

establish the fact of petitioner’s domicile, which we lift verbatim from

the COMELEC’s Second Division’s assailed Resolution:36

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

established her domicile in Tacloban, Leyte (Tacloban City). She

studied in the Holy Infant Academy in Tacloban from 1938 to 1949

when she graduated from high school. She pursued her college

studies in St. Pauls College, now Divine Word University in

Tacloban, where she earned her degree in Education. Thereafter,

she taught in the Leyte Chinese School, still in Tacloban City. In

1952 she went to Manila to work with her cousin, the late speaker

Daniel Z. Romualdez in his office in the House of Representatives.

In 1954, she married ex-President Ferdinand E. Marcos when he

was still a congressman of Ilocos Norte and registered there as a

voter. When her husband was elected Senator of the Republic in

1959, she and her husband lived together in San Juan, Rizal where

she registered as a voter. In 1965, when her husband was elected

President of the Republic of the Philippines, she lived with him in

Malacañang Palace and registered as a voter in San Miguel,

Manila.

[I]n February 1986 (she claimed that) she and her family were

abducted and kidnapped to Honolulu, Hawaii. In November 1991,

she came home to Manila. In 1992, respondent ran for election as

President of the Philippines and filed her Certificate of Candidacy

wherein she indicated that she is a resident and registered voter of

San Juan, Metro Manila.

Applying the principles discussed to the facts found by COMELEC,

what is inescapable is that petitioner held various residences for

different purposes during the past four decades. None of these

33

purposes unequivocally point to an intention to abandon her domicile

of origin in Tacloban, Leyte. Moreover, while petitioner was born in

Manila, as a minor she naturally followed the domicile of her parents.

She grew up in Tacloban, reached her adulthood there and eventually

established residence in different parts of the country for various

reasons. Even during her husband’s presidency, at the height of the

Marcos Regime’s powers, petitioner kept her close ties to her domicile

of origin by establishing residences in Tacloban, celebrating her

birthdays and other important personal milestones in her home

province, instituting well-publicized projects for the benefit of her

province and hometown, and establishing a political power base

where her siblings and close relatives held positions of power either

through the ballot or by appointment, always with either her

influence or consent. These well-publicized ties to her domicile of

origin are part of the history and lore of the quarter century of Marcos

power in our country. Either they were entirely ignored in the

COMELEC’s Resolutions, or the majority of the COMELEC did not

know what the rest of the country always knew: the fact of petitioner’s

domicile in Tacloban, Leyte.

Private respondent in his Comment, contends that Tacloban was

not petitioner’s domicile of origin because she did not live there until

she was eight years old. He avers that after leaving the place in 1952,

she “abandoned her residency (sic) therein for many years and . . .

(could not) re-establish her domicile in said place by merely

expressing her intention to live there again.” We do not agree.

First, a minor follows the domicile of his parents. As domicile, once

acquired is retained until a new one is gained, it follows that in spite

of the fact of petitioner’s being born in Manila, Tacloban, Leyte was

her domicile of origin by operation of law. This domicile was not

established only when she reached the age of eight years old, when

her father brought his family back to Leyte contrary to private

respondent’s averments.

Second, domicile of origin is not easily lost. To successfully effect a

change of domicile, one must demonstrate:37

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

2. 2.A bona fide intention of abandoning the former place of

residence and establishing a new one; and

3. 3.Acts which correspond with the purpose.

In the absence of clear and positive proof based on these criteria, the

residence of origin should be deemed to continue. Only with evidence

showing concurrence of all three requirements can the presumption of

continuity or residence be rebutted, for a change of residence requires

an actual and deliberate abandonment, and one cannot have two legal

residences at the same time.38 In the case at bench, the evidence

adduced by private respondent plainly lacks the degree of

persuasiveness required to convince this court that an abandonment

of domicile of origin in favor of a domicile of choice indeed occurred. To

effect an abandonment requires the voluntary act of relinquishing

petitioner’s former domicile with an intent to supplant the former

domicile with one of her own choosing (domicilium voluntarium ).

In this connection, it cannot be correctly argued that petitioner lost

her domicile of origin by operation of law as a result of her marriage

to the late President Ferdinand E. Marcos in 1952. For there is a

clearly established distinction between the Civil Code concepts of

“domicile” and “residence.”39 The presumption that the wife

automatically gains the husband’s domicile by operation of law upon

marriage cannot be inferred from the use of the term “residence” in

Article 110 of the Civil Code because the Civil Code is one area where

the two concepts are well delineated. Dr. Arturo Tolentino, writing on

this specific area explains:

In the Civil Code, there is an obvious difference between domicile

and residence. Both terms imply relations between a person and a

place; but in residence, the relation is one of fact while in domicile

it is legal or juridical, independent of the necessity of physical

presence.40

Article 110 of the Civil Code provides:

Article 110.—The husband shall fix the residence of the family.

But the court may exempt the wife from living with the husband if

he should live abroad unless in the service of the Republic.

A survey of jurisprudence relating to Article 110 or to the concepts of

domicile or residence as they affect the female spouse upon marriage

yields nothing which would suggest that the female spouse

automatically loses her domicile of origin in favor of the husband’s

choice of residence upon marriage.

Article 110 is a virtual restatement of Article 58 of the Spanish Civil

Code of 1889 which states:

34

La mujer esta obligada a seguir a su marido donde quiera que fije

su residencia. Los Tribunales, sin embargo, podran con justa causa

eximirla de esta obligacion cuando el marido transende su

residencia a ultramar o’ a pais extranjero.

Note the use of the phrase “donde quiera su fije de residencia” in the

aforequoted article, which means wherever (the husband) wishes to

establish residence . This part of the article clearly contemplates only

actual residence because it refers to a positive act of fixing a family

home or residence. Moreover, this interpretation is further

strengthened by the phrase “cuando el marido translade su

residencia” in the same provision which means, “when the

husband shall transferhis residence,” referring to another positive act

of relocating the family to another home or place of actual residence.

The article obviously cannot be understood to refer to domicile which

is a fixed, fairly-permanent concept when it plainly connotes the

possibility of transferring from one place to another not only once, but

as often as the husband may deem fit to move his family, a

circumstance more consistent with the concept of actual residence.

The right of the husband to fix the actual residence is in harmony

with the intention of the law to strengthen and unify the family,

recognizing the fact that the husband and the wife bring into the

marriage different domiciles (of origin). This difference could, for the

sake of family unity, be reconciled only by allowing the husband to fix

a single place of actual residence.

Very significantly, Article 110 of the Civil Code is found under

Title V under the heading: RIGHTS AND OBLIGATIONS BETWEEN

HUSBAND AND WIFE. Immediately preceding Article 110 is Article

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

Article 109. The husband and wife are obligated to live together,

observe mutual respect and fidelity and render mutual help and

support.

The duty to live together can only be fulfilled if the husband and wife

are physically together. This takes into account the situations where

the couple has many residences (as in the case of petitioner). If the

husband has to stay in or transfer to any one of their residences, the

wife should necessarily be with him in order that they may “live

together.” Hence, it is illogical to conclude that Art. 110 refers to

“domicile” and not to “residence.” Otherwise, we shall be faced with a

situation where the wife is left in the domicile while the husband, for

professional or other reasons, stays in one of their (various)

residences. As Dr. Tolentino further explains:

Residence and Domicile.—Whether the word “residence” as used

with reference to particular matters is synonymous with “domicile”

is a question of some difficulty, and the ultimate decision must be

made from a consideration of the purpose and intent with which

the word is used. Sometimes they are used synonymously, at other

times they are distinguished from one another.

x x x

Residence in the civil law is a material fact, referring to the

physical presence of a person in a place. A person can have two or

more residences, such as a country residence and a city residence.

Residence is acquired by living in a place; on the other hand,

domicile can exist without actually living in the place. The

important thing for domicile is that, once residence has been

established in one place, there be an intention to stay there

permanently, even if residence is also established in some other

place.41

In fact, even the matter of a common residence between the

husband and the wife during the marriage is not an iron-clad

principle. In cases applying the Civil Code on the question of a

common matrimonial residence, our jurisprudence has recognized

certain situations42 where the spouses could not be com pelled to live

with each other such that the wife is either allowed to maintain a

residence different from that of her husband or, for obviously practical

reasons, revert to her original domicile (apart from being allowed to

opt for a new one). In De la Vina vs. Villareal43 this Court held that

“[a] married woman may acquire a residence or domicile separate

from that of her husband during the existence of the marriage where

the husband has given cause for divorce.”44 Note that the Court

allowed the wife either to obtain new residence or to choose a new

domicile in such an event. In instances where the wife actually opts,

under the Civil Code, to live separately from her husband either by

taking new residence or reverting to her domicile of origin, the Court

has held that the wife could not be compelled to live with her husband

on pain of contempt. In Arroyo vs. Vasquez de Arroyo 45 the Court held

that:

35

Upon examination of the authorities, we are convinced that it is

not within the province of the courts of this country to attempt to

compel one of the spouses to cohabit with, and render conjugal

rights to, the other. Of course where the property rights of one of

the pair are invaded, an action for restitution of such rights can be

maintained. But we are disinclined to sanction the doctrine that an

order, enforcible (sic) by process of contempt, may be entered to

compel the restitution of the purely personal right of consortium.

At best such an order can be effective for no other purpose than

to compel the spouses to live under the same roof; and he

experience of those countries where the courts of justice have

assumed to compel the cohabitation of married people shows that

the policy of the practice is extremely questionable. Thus in

England, formerly the Ecclesiastical Court entertained suits for

the restitution of conjugal rights at the instance of either husband

or wife; and if the facts were found to warrant it, that court would

make a mandatory decree, enforceable by process of contempt in

case of disobedience, requiring the delinquent party to live with

the other and render conjugal rights. Yet this practice was

sometimes criticized even by the judges who felt bound to enforce

such orders, and in Weldon vs. Weldon (9 P.D. 52), decided in

1883, Sir James Hannen, President in the Probate, Divorce and

Admiralty Division of the High Court of Justice, expressed his

regret that the English law on the subject was not the same as

that which prevailed in Scotland, where a decree of adherence,

equivalent to the decree for the restitution of conjugal rights in

England, could be obtained by the injured spouse, but could not be

enforced by imprisonment. Accordingly, in obedience to the

growing sentiment against the practice, the Matrimonial Causes

Act (1884) abolished the remedy of imprisonment; though a decree

for the restitution of conjugal rights can still be procured, and in

case of disobedience may serve in appropriate cases as the basis of

an order for the periodical payment of a stipend in the character of

alimony.

In the voluminous jurisprudence of the United States, only one

court, so far as we can discover, has ever attempted to make a

preemptory order requiring one of the spouses to live with the

other; and that was in a case where a wife was ordered to follow

and live with her husband, who had changed his domicile to the

City of New Orleans. The decision referred to (Bahn vs. Darby, 36

La. Ann., 70) was based on a provision of the Civil Code of

Louisiana similar to article 56 of the Spanish Civil Code. It was

decided many years ago, and the doctrine evidently has not been

fruitful even in the State of Louisiana. In other states of the

American Union the idea of enforcing cohabitation by process of

contempt is rejected. (21 Cyc., 1148).

In a decision of January 2, 1909, the Supreme Court of Spain

appears to have affirmed an order of the Audiencia Territorial de

Valladolid requiring a wife to return to the marital domicile, and

in the alternative, upon her failure to do so, to make a particular

disposition of certain money and effects then in her possession and

to deliver to her husband, as administrator of the ganancial

property, all income, rents, and interest which might accrue to her

from the property which she had brought to the marriage. (113

Jur. Civ., pp. 1, 11). But it does not appear that this order for the

return of the wife to the marital domicile was sanctioned by any

other penalty than the consequences that would be visited upon

her in respect to the use and control of her property; and it does

not appear that her disobedience to that order would necessarily

have been followed by imprisonment for contempt.

Parenthetically when Petitioner was married to then Congressman

Marcos, in 1954, petitioner was obliged—by virtue of Article 110 of

the Civil Code—to follow her husband’s actual place of residence fixed

by him. The problem here is that at that time, Mr. Marcos had several

places of residence, among which were San Juan, Rizal and Batac,

Ilocos Norte. There is no showing which of these places Mr. Marcos

did fix, as his family’s residence. But assuming that Mr. Marcos had

fixed any of these places as the conjugal residence, what petitioner

gained upon marriage was actual residence. She did not lose her

domicile of origin.

On the other hand, the common law concept of “matrimonial

domicile” appears to have been incorporated, as a result of our

jurisprudential experiences after the drafting of the Civil Code of

1950, into the New Family Code. To underscore the difference

between the intentions of the Civil Code and the Family Code

36

drafters, the term residence has been supplanted by the term domicile

in an entirely new provision (Art. 69) distinctly different in meaning

and spirit from that found in Article 110. The provision recognizes

revolutionary changes in the concept of women’s rights in the

intervening years by making the choice of domicile a product of

mutual agreement between the spouses.46

Without as much belaboring the point, the term residence may

mean one thing in civil law (or under the Civil Code) and quite

another thing in political law. What stands clear is that insofar as the

Civil Code is concerned—affecting the rights and obligations of

husband and wife—the term residence should only be interpreted to

mean “actual residence.” The inescapable conclusion derived from this

unambiguous civil law delineation therefore, is that when petitioner

married the former President in 1954, she kept her domicile of origin

and merely gained a new home, not a domicilium necessarium .

Even assuming for the sake of argument that petitioner gained a

new “domicile” after her marriage and only acquired a right to choose

a new one after her husband died, petitioner’s acts following her

return to the country clearly indicate that she not only impliedly but

expressly chose her domicile of origin (assuming this was lost by

operation of law) as her domicile. This “choice” was unequivocally

expressed in her letters to the Chairman of the PCGG when petitioner

sought the PCGG’s permission to “rehabilitate (our) ancestral house

in Tacloban and Farm in Olot, Leyte . . . to make them livable for the

Marcos family to have a home in our homeland.”47 Furthermore,

petitioner obtained her residence certificate in 1992 in Tacloban,

Leyte, while living in her brother’s house, an act which supports the

domiciliary intention clearly manifested in her letters to the PCGG

Chairman. She could not have gone straight to her home in San Juan,

as it was in a state of disrepair, having been previously looted by

vandals. Her “homes” and “residences” following her arrival in various

parts of Metro Manila merely qualified as temporary or “actual

residences,” not domicile. Moreover, and proceeding from our

discussion pointing out specific situations where the female spouse

either reverts to her domicile of origin or chooses a new one during the

subsistence of the marriage, it would be highly illogical for us to

assume that she cannot regain her original domicile upon the death of

her husband absent a positive act of selecting a new one where

situations exist within the subsistence of the marriage itself where

the wife gains a domicile different from her husband.

In the light of all the principles relating to residence and domicile

enunciated by this court up to this point, we are persuaded that the

facts established by the parties weigh heavily in favor of a conclusion

supporting petitioner’s claim of legal residence or domicile in the First

District of Leyte.

II. The jurisdictional issue

Petitioner alleges that the jurisdiction of the COMELEC had already

lapsed considering that the assailed resolutions were rendered on

April 24, 1995, fourteen (14) days before the election in violation of

Section 78 of the Omnibus Election Code.48Moreover, petitioner

contends that it is the House of Representatives Electoral Tribunal

and not the COMELEC which has jurisdiction over the election of

members of the House of Representatives in accordance with Article

VI, Sec. 17 of the Constitution. This is untenable.

It is a settled doctrine that a statute requiring rendition of

judgment within a specified time is generally construed to be merely

directory,49 “so that non-compliance with them does not invalidate the

judgment on the theory that if the statute had intended such result it

would have clearly indicated it.”50 The difference between a mandatory

and a directory provision is often made on grounds of necessity.

Adopting the same view held by several American authorities, this

court inMarcelino v. Cruz held that:51

The difference between a mandatory and directory provision is

often determined on grounds of expediency, the reason being that

less injury results to the general public by disregarding than

enforcing the letter of the law.

In Trapp v. Mc Cormick, a case calling for the

interpretation of a statute containing a limitation of thirty (30)

days within which a decree may be entered without the consent of

counsel, it was held that ‘the statutory provisions which may be

thus departed from with impunity, without affecting the validity of

statutory proceedings, are usually those which relate to the mode

or time of doing that which is essential to effect the aim and

purpose of the Legislature or some incident of the essential act.’

37

Thus, in said case, the statute under examination was construed

merely to be directory.

The mischief in petitioner’s contending that the COMELEC should

have abstained from rendering a decision after the period stated in

the Omnibus Election Code because it lacked jurisdiction, lies in the

fact that our courts and other quasi-judicial bodies would then refuse

to render judgments merely on the ground of having failed to reach a

decision within a given or prescribed period.

In any event, with the enactment of Sections 6 and 7 of R.A. 6646

in relation to Section 78 of B.P. 881,52 it is evident that the respondent

Commission does not lose jurisdiction to hear and decide a pending

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

elections.

As to the House of Representatives Electoral Tribunal’s supposed

assumption of jurisdiction over the issue of petitioner’s qualifications

after the May 8, 1995 elections, suffice it to say that HRET’s

jurisdiction as the sole judge of all contests relating to the elections,

returns and qualifications of members of Congress begins only after a

candidate has become a member of the House of

Representatives.53 Petitioner not being a member of the House of

Representatives, it is obvious that the HRET at this point has no

jurisdiction over the question.

It would be an abdication of many of the ideals enshrined in the

1987 Constitution for us to either to ignore or deliberately make

distinctions in law solely on the basis of the personality of a petitioner

in a case. Obviously a distinction was made on such a ground here.

Surely, many established principles of law, even of election laws were

flouted for the sake of perpetuating power during the pre-EDSA

regime. We renege on these sacred ideals, including the meaning and

spirit of EDSA by ourselves bending established principles of law to

deny an individual what he or she justly deserves in law. Moreover, in

doing so, we condemn ourselves to repeat the mistakes of the past.

WHEREFORE, having determined that petitioner possesses the

necessary residence qualifications to run for a seat in the House of

Representatives in the First District of Leyte, the COMELEC’s

questioned Resolutions dated April 24, May 7, May 11, and May 25,

1995 are hereby SET ASIDE. Respondent COMELEC is hereby

directed to order the Provincial Board of Canvassers to proclaim

petitioner as the duly elected Representative of the First District of

Leyte.

SO ORDERED.

Narvasa (C.J.), I join Justice Mendoza in his separate opinion

and, for the reasons therein stated, vote to grant the petition.

Feliciano, J., On official leave.

Padilla, J., See dissenting opinion.

Regalado, J., See dissenting opinion.

Davide, Jr., J., I respectfully dissent. Please see dissenting

opinion.

Romero, J., Please see separate opinion.

Bellosillo, J., I join Justice Puno in his concurring opinion.

Melo, J., I join Justice Puno in his separate concurring

opinion.

Puno, J., Please see Concurring Opinion.

Vitug, J., Please see separate opinion.

Mendoza, J., See separate opinion.

Francisco, J., See concurring opinion.

Hermosisima, Jr., J., I join Justice Padilla’s dissent.

38

G.R. No. 135083. May 26, 1999.*

ERNESTO S. MERCADO, petitioner, vs.EDUARDO BARRIOS

MANZANO and theCOMMISSION ON ELECTIONS, respondents.

Remedial Law; Election Law; Parties;Certainly, petitioner had, and still

has, an interest in ousting private respondent from the race at the time he

sought to intervene; The rule in Labo v. COMELEC, reiterated in several

cases, only applies to cases in which the election of the respondent is contested,

and the question is whether one who placed second to the disqualified

candidate may be declared the winner.—Private respondent argues that

petitioner has neither legal interest in the matter in litigation nor an interest

to protect because he is “a defeated candidate for the vice-mayoralty post of

Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City

even if the private respondent be ultimately disqualified by final and

executory judgment.” The flaw in this argument is it assumes that, at the

time petitioner sought to intervene in the proceedings before the COMELEC,

there had already been a proclamation of the results of the election for the

vice mayoralty contest for Makati City, on the basis of which petitioner came

out only second to private respondent. The fact, however, is that there had

been no proclamation at that time. Certainly, petitioner had, and still has, an

interest in ousting private respondent from the race at the time he sought to

intervene.

The rule in Labo v. COMELEC,reiterated in several cases,only applies

to cases in which the election of the respondent is contested, and the question

is whether one who placed second to the disqualified candidate may be

declared the winner. In the present case, at the time petitioner filed a

“Motion for Leave to File Intervention” on May 20, 1998, there had been no

proclamation of the winner, and petitioner’s purpose was precisely to have

private respondent disqualified “from running for [an] elective local position”

under §40(d) of R.A. No. 7160. If Ernesto Mamaril (who originally instituted

the disqualification proceedings), a registered voter of Makati City, was

competent to bring the action, so was petitioner since the latter was a rival

candidate for vice mayor of Makati City.

Same; Same; Same; That petitioner had a right to intervene at that stage

of the proceedings for the disqualification against private respondent is clear

from §6 of Republic Act No. 6646, otherwise known as the Electoral Reforms

Law of 1987.—Nor is petitioner’s interest in the matter in litigation any less

because he filed a motion for intervention only on May 20, 1998, after private

respondent had been shown to have garnered the highest number of votes

among the candidates for vice mayor. That petitioner had a right to intervene

at that stage of the proceedings for the disqualification against private

respondent is clear from §6 of R.A. No. 6646, otherwise known as the

Electoral Reforms Lawof 1987.

Same; Same; Same; Intervention may be allowed in proceedings for

disqualification even after election if there has yet been no final judgment

rendered.—Intervention may be allowed in proceedings for disqualification

even after election if there has yet been no final judgment rendered.

Same; Same; Same; Failure of the COMELEC en banc to resolve

petitioner’s motion for intervention was tantamount to a denial of the motion,

justifying petitioner in filing the instant petition for certiorari.—The failure of

the COMELEC enbanc to resolve petitioner’s motion for intervention was

tantamount to a denial of the motion, justifying petitioner in filing the

instant petition for certiorari. As the COMELEC enbanc instead decided the

merits of the case, the present petition properly deals not only with the denial

of petitioner’s motion for intervention but also with the substantive issues

respecting private respondent’s alleged disqualification on the ground of dual

citizenship.

Constitutional Law; Citizenship; Dual citizenship is different from dual

allegiance.—Dual citizenship is different from dual allegiance. The former

arises when, as a result of the concurrent application of the different laws of

two or more states, a person is simultaneously considered a national by the

said states.For instance, such a situation may arise when a person whose

parents are citizens of a state which adheres to the principle of jus

sanguinis is born in a state which follows the doctrine of jus soli. Such a

person, ipso factoand without any voluntary act on his part, is concurrently

considered a citizen of both states.

Same; Same; Instances where it is possible for certain classes of citizens

of the Philippines to possess dual citizenship.—Considering the

citizenshipclause (Art. IV) of our Constitution, it is possible for the following

classes of citizens of the Philippines to possess dual citizenship: (1) Those

born of Filipino fathers and/or mothers in foreign countries which follow the

principle of jus soli; (2) Those born in the Philippines of Filipino mothers and

alien fathers if by the laws of their fathers’ country such children are citizens

of that country; (3) Those who marry aliens if by the laws of the latter’s

country the former are considered citizens, unless by their act or omission

they are deemed to have renounced Philippine citizenship. Dual allegiance,

on the other hand, refers to the situation in which a person simultaneously

owes, by some positive act, loyalty to two or more states. While dual

39

citizenship is involuntary, dual allegiance is the result of an individual’s

volition.

Same; Same; The phrase “dual citizenship” in Republic Act No. 7160,

§40(d) and in Republic Act No. 7854, §20 must be understood as referring to

“dual allegiance.”—In including §5 in Article IV on citizenship, the concern of

the Constitutional Commission was not with dual citizens per se but with

naturalized citizens who maintain their allegiance to their countries of origin

even after their naturalization. Hence, the phrase “dual citizenship” in R.A.

No. 7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring to

“dual allegiance.” Consequently, persons with mere dual citizenship do not

fall under this disqualification. Unlike those with dual allegiance, who must,

therefore, be subject to strict process with respect to the termination of their

status, for candidates with dual citizenship, it should suffice if, upon the

filing of their certificates of candidacy, they elect Philippine citizenship to

terminate their status as person with dual citizenship considering that their

condition is the unavoidable consequence of conflicting laws of different

states.

SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.

The facts are stated in the opinion of the Court.

Balane, Tamase, Alampay Law Office for petitioner.

Siguion Reyna, Montecillo & Ongsiako for private respondent.

Raul A. Daza collaborating counsel for private respondent.

MENDOZA, J.:

Petitioner Ernesto S. Mercado and private respondent Eduardo B.

Manzano were candidates for vice mayor of the City of Makati in the

May 11, 1998 elections. The other one was Gabriel V. Daza III. The

results of the election were as follows:

Eduardo B. Manzano 103,853

Ernesto S. Mercado 100,894

Gabriel V. Daza III 54,2751 The proclamation of private respondent was suspended in view of a

pending petition for disqualification filed by a certain Ernesto

Mamaril who alleged that private respondent was not a citizen of the

Philippines but of the United States.

In its resolution, dated May 7, 1998,2the Second Division of the

COMELEC granted the petition of Mamaril and ordered the

cancellation of the certificate of candidacy of private respondent on

the ground that he is a dual citizen and, under §40(d) of the Local

Government Code, persons with dual citizenship are disqualified from

running for any elective position. The COMELEC’s Second Division

said:

What is presented before the Commission is a petition for disqualification of

Eduardo Barrios Manzano as candidate for the office of Vice-Mayor of Makati

City in the May 11, 1998 elections. The petition is based on the ground that

the respondent is an American citizen based on the record of the Bureau of

Immigration and misrepresented himself as a natural-born Filipino citizen.

In his answer to the petition filed on April 27, 1998, the respondent

admitted that he is registered as a foreigner with the Bureau of Immigration

under Alien Certificate of Registration No. B-31632 and alleged that he is a

Filipino citizen because he was born in 1955 of a Filipino father and a

Filipino mother. He was born in the United States, San Francisco, California,

on September 14, 1955, and is considered an American citizen under US

Laws. But notwithstanding his registration as an American citizen, he did

not lose his Filipino citizenship.

Judging from the foregoing facts, it would appear that respondent

Manzano is both a Filipino and a US citizen. In other words, he holds dual

citizenship.

The question presented is whether under our laws, he is disqualified from

the position for which he filed his certificate of candidacy. Is he eligible for

the office he seeks to be elected?

Under Section 40(d) of the Local Government Code, those holding dual

citizenship are disqualified from running for any elective local position.

WHEREFORE, the Commission hereby declares the respondent Eduardo

Barrios Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati

City.

On May 8, 1998, private respondent filed a motion for

reconsideration.3The motion remained pending even until after the

election held on May 11, 1998.

Accordingly, pursuant to Omnibus Resolution No. 3044, dated May

10, 1998, of the COMELEC, the board of canvassers tabulated the

votes cast for vice mayor of Makati City but suspended the

proclamation of the winner.

On May 19, 1998, petitioner sought to intervene in the case for

disqualification.4Petitioner’s motion was opposed by private

respondent.

40

The motion was not resolved. Instead, on August 31, 1998, the

COMELEC enbancrendered its resolution. Voting 4 to 1, with one

commissioner abstaining, the COMELEC enbanc reversed the ruling

of its Second Division and declared private respondent qualified to

run for vice mayor of the City of Makati in the May 11, 1998

elections.5The pertinent portions of the resolution of the

COMELEC enbanc read:

As aforesaid, respondent Eduardo Barrios Manzano was born in San

Francisco, California, U.S.A. He acquired US citizenship by operation of the

United States Constitution and laws under the principle of jussoli.

He was also a natural born Filipino citizen by operation of the 1935

Philippine Constitution, as his father and mother were Filipinos at the time

of his birth. At the age of six (6), his parents brought him to the Philippines

using an American passport as travel document. His parents also registered

him as an alien with the Philippine Bureau of Immigration. He was issued an

alien certificate of registration. This, however, did not result in the loss of his

Philippine citizenship, as he did not renounce Philippine citizenship and did

not take an oath of allegiance to the United States.

It is an undisputed fact that when respondent attained the age of

majority, he registered himself as a voter, and voted in the elections of 1992,

1995 and 1998, which effectively renounced his US citizenship under

American law. Under Philippine law, he no longer had U.S. citizenship.

At the time of the May 11, 1998 elections, the resolution of the Second

Division, adopted on May 7, 1998, was not yet final. Respondent Manzano

obtained the highest number of votes among the candidates for vice-mayor of

Makati City, garnering one hundred three thousand eight hundred fifty three

(103,853) votes over his closest rival, Ernesto S. Mercado, who obtained one

hundred thousand eight hundred ninety four (100,894) votes, or a margin of

two thousand nine hundred fifty nine (2,959) votes. Gabriel Daza III obtained

third place with fifty four thousand two hundred seventy five (54,275) votes.

In applying election laws, it would be far better to err in favor of the popular

choice than be embroiled in complex legal issues involving private

international law which may well be settled before the highest court (Cf.

Frivaldo vs. Commission on Elections, 257 SCRA 727).

WHEREFORE, the Commission enbanchereby REVERSES the resolution

of the Second Division, adopted on May 7, 1998, ordering the cancellation of

the respondent’s certificate of candidacy.

We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED

as a candidate for the position of vice-mayor of Makati City in the May 11,

1998, elections.

ACCORDINGLY, the Commission directs the Makati City Board of

Canvassers, upon proper notice to the parties, to reconvene and proclaim the

respondent Eduardo Luis Barrios Manzano as the winning candidate for vice-

mayor of Makati City.

Pursuant to the resolution of the COMELEC enbanc, the board of

canvassers, on the evening of August 31, 1998, proclaimed private

respondent as vice mayor of the City of Makati.

This is a petition for certiorari seeking to set aside the aforesaid

resolution of the COMELEC enbanc and to declare private respondent

disqualified to hold the office of vice mayor of Makati City. Petitioner

contends that—

[T]he COMELEC enbanc ERRED in holding that:

1. A.Under Philippine law, Manzano was no longer a U.S. citizen when

he:

1. 1.He renounced his U.S. citizenship when he attained the age of

majority when he was already 37 years old; and,

2. 2.He renounced his U.S. citizenship when he (merely) registered

himself as a voter and voted in the elections of 1992, 1995 and 1998.

1. B.Manzano is qualified to run for and or hold the elective office of

Vice-Mayor of the City of Makati;

2. C.At the time of the May 11, 1998 elections, the resolution of the

Second Division adopted on 7 May 1998 was not yet final so that,

effectively, petitioner may not be declared the winner even

assuming that Manzano is disqualified to run for and hold the

elective office of Vice-Mayor of the City of Makati.

We first consider the threshold procedural issue raised by private

respondent Manzano—whether petitioner Mercado has personality to

bring this suit considering that he was not an original party in the

case for disqualification filed by Ernesto Mamaril nor was petitioner’s

motion for leave to intervene granted.

I. PETITIONER’S RIGHT TO BRING THIS SUIT

Private respondent cites the following provisions of Rule 8 of the

Rules of Procedure of the COMELEC in support of his claim that

petitioner has no right to intervene and, therefore, cannot bring this

suit to set aside the ruling denying his motion for intervention:

41

SECTION 1. Whenproper and when may be permitted to intervene.—Any

person allowed to initiate an action or proceeding may, before or during the

trial of an action or proceeding, be permitted by the Commission, in its

discretion to intervene in such action or proceeding, if he has legal interest in

the matter in litigation, or in the success of either of the parties, or an

interest against both, or when he is so situated as to be adversely affected by

such action or proceeding.

. . . .

SECTION 3. Discretion of Commission.—In allowing or disallowing a

motion for intervention, the Commission or the Division, in the exercise of its

discretion, shall consider whether or not the intervention will unduly delay or

prejudice the adjudication of the rights of the original parties and whether or

not the intervenor’s rights may be fully protected in a separate action or

proceeding.

Private respondent argues that petitioner has neither legal

interest in the matter in litigation nor an interest to protect because

he is “a defeated candidate for the vice-mayoralty post of Makati City

[who] cannot be proclaimed as the Vice-Mayor of Makati City even if

the private respondent be ultimately disqualified by final and

executory judgment.”

The flaw in this argument is it assumes that, at the time petitioner

sought to intervene in the proceedings before the COMELEC, there

had already been a proclamation of the results of the election for the

vice mayoralty contest for Makati City, on the basis of which

petitioner came out only second to private respondent. The fact,

however, is that there had been no proclamation at that time.

Certainly, petitioner had, and still has, an interest in ousting private

respondent from the race at the time he sought to intervene. The rule

in Labo v. COMELEC,6reiterated in several cases,7only applies to

cases in which the election of the respondent is contested, and the

question is whether one who placed second to the disqualified

candidate may be declared the winner. In the present case, at the

time petitioner filed a “Motion for Leave to File Intervention” on May

20, 1998, there had been no proclamation of the winner, and

petitioner’s purpose was precisely to have private respondent

disqualified “from running for [an] elective local position” under

§40(d) of R.A. No. 7160. If Ernesto Mamaril (who originally instituted

the disqualification proceedings), a registered voter of Makati City,

was competent to bring the action, so was petitioner since the latter

was a rival candidate for vice mayor of Makati City.

Nor is petitioner’s interest in the matter in litigation any less

because he filed a motion for intervention only on May 20, 1998, after

private respondent had been shown to have garnered the highest

number of votes among the candidates for vice mayor. That petitioner

had a right to intervene at that stage of the proceedings for the

disqualification against private respondent is clear from §6 of R.A. No.

6646, otherwise known as the Electoral Reforms Lawof 1987, which

provides:

Any candidate who has been declared by final judgment to be disqualified

shall not be voted for, and the votes cast for him shall not be counted. If for

any reason a candidate is not declared by final judgment before an election to

be disqualified and he is voted for and receives the winning number of votes

in such election, the Court or Commission shall continue with the trial and

hearing of the action, inquiry, or protest and, upon motion of the complainant

or any intervenor, may during the pendency thereof order the suspension of

the proclamation of such candidate whenever the evidence of guilt is strong.

Under this provision, intervention may be allowed in proceedings for

disqualification even after election if there has yet been no final

judgment rendered.

The failure of the COMELEC enbanc to resolve petitioner’s motion

for intervention was tantamount to a denial of the motion, justifying

petitioner in filing the instant petition for certiorari. As the

COMELECen banc instead decided the merits of the case, the present

petition properly deals not only with the denial of petitioner’s motion

for intervention but also with the substantive issues respecting

private respondent’s alleged disqualification on the ground of dual

citizenship.

This brings us to the next question, namely, whether private

respondent Manzano possesses dual citizenship and, if so, whether he

is disqualified from being a candidate for vice mayor of Makati City.

II. DUAL CITIZENSHIP AS A GROUND FOR

DISQUALIFICATION

The disqualification of private respondent Manzano is being sought

under §40 of the Local Government Code of 1991 (R.A. No. 7160),

which declares as “disqualified from running for any elective local

42

position: . . . (d) Those with dual citizenship.” This provision is

incorporated in the Charter of the City of Makati.8

Invoking the maxim dura lex sed lex,petitioner, as well as the

Solicitor General, who sides with him in this case, contends that

through §40(d) of the Local Government Code, Congress has

“command[ed] in explicit terms the ineligibility of persons possessing

dual allegiance to hold local elective office.”

To begin with, dual citizenship is different from dual allegiance.

The former arises when, as a result of the concurrent application of

the different laws of two or more states, a person is simultaneously

considered a national by the said states.9For instance, such a situation

may arise when a person whose parents are citizens of a state which

adheres to the principle of jus sanguinis is born in a state which

follows the doctrine of jus soli. Such a person, ipso facto and without

any voluntary act on his part, is concurrently considered a citizen of

both states. Considering the citizenshipclause (Art. IV) of our

Constitution, it is possible for the following classes of citizens of the

Philippines to possess dual citizenship:

1. (1)Those born of Filipino fathers and/or mothers in foreign

countries which follow the principle of jus soli;

2. (2)Those born in the Philippines of Filipino mothers and alien

fathers if by the laws of their fathers’ country such children

are citizens of that country;

3. (3)Those who marry aliens if by the laws of the latter’s country

the former are considered citizens, unless by their act or

omission they are deemed to have renounced Philippine

citizenship.

There may be other situations in which a citizen of the Philippines

may, without performing any act, be also a citizen of another state;

but the above cases are clearly possible given the constitutional

provisions on citizenship.

Dual allegiance, on the other hand, refers to the situation in which

a person simultaneously owes, by some positive act, loyalty to two or

more states. While dual citizenship is involuntary, dual allegiance is

the result of an individual’s volition.

With respect to dual allegiance, Article IV, §5 of the Constitution

provides: “Dual allegiance of citizens is inimical to the national

interest and shall be dealt with by law.” This provision was included

in the 1987 Constitution at the instance of Commissioner Blas F. Ople

who explained its necessity as follows:10

. . .I want to draw attention to the fact that dual allegiance is not dual

citizenship. I have circulated a memorandum to the Bernas Committee

according to which a dual allegiance—and I reiterate a dual allegiance—is

larger and more threatening than that of mere double citizenship which is

seldom intentional and, perhaps, never insidious. That is often a function of

the accident of mixed marriages or of birth on foreign soil. And so, I do not

question double citizenship at all.

What we would like the Committee to consider is to take constitutional

cognizance of the problem of dual allegiance. For example, we all know what

happens in the triennial elections of the Federation of Filipino-Chinese

Chambers of Commerce which consists of about 600 chapters all over the

country. There is a Peking ticket, as well as a Taipei ticket. Not widely

known is the fact that the Filipino-Chinese community is represented in the

Legislative Yuan of the Republic of China in Taiwan. And until recently, the

sponsor might recall, in Mainland China in the People’s Republic of China,

they have the Associated Legislative Council for overseas Chinese wherein all

of Southeast Asia including some European and Latin countries were

represented, which was dissolved after several years because of diplomatic

friction. At that time, the Filipino-Chinese were also represented in that

Overseas Council.

When I speak of double allegiance, therefore, I speak of this unsettled

kind of allegiance of Filipinos, of citizens who are already Filipinos but who,

by their acts, may be said to be bound by a second allegiance, either to Peking

or Taiwan. I also took close note of the concern expressed by some

Commissioners yesterday, including Commissioner Villacorta, who were

concerned about the lack of guarantees of thorough assimilation, and

especially Commissioner Concepcion who has always been worried about

minority claims on our natural resources.

Dual allegiance can actually siphon scarce national capital to Taiwan,

Singapore, China or Malaysia, and this is already happening. Some of the

great commercial places in downtown Taipei are Filipino-owned, owned by

Filipino-Chinese—it is of common knowledge in Manila. It can mean a tragic

capital outflow when we have to endure a capital famine which also means

economic stagnation, worsening unemployment and social unrest.

43

And so, this is exactly what we ask—that the Committee kindly consider

incorporating a new section, probably Section 5, in the article on Citizenship

which will read as follows: DUAL ALLEGIANCE IS INIMICAL TO

CITIZENSHIP AND SHALL BE DEALT WITH ACCORDING TO LAW.

In another session of the Commission, Ople spoke on the problem of

these citizens with dual allegiance, thus:11

. . . A significant number of Commissioners expressed their concern about

dual citizenship in the sense that it implies a double allegiance under a

double sovereignty which some of us who spoke then in a freewheeling debate

thought would be repugnant to the sovereignty which pervades the

Constitution and to citizenship itself which implies a uniqueness and which

elsewhere in the Constitution is defined in terms of rights and obligations

exclusive to that citizenship including, of course, the obligation to rise to the

defense of the State when it is threatened, and back of this, Commissioner

Bernas, is, of course, the concern for national security. In the course of those

debates, I think some noted the fact that as a result of the wave of

naturalizations since the decision to establish diplomatic relations with the

People’s Republic of China was made in 1975, a good number of these

naturalized Filipinos still routinely go to Taipei every October 10; and it is

asserted that some of them do renew their oath of allegiance to a foreign

government maybe just to enter into the spirit of the occasion when the

anniversary of the Sun Yat-Sen Republic is commemorated. And so, I have

detected a genuine and deep concern about double citizenship, with its

attendant risk of double allegiance which is repugnant to our sovereignty and

national security. I appreciate what the Committee said that this could be

left to the determination of a future legislature. But considering the scale of

the problem, the real impact on the security of this country, arising from, let

us say, potentially great numbers of double citizens professing double

allegiance, will the Committee entertain a proposed amendment at the

proper time that will prohibit, in effect, or regulate double citizenship?

Clearly, in including §5 in Article IV on citizenship, the concern of the

Constitutional Commission was not with dual citizens per se but with

naturalized citizens who maintain their allegiance to their countries

of origin even after their naturalization. Hence, the phrase “dual

citizenship” in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must

be understood as referring to “dual allegiance.” Consequently, persons

with mere dual citizenship do not fall under this disqualification.

Unlike those with dual allegiance, who must, therefore, be subject

to strict process with respect to the termination of their status, for

candidates with dual citizenship, it should suffice if, upon the filing of

their certificates of candidacy, they elect Philippine citizenship to

terminate their status as persons with dual citizenship considering

that their condition is the unavoidable consequence of conflicting laws

of different states. As Joaquin G. Bernas, one of the most perceptive

members of the Constitutional Commission, pointed out: “[D]ual

citizenship is just a reality imposed on us because we have no control

of the laws on citizenship of other countries. We recognize a child of a

Filipino mother. But whether or not she is considered a citizen of

another country is something completely beyond our control.”12

By electing Philippine citizenship, such candidates at the same

time forswear allegiance to the other country of which they are also

citizens and thereby terminate their status as dual citizens. It may be

that, from the point of view of the foreign state and of its laws, such

an individual has not effectively renounced his foreign citizenship.

That is of no moment as the following discussion on §40(d) between

Senators Enrile and Pimentel clearly shows:13

SENATOR ENRILE. Mr. President, I would like to ask clarification of

line 41, page 17: “Any person with dual citizenship” is disqualified

to run for any elective local position. Under the present

Constitution, Mr. President, someone whose mother is a citizen of

the Philippines but his father is a foreigner is a natural-born

citizen of the Republic. There is no requirement that such a

natural born citizen, upon reaching the age of majority, must elect

or give up Philippine citizenship.

On the assumption that this person would carry two passports, one

belonging to the country of his or her father and one belonging to the

Republic of the Philippines, may such a situation disqualify the

person to run for a local government position?

SENATOR PIMENTEL. To my mind, Mr. President, it only means

that at the moment when he would want to run for public office, he

has to repudiate one of his citizenships.

SENATOR ENRILE. Suppose he carries only a Philippine passport

but the country of origin or the country of the father claims that

person, nevertheless, as a citizen? No one can renounce. There are

such countries in the world.

SENATOR PIMENTEL. Well, the very fact that he is running for

public office would, in effect, be an election for him of his desire to

be considered as a Filipino citizen.

44

SENATOR ENRILE. But, precisely, Mr. President, the Constitution

does not require an election. Under the Constitution, a person

whose mother is a citizen of the Philippines is, at birth, a citizen

without any overt act to claim the citizenship.

SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is:

Under the Gentleman’s example, if he does not renounce his other

citizenship, then he is opening himself to question. So, if he is

really interested to run, the first thing he should do is to say in the

Certificate of Candidacy that: “I am a Filipino citizen, and I have

only one citizenship.”

SENATOR ENRILE. But we are talking from the viewpoint of

Philippine law, Mr. President. He will always have one citizenship,

and that is the citizenship invested upon him or her in the

Constitution of the Republic.

SENATOR PIMENTEL. That is true, Mr. President. But if he

exercises acts that will prove that he also acknowledges other

citizenships, then he will probably fall under this disqualification.

This is similar to the requirement that an applicant for

naturalization must renounce “all allegiance and fidelity to any

foreign prince, potentate, state, or sovereignty”14 of which at the time

he is a subject or citizen before he can be issued a certificate of

naturalization as a citizen of the Philippines. In Parado v. Republic,15it

was held:

[W]hen a person applying for citizenship by naturalization takes an oath

that he renounces his loyalty to any other country or government and

solemnly declares that he owes his allegiance to the Republic of the

Philippines, the condition imposed by law is satisfied and complied with. The

determination whether such renunciation is valid or fully complies with the

provisions of our Naturalization Law lies within the province and is an

exclusive prerogative of our courts. The latter should apply the law duly

enacted by the legislative department of the Republic. No foreign law may or

should interfere with its operation and application. If the requirement of the

Chinese Law of Nationality were to be read into our Naturalization Law, we

would be applying not what our legislative department has deemed it wise to

require, but what a foreign government has thought or intended to exact.

That, of course, is absurd. It must be resisted by all means and at all cost. It

would be a brazen encroachment upon the sovereign will and power of the

people of this Republic.

III. PETITIONER’S ELECTION OF PHILIPPINE

CITIZENSHIP

The record shows that private respondent was born in San Francisco,

California on September 4, 1955, of Filipino parents. Since the

Philippines adheres to the principle of jus sanguinis,while the United

States follows the doctrine of jus soli, the parties agree that, at birth

at least, he was a national both of the Philippines and of the United

States. However, the COMELEC enbanc held that, by participating in

Philippine elections in 1992, 1995, and 1998, private respondent

“effectively renounced his U.S. citizenship under American law,” so

that now he is solely a Philippine national.

Petitioner challenges this ruling. He argues that merely taking

part in Philippine elections is not sufficient evidence of renunciation

and that, in any event, as the alleged renunciation was made when

private respondent was already 37 years old, it was ineffective as it

should have been made when he reached the age of majority.

In holding that by voting in Philippine elections private

respondent renounced his American citizenship, the COMELEC must

have in mind §349 of the Immigration and Nationality Act of the

United States, which provided that “A person who is a national of the

United States, whether by birth or naturalization, shall lose his

nationality by: . . .(e) Voting in a political election in a foreign state or

participating in an election or plebiscite to determine the sovereignty

over foreign territory.” To be sure this provision was declared

unconstitutional by the U.S. Supreme Court in Afroyim v.Rusk16as

beyond the power given to the U.S. Congress to regulate foreign

relations. However, by filing a certificate of candidacy when he ran for

his present post, private respondent elected Philippine citizenship and

in effect renounced his American citizenship. Private respondent’s

certificate of candidacy, filed on March 27, 1998, contained the

following statements made under oath:

45

1. 6.I AM A FILIPINO CITIZEN (STATE IF “NATURAL-BORN” OR

“NATURALIZED”) NATURAL-BORN

. . . .

2. 10.I AM A REGISTERED VOTER OF PRECINCT NO. 747-A,

BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF MAKATI,

PROVINCE OF NCR.

3. 11.I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT

TO, A FOREIGN COUNTRY.

4. 12.I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I

WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE

PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND

ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS,

LEGAL ORDERS AND DECREES PROMULGATED BY THE

DULY CONSTITUTED AUTHORITIES OF THE REPUBLIC OF

THE PHILIPPINES, AND THAT I IMPOSE THIS OBLIGATION

UPON MYSELF VOLUNTARILY, WITHOUT MENTAL

RESERVATION OR PURPOSE OF EVASION. I HEREBY

CERTIFY THAT THE FACTS STATED HEREIN ARE TRUE AND

CORRECT OF MY OWN PERSONAL KNOWLEDGE.

The filing of such certificate of candidacy sufficed to renounce his

American citizenship, effectively removing any disqualification he

might have as a dual citizen. Thus, in Frivaldo v. COMELEC it was

held:17

It is not disputed that on January 20, 1983 Frivaldo became an

American. Would the retroactivity of his repatriation not effectively give him

dual citizenship, which under Sec. 40 of the Local Government Code would

disqualify him “from running for any elective local position?” We answer this

question in the negative, as there is cogent reason to hold that Frivaldo was

really STATELESS at the time he took said oath of allegiance and even

before that, when he ran for governor in 1988. In his Comment, Frivaldo

wrote that he “had long renounced and had long abandoned his American

citizenship—long before May 8, 1995. At best, Frivaldo was stateless in the

interim—when he abandoned and renounced his US citizenship but before he

was repatriated to his Filipino citizenship.”

On this point, we quote from the assailed Resolution dated December 19,

1995:

“By the laws of the United States, petitioner Frivaldo lost his American citizenship

when he took his oath of allegiance to the Philippine Government when he ran for

Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath

of allegiance to the Philippine Government.”

These factual findings that Frivaldo has lost his foreign nationality long

before the elections of 1995 have not been effectively rebutted by Lee.

Furthermore, it is basic that such findings of the Commission are conclusive

upon this Court, absent any showing of capriciousness or arbitrariness or

abuse.

There is, therefore, no merit in petitioner’s contention that the

oath of allegiance contained in private respondent’s certificate of

candidacy is insufficient to constitute renunciation of his American

citizenship. Equally without merit is petitioner’s contention that, to be

effective, such renunciation should have been made upon private

respondent reaching the age of majority since no law requires the

election of Philippine citizenship to be made upon majority age.

Finally, much is made of the fact that private respondent admitted

that he is registered as an American citizen in the Bureau of

Immigration and Deportation and that he holds an American passport

which he used in his last travel to the United States on April 22,

1997. There is no merit in this. Until the filing of his certificate of

candidacy on March 21, 1998, he had dual citizenship. The acts

attributed to him can be considered simply as the assertion of his

American nationality before the termination of his American

citizenship. What this Court said in Aznar v.

COMELEC18applies mutatis mutandis to private respondent in the

case at bar:

. . . Considering the fact that admittedly Osmeña was both a Filipino and an

American, the mere fact that he has a Certificate stating he is an American

does not mean that he is notstill a Filipino . . . . [T]he Certification that he is

an American does not mean that he is not still a Filipino, possessed as he is,

of both nationalities or citizenships. Indeed, there is no express renunciation

here of Philippine citizenship; truth to tell, there is even no implied

renunciation of said citizenship. When We consider that the renunciation

needed to lose Philippine citizenship must be “express,” it stands to reason

that there can be no such loss of Philippine citizenship when there is no

renunciation, either “express” or “implied.”

46

To recapitulate, by declaring in his certificate of candidacy that he

is a Filipino citizen; that he is not a permanent resident or immigrant

of another country; that he will defend and support the Constitution

of the Philippines and bear true faith and allegiance thereto and that

he does so without mental reservation, private respondent has, as far

as the laws of this country are concerned, effectively repudiated his

American citizenship and anything which he may have said before as

a dual citizen.

On the other hand, private respondent’s oath of allegiance to the

Philippines, when considered with the fact that he has spent his

youth and adulthood, received his education, practiced his profession

as an artist, and taken part in past elections in this country, leaves no

doubt of his election of Philippine citizenship.

His declarations will be taken upon the faith that he will fulfill his

undertaking made under oath. Should he betray that trust, there are

enough sanctions for declaring the loss of his Philippine citizenship

through expatriation in appropriate proceedings. In Yu v. Defensor-

Santiago,19we sustained the denial of entry into the country of

petitioner on the ground that, after taking his oath as a naturalized

citizen, he applied for the renewal of his Portuguese passport and

declared in commercial documents executed abroad that he was a

Portuguese national. A similar sanction can be taken against anyone

who, in electing Philippine citizenship, renounces his foreign

nationality, but subsequently does some act constituting renunciation

of his Philippine citizenship.

WHEREFORE, the petition for certiorari is DISMISSED for lack

of merit.

SO ORDERED.

Davide,

Jr. (C.J.), Romero,Bellosillo, Melo, Puno, Vitug, Kapunan,Quisumbing

, Buena, Gonzaga-Reyes andYnares-Santiago, JJ., concur.

Panganiban and Purisima, JJ., On leave.

Pardo, J., No part.

Petition dismissed.

Note.—Ineligibility refers to the lack of the qualifications

prescribed in the Constitution on the statutes for holding public office.

(Garvida vs. Sales, Jr., 271 SCRA 767 [1997])

——o0o——

47

G.R. No. 136351. July 28, 1999.*

JOEL G. MIRANDA, petitioner, vs. ANTONIO M. ABAYA and the

COMMISSION ON ELECTIONS, respondents.

Election Law; Election Code; While Section 78 of the Code enumerated

the occasions where a candidate may be validly substituted, there is no

mention of the case where a candidate is excluded not only by disqualification

but also by denial and cancellation of his certificate of candidacy.—Petitioner

capitalizes on the fact that the Comelec ruled to disqualify Jose “Pempe”

Miranda in the May 5, 1998 resolution and he heavily relies upon the above-

quoted provision allowing substitution of a candidate who has been

disqualified for any cause. While there is no dispute as to whether or not a

nominee of a registered or accredited political party may substitute for a

candidate of the same party who had been disqualified for any cause, this

does not include those cases where the certificate of candidacy of the person

to be substituted had been denied due course and cancelled under Section 78

of the Code.Expressio unius est exclusio alterius. While the law enumerated

the occasions where a candidate may be validly substituted, there is no

mention of the case where a candidate is excluded not only by disqualification

but also by denial and cancellation of his certificate of candidacy. Under the

foregoing rule, there can be no valid substitution for the latter case, much in

the same way that a nuisance candidate whose certificate of candidacy is

denied due course and/or cancelled may not be substituted. If the intent of

the lawmakers were otherwise, they could have so easily and conveniently

included those persons whose certificates of candidacy have been denied due

course and/or cancelled under the provisions of Section 78 of the Code.

Same; Same; Only an official candidate of a registered or accredited

political party may be substituted; A cancelled certificate does not give rise to

a valid candidacy.—More importantly, under the express provisions of

Section 77 of the Code, not just any person, but only “an official candidate of

a registered or accredited political party” may be substituted. In Bautista vs.

Comelec (G.R. No. 133840, November 13, 1998) this Court explicitly ruled

that “a cancelled certificate does not give rise to a valid candidacy” (p. 13). A

person without a valid certificate of candidacy cannot be considered a

candidate in much the same way as any person who has not filed any

certificate of candidacy at all can not, by any stretch of the imagination, be a

candidate at all.

Same; Same; A person who filed no certificate of candidacy at all and a

person who filed it out of time, a person whose certificate of candidacy is

cancelled or denied due course is no candidate at all.—By its express

language, the foregoing provision of law is absolutely mandatory. It is but

logical to say that any person who attempts to run for an elective office but

does not file a certificate of candidacy, is not a candidate at all. No amount of

votes would catapult him into office. In Gador vs. Comelec(95 SCRA 431

[1980]), the Court held that a certificate of candidacy filed beyond the period

fixed by law is void, and the person who filed it is not, in law, a candidate.

Much in the same manner as a person who filed no certificate of candidacy at

all and a person who filed it out of time, a person whose certificate of

candidacy is cancelled or denied due course is no candidate at all. No amount

of votes should entitle him to the elective office aspired for.

Same; Same; A valid certificate of candidacy is likewise an

indispensable requisite in the case of a substitution of a disqualified candidate

under the provisions of Section 77 of the Code.—A deceased candidate is

required to have duly filed a valid certificate of candidacy, otherwise his

political party would not be allowed to field a substitute candidate in his

stead under Section 77 of the Code. In the case of withdrawal of candidacy,

the withdrawing candidate is required to have duly filed a valid certificate of

candidacy in order to allow his political party to field a substitute candidate

in his stead. Most reasonable it is then, under the foregoing rule, to hold that

a valid certificate of candidacy is likewise an indispensable requisite in the

case of a substitution of a disqualified candidate under the provisions of

Section 77 of the Code, just as it is in the two previous instances.

Remedial Law; Certiorari; Certiorari lies where a court has acted

without or in excess of jurisdiction or with grave abuse of discretion.—

Generally, certiorari lies where a court has acted without or in excess of

jurisdiction or with grave abuse of discretion. “Without jurisdiction” refers to

an absolute want of jurisdiction; “excess of jurisdiction” refers to the case

where the court has jurisdiction, but it transcended the same or acted

without any statutory authority; “grave abuse of discretion” implies such

capricious and whimsical exercise of judgment as is equivalent to lack of

jurisdiction.

Same; Same; An act of a court or tribunal may only be considered to

have been done in grave abuse of discretion when the same was performed in a

capricious or whimsical exercise of judgment which is equivalent to lack of

jurisdiction.—It is well-settled that an act of a court or tribunal may only be

considered to have been done in grave abuse of discretion when the same was

performed in a capricious or whimsical exercise of judgment which is

equivalent to lack of jurisdiction. The abuse of discretion must be so patent

and gross as to amount to an evasion of positive duty or to a virtual refusal to

perform a duty enjoined or to act at all in contemplation of law, as where the

power is exercised in an arbitrary and despotic manner by reason of passion

48

or personal hostility (Intestate Estate of Carmen de Luna vs. Intermediate

Appellate Court, 170 SCRA 246 [1989]; Litton Mills, Inc. vs. Galleon Trader

Inc., 163 SCRA 489 [1988]; Butuan Bay Wood Export Corp. vs. Court of

Appeals, 97 SCRA 297 [1980]). An error of judgment committed in the

exercise of its legitimate jurisdiction is not the same as “grave abuse of

discretion.” An abuse of discretion is not sufficient by itself to justify the

issuance of a writ of certiorari. The abuse must be grave and patent, and it

must be shown that the discretion was exercised arbitrarily and despotically.

SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.

The facts are stated in the opinion of the Court.

Pete Quirino Quadra for petitioner.

Ruben E. Agpalo and Jovelyn G. Grepo-de Luna for respondent

Antonio M. Abaya.

MELO, J.:

Before us is a petition for certiorari with prayer for the issuance of a

temporary restraining order and/or writ of preliminary injunction

questioning the resolution of the Comelec En Banc dated December 8, 1998 in

SPA Case No. 98-288 which disposed:

ACCORDINGLY, judgment is hereby rendered to:

1. 1.AMEND and RECTIFY the dispositive portion of the Resolution of the

Commission (First Division) in SPA No. 98-019 promulgated on May 5,

1998, to read as follows:

“WHEREFORE, in view of the foregoing, the Commission (First Division)

GRANTS the Petition. Respondent JOSE “PEMPE” MIRANDA’s certificate of

candidacy for the position of mayor of Santiago City in the May 11, 1998 national

and local elections is hereby DENIED DUE COURSE AND/OR CANCELLED.

SO ORDERED.”

2. 2.ANNUL the election and proclamation of respondent JOEL G. MIRANDA

as mayor of Santiago City in the May 11, 1998 election and CANCEL the

Certificate of Canvass and Proclamation (C.E. form 25) issued therefor;

3. 3.DIRECT THE City board of Canvassers of Santiago City to RECONVENE,

PREPARE a new certificate of canvass & proclamation and PROCLAIM the

winning candidate among those voted upon as the duly elected mayor of

Santiago City in the May 11, 1998 election; and

4. 4.DIRECT the Clerk of Court of the Commission to furnish copies of this

Decision to the Office of the President of the Philippines; the Department of

Interior and Local Government; the Department of Finance, and the

Secretary of the Sangguniang Panglunsod of Santiago City.

SO ORDERED.

(pp. 90-91, Rollo.)

The aforementioned resolution dated December 8, 1998 reversed and set

aside the earlier resolution of the First Division of the Comelec dated May 16,

1998, dismissing private respondent’s petition to declare the substitution of

Jose “Pempe” Miranda by petitioner as candidate for the City of Santiago’s

mayoralty post void.

Briefly, the pertinent factual backdrop is summarized as follows:

On March 24, 1998, Jose “Pempe” Miranda, then incumbent mayor of

Santiago City, Isabela, filed his certificate of candidacy for the same

mayoralty post for the synchronized May 11, 1998 elections.

On March 27, 1998, private respondent Antonio M. Abaya filed a

Petition to Deny Due Course to and/or Cancel Certificate of Candidacy (pp.

26-33, Rollo), which was docketed as SPA No. 98-019. The petition was

GRANTED by the Comelec in its resolution dated May 5, 1998 (pp. 36-43,

Rollo). The Comelec further ruled to DISQUALIFY Jose “Pempe” Miranda.

On May 6, 1998, way beyond the deadline for filing a certificate of

candidacy, petitioner Joel G. Miranda filed his certificate of candidacy for the

mayoralty post, supposedly as a substitute for his father, Jose “Pempe”

Miranda.

During the May 11, 1998 elections, petitioner and private respondent

vied for the mayoralty seat, with petitioner garnering 22,002 votes, 1,666

more votes than private respondent who got only 20,336 votes.

On May 13, 1998, private respondent filed a Petition to Declare Null

and Void Substitution with Prayer for Issuance of Writ of Preliminary

Injunction and/or Temporary Restraining Order, which was docketed as SPA

No. 98-288. He prayed for the nullification of petitioner’s certificate of

candidacy for being void ab initiobecause the certificate of candidacy of

622

6

22

SUPREME COURT

REPORTS ANNOTATED

Miranda vs. Abaya

49

Jose “Pempe” Miranda, whom petitioner was supposed to substitute,

had already been cancelled and denied due course.

On May 16, 1998, Comelec’s First Division dismissed SPA No. 98-

288 motu proprio (pp. 57-61, Rollo). Private respondent moved for

reconsideration (pp. 62-72, Rollo). On December 8, 1998, the Comelec En

Banc rendered the assailed decision aforequoted, resolving to GRANT the

motion for reconsideration, thus nullifying the substitution by petitioner Joel

G. Miranda of his father as candidate for the mayoralty post of Santiago City.

On December 9, 1998, petitioner sought this Court’s intercession via a

petition forcertiorari, with prayer for the issuance of a temporary restraining

order and/or writ of preliminary injunction. On December 11, 1998, the Court

resolved to issue a temporary restraining order and to require respondents to

comment on the petition. On December 14, 1998, private respondent filed his

Comment (pp. 140-187 and 188234, Rollo) and on February 16, 1999, the

Comelec, through its counsel, the Solicitor General, filed its Comment (pp.

254265, Rollo). The Court required petitioner to file a consolidated reply

within 10 days from notice, but petitioner twice asked for an extension of the

period. Without granting the motions for extension of time to file consolidated

reply, the Court decided to resolve the controversy in favor of petitioner.

Tersely, the issues in the present case may be summarized as follows:

1. 1.Whether the annulment of petitioner’s substitution and

proclamation was issued without jurisdiction and/or with grave

abuse of discretion amounting to lack of jurisdiction; and

2. 2.Whether the order of the Comelec directing the proclamation of the

private respondent was issued with grave abuse of discretion

amounting to lack of jurisdiction.

The Court finds neither lack of jurisdiction nor grave abuse of discretion

attended the annulment of the substitution and proclamation of petitioner.

623

VOL. 311, JULY 28, 1999 6

23

Miranda vs. Abaya On the matter of jurisdiction, there is no question that the case at hand

is within the exclusive original jurisdiction of the Comelec. As early as

in Herrera vs. Barretto (25 Phil. 245 [1913]), this Court had occasion to apply

the following principles:

Jurisdiction is the authority to hear and determine a cause—the right to act in a

case. Since it is the power to hear and determine, it does not depend either upon the

regularity of the exercise of that power or upon the rightfulness of the decision made.

Jurisdiction should therefore be distinguished from the exercise of jurisdiction. The

authority to decide a cause at all, and not the decision rendered therein, is what makes

up jurisdiction. Where there is jurisdiction over the subject matter, as we have said

before, the decision of all other questions arising in the case is but an exercise of that

jurisdiction.

(p. 251)

On the issue of soundness of the disposition in SPA No. 98288, the

Court finds that the Comelec’s action nullifying the substitution by and

proclamation of petitioner for the mayoralty post of Santiago City, Isabela is

proper and legally sound. Petitioner insists that the substitution at bar is

allowed under Section 77 of the Omnibus Election Code which provides:

SEC. 77. Candidates in case of death, disqualification or withdrawal.—If after

the last day for the filing of certificates of candidacy, an official candidate of a

registered or accredited political party dies, withdraws or is disqualified for any cause,

only a person belonging to, and certified by, the same political party may file a

certificate of candidacy to replace the candidate who died, withdrew or was

disqualified. The substitute candidate nominated by the political party concerned may

file his certificate of candidacy for the office affected in accordance with the preceding

sections not later than mid-day of the day of the election. If the death, withdrawal or

disqualification should occur between the day before the election and mid-day of

election day, said certificate may be filed with any board of election inspectors in the

political subdivision where he is a can-

624

6

24

SUPREME COURT

REPORTS ANNOTATED

Miranda vs. Abaya

didate, or, in the case of candidates to be voted for by the entire electorate of the

country, with the Commission.

Petitioner capitalizes on the fact that the Comelec ruled to disqualify

Jose “Pempe” Miranda in the May 5, 1998 resolution and he heavily relies

upon the above-quoted provision allowing substitution of a candidate who has

been disqualified for any cause.

While there is no dispute as to whether or not a nominee of a registered

or accredited political party may substitute for a candidate of the same party

who had been disqualified for any cause, this does not include those cases

where the certificate of candidacy of the person to be substituted had been

denied due course and cancelled under Section 78 of the Code.

Expressio unius est exclusio alterius. While the law enumerated the

occasions where a candidate may be validly substituted, there is no mention

50

of the case where a candidate is excluded not only by disqualification but also

by denial and cancellation of his certificate of candidacy. Under the foregoing

rule, there can be no valid substitution for the latter case, much in the same

way that a nuisance candidate whose certificate of candidacy is denied due

course and/or cancelled may not be substituted. If the intent of the

lawmakers were otherwise, they could have so easily and conveniently

included those persons whose certificates of candidacy have been denied due

course and/or cancelled under the provisions of Section 78 of the Code.

More importantly, under the express provisions of Section 77 of the

Code, not just any person, but only “an official candidate of a registered or

accredited political party” may be substituted. In Bautista vs. Comelec (G.R.

No. 133840, November 13, 1998) this Court explicitly ruled that “a cancelled

certificate does not give rise to a valid candidacy” (p. 13).

A person without a valid certificate of candidacy cannot be considered a

candidate in much the same way as any person who has not filed any

certificate of candidacy at all can not, by any stretch of the imagination, be a

candidate at all.

The law clearly provides:

625

VOL. 311, JULY 28, 1999 6

25

Miranda vs. Abaya SEC. 73. Certificate of candidacy.—No person shall be eligible for any elective

public office unless he files a sworn certificate of candidacy within the period fixed

herein.

By its express language, the foregoing provision of law is absolutely

mandatory. It is but logical to say that any person who attempts to run for an

elective office but does not file a certificate of candidacy, is not a candidate at

all. No amount of votes would catapult him into office. In Gador vs.

Comelec (95 SCRA 431[1980]), the Court held that a certificate of candidacy

filed beyond the period fixed by law is void, and the person who filed it is not,

in law, a candidate. Much in the same manner as a person who filed no

certificate of candidacy at all and a person who filed it out of time, a person

whose certificate of candidacy is cancelled or denied due course is no

candidate at all. No amount of votes should entitle him to the elective office

aspired for.

The evident purposes of the law in requiring the filing of certificates of

candidacy and in fixing the time limit therefor are: (a) to enable the voters to

know, at least sixty days before the regular election, the candidates among

whom they are to make the choice, and (b) to avoid confusion and

inconvenience in the tabulation of the votes cast. For if the law did not

confine the choice or election by the voters to the duly registered candidates,

there might be as many persons voted for as there are voters, and votes

might be cast even for unknown or fictitious persons as a mark to identify the

votes in favor of a candidate for another office in the same election. (Monsale

vs. Nico, 83 Phil. 758 [1949])

It is at once evident that the importance of a valid certificate of

candidacy rests at the very core of the electoral process. It cannot be taken

lightly, lest there be anarchy and chaos. Verily, this explains why the law

provides for grounds for the cancellation and denial of due course to

certificates of candidacy.

After having considered the importance of a certificate of candidacy, it

can be readily understood why in Bautista we ruled that a person with a

cancelled certificate is no candidate

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REPORTS ANNOTATED

Miranda vs. Abaya at all. Applying this principle to the case at bar and considering that

Section 77 of the Code is clear and unequivocal that only an official candidate

of a registered or accredited party may be substituted, there demonstrably

cannot be any possible substitution of a person whose certificate of candidacy

has been cancelled and denied due course.

Also, under ejusdem generis rule, where a general word or phrase (such

as “disqualification for any cause” in this case) follows an enumeration of

particular and specific words of the same class (such as the words “dies” and

“withdraws” in the instant case) or where the latter follow the former, the

general word or phrase is to be construed to include, or to be restricted to

persons, things or cases akin to, resembling, or of the same kind or class as

those specifically mentioned (see: Vera vs. Cuevas, 90 SCRA 379 [1979]). A

deceased candidate is required to have duly filed a valid certificate of

candidacy, otherwise his political party would not be allowed to field a

substitute candidate in his stead under Section 77 of the Code. In the case of

withdrawal of candidacy, the withdrawing candidate is required to have duly

filed a valid certificate of candidacy in order to allow his political party to

field a substitute candidate in his stead. Most reasonable it is then, under the

foregoing rule, to hold that a valid certificate of candidacy is likewise an

indispensable requisite in the case of a substitution of a disqualified

candidate under the provisions of Section 77 of the Code, just as it is in the

two previous instances.

51

Furthermore, interpretatio talis in ambiguis semper freinda est, ut

eviatur inconveniens et absurdum, meaning, where there is ambiguity, such

interpretation as will avoid inconvenience and absurdity shall in all cases be

adopted. To include those disqualified candidates whose certificate of

candidacy had likewise been denied due course and/or cancelled among those

who may be substituted under Section 77 of the Omnibus Election Code,

leads to the absurdity where a substitute is allowed to take the place of

somebody who had not been a candidate in the first place—a person who did

not have a valid certificate of candidacy prior to substitution. Nemo dat

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27

Miranda vs. Abaya quod non habet. What right can a non-candidate pass on to his

substitute? Clearly, there is none because no one can give what he does not

have.

Even on the most basic and fundamental principles, it is readily

understood that the concept of a substitute presupposes the existence of the

person to be substituted, for how can a person take the place of somebody

who does not exist or who never was. The Court has no other choice but to

rule that in all the instances enumerated in Section 77 of the Omnibus

Election Code, the existence of a validcertificate of candidacy seasonably filed

is a requisite sine qua non.

All told, a disqualified candidate may only be substituted if he had

a valid certificate of candidacy in the first place because, if the disqualified

candidate did not have a valid and seasonably filed certificate of candidacy,

he is and was not a candidate at all. If a person was not a candidate, he

cannot be substituted under Section 77 of the Code. Besides, if we were to

allow the so-called “substitute” to file a “new” and “original” certificate of

candidacy beyond the period for the filing thereof, it would be a crystalline

case of unequal protection of the law, an act abhorred by our Constitution.

From the foregoing discussion it is evident that the controversy at hand

is not a simple case of hair-splitting. A candidate may not be qualified to run

for election but may have filed a valid certificate of candidacy. Another

candidate may likewise be not qualified and at the same time not have a

valid certificate of candidacy, for which reason, said certificate of candidacy is

also cancelled and/or denied due course. Or, a third candidate may be

qualified but, his certificate of candidacy may be denied due course and/or

cancelled. This is possible because the grounds for disqualification (see:

Omnibus Election Code, Section 68—Disqualifications) are totally separate

and distinct from the grounds for cancellation and/or denying due course to a

certificate of candidacy (Ibid., Section 69—nuisance candidates; and Section

78—material misrepresentation). Only the candidate who had a valid

certificate of candidacy may be substituted.

628

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SUPREME COURT

REPORTS ANNOTATED

Miranda vs. Abaya The question to settle next is whether or not aside from Joel “Pempe”

Miranda being disqualified by the Comelec in its May 5, 1998 resolution, his

certificate of candidacy had likewise been denied due course and cancelled.

The Court rules that it was.

Private respondent’s petition in SPA No. 98-019 specifically prayed for

the following:

WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed

by respondent for the position of Mayor for the City of Santiago be not given due course

and/or cancelled. Other reliefs just and equitable in the premises are likewise prayed

for.

(Rollo, p. 31; Emphasis ours.)

In resolving the petition filed by private respondent specifying a very

particular relief, the Comelec ruled favorably in the following manner:

WHEREFORE, in view of the foregoing, the Commission (FIRST

DIVISION) GRANTS the Petition. Respondent JOSE “Pempe” MIRANDA is hereaby

DISQUALIFIED from running for the position of mayor of Santiago City, Isabela, in

the May 11, 1998 national and local elections.

SO ORDERED.

(p. 43, Rollo; Emphasis ours.)

From a plain reading of the dispositive portion of the Comelec

resolution of May 5, 1998 in SPA No. 98-019, it is sufficiently clear that the

prayer specifically and particularly sought in the petition was GRANTED,

there being no qualification on the matter whatsoever. The disqualification

was simply ruled over and above the granting of the specific prayer for denial

of due course and cancellation of the certificate of candidacy. It may be

stressed at this instance that the legal consequences of this May 5, 1998

resolution are independent of the issue of whether or not the Comelec was

cor-

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52

Miranda vs. Abaya rect in reviving SPA No. 98-019 by consolidating it with SPA No. 98-288

in its December 8, 1998 resolution.

As regards the procedural matter in the present petition

for certiorari, the following considerations are also in point:

It may be relevantly stressed that the review powers of the Supreme

Court over decisions of the Constitutional Commissions, in general, and the

Commission on Elections, in particular, were rather particularly defined and

“limited” by the 1987 Constitution, as they were also circumscribed in the

1973 Constitution, to a petition for review on certiorari under Rule 65.

In Dario vs. Mison (176 SCRA 84 [1989]), the Court held:

. . . We affirm the teaching of Aratuc vs. Commission on Elections, 88 SCRA 251

[1979])—as regards recourse to this Court with respect to rulings of the Civil Service

Commission—which is that judgments of the Commission may be brought to the

Supreme Court through certiorari alone, under Rule 65 of the Rules of Court.

In Aratuc, we declared:

It is at once evident from these constitutional and statutory modifications that there is a

definite tendency to enhance and invigorate the role of the Commission on Elections as the

independent constitutional body charged with the safeguarding of free, peaceful and honest

elections. The framers of the new Constitution must be presumed to have definite knowledge of

what it means to make the decisions, orders and rulings of the Commission “subject to review by

the Supreme Court.” And since instead of maintaining that provision intact, it ordained that the

Commission’s actuations be instead “brought to the Supreme Court on certiorari,” We cannot

insist that there was no intent to change the nature of the remedy, considering that the limited

scope of certiorari, compared to a review, is well known in remedial law.

x x x

It should also be noted that under the new Constitution, as under the 1973

Charter, “any decision, order, or ruling of each Commission may be brought to the

Supreme Court on certiorari,” which, as Aratuc tells us, “technically connotes

something less than saying that the same ‘shall be subject to review by the Supreme

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SUPREME COURT

REPORTS ANNOTATED

Miranda vs. Abaya Court,’ which in turn suggests an appeal by review by petition for review under

Rule 45. Therefore, our jurisdiction over cases emanating from the Civil Service

Commission is limited to complaints of lack or excess of jurisdiction or grave abuse of

discretion tantamount to lack or excess of jurisdiction, complaints that justify

certiorari under Rule 65.

(pp. 111-112)

To emphasize this procedural point, then Commissioner, later to become

a distinguished Member of this Court, Mr. Justice Florenz Regalado

responded to Commissioner Bernas’ query during the deliberations of the

1987 Constitution thusly:

FR. BERNAS. So, for purposes of the record, now, what is the intention of the

Committee? What are the grounds for certiorari?

MR. REGALADO. The Committee refers specifically to a technical term of

review by certiorariwould be relying on the provision of Rule XLV [Should be LXV] of

the Rules of Court that laid down the three grounds.

(I RECORD OF THE CONSTITUTIONAL COMMISSION, p. 539, as cited in

Bernas, S.J, The 1987 Constitution of the Republic of the Philippines: A

Commentary, 1996 Edition, p. 903.)

Thus, we have to be guided by jurisprudence relating to review

by certiorariunder Rule 65. Generally, certiorari lies where a court has acted

without or in excess of jurisdiction or with grave abuse of discretion. “Without

jurisdiction” refers to an absolute want of jurisdiction; “excess of jurisdiction”

refers to the case where the court has jurisdiction, but it transcended the

same or acted without any statutory authority; “grave abuse of discretion”

implies such capricious and whimsical exercise of judgment as is equivalent

to lack of jurisdiction.

Even assuming for the sake of argument that the Comelec committed

an error in the exercise of its jurisdiction in the present case, such is not

within the province of certiorari, as a remedial measure, to correct. The only

issue that may be taken cognizance of in the present case is whether or not

the

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Miranda vs. Abaya Comelec committed grave abuse of discretion in rendering the assailed

decision.

It is well-settled that an act of a court or tribunal may only be

considered to have been done in grave abuse of discretion when the same was

performed in a capricious or whimsical exercise of judgment which is

equivalent to lack of jurisdiction. The abuse of discretion must be so patent

and gross as to amount to an evasion of positive duty or to a virtual refusal to

perform a duty enjoined or to act at all in contemplation of law, as where the

power is exercised in an arbitrary and despotic manner by reason of passion

or personal hostility (Intestate Estate of Carmen de Luna vs. Intermediate

Appellate Court, 170 SCRA 246[1989]; Litton Mills, Inc. vs. Galleon Trader

53

Inc., 163 SCRA 489 [1988]; Butuan Bay Wood Export Corp. vs. Court of

Appeals, 97 SCRA 297[1980]). An error of judgment committed in the exercise

of its legitimate jurisdiction is not the same as “grave abuse of discretion.” An

abuse of discretion is not sufficient by itself to justify the issuance of a writ of

certiorari. The abuse must be grave and patent, and it must be shown that

the discretion was exercised arbitrarily and despotically (Soriano vs.

Atienza, 171 SCRA 284[1989]).

Petitioner posits that the Comelec committed grave abuse of discretion

when it annulled the substitution by and proclamation of petitioner, who

under Section 77 of the Omnibus Election Code, was allowed to substitute for

disqualified the candidate Jose “Pempe” Miranda. Petitioner also contends

that it was an act of grave abuse of discretion for the Comelec to direct the

proclamation of private respondent as the winning candidate in the May 11,

1998 election.

Petitioner further faults the Comelec for amending the dispositive

portion of its resolution in SPA No. 98-019, which was not elevated to it on

review, the same having already attained finality by then.

While it may be conceded that the Comelec stepped overboard and acted

in excess of its jurisdiction when it motu proprio took cognizance of SPA No.

98-019, the decision in which was by then already final, it does not

necessarily follow that the Comelec also committed grave abuse of discretion

in

632

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SUPREME COURT

REPORTS ANNOTATED

Miranda vs. Abaya resolving to grant private respondent’s motion for reconsideration by

nullifying the substitution of petitioner Joel G. Miranda. Evidently, what is

under review before us in this certiorari proceedings is SPA No. 98-288, and

not SPA No. 98019.

The question to answer is: will the Comelec’s act which may constitute

an excess of jurisdiction in SPA No. 98-019 be tantamount to an act of grave

abuse of discretion in its judgment in the separate and distinct case of SPA

No. 98-288 as well? Clearly, non sequitur.SPA No. 98-288 should be judged on

its own accord, and not under the shadow of SPA No. 98-019.

Comelec committed no grave abuse of discretion in resolving SPA No.

98-288 in favor of private respondent. As earlier pointed out, the result in the

dispositive portion of the December 8, 1998 resolution pertaining to the

issues involved in SPA No. 98-288 is correct insofar as it annulled the

election and proclamation of Joel G. Miranda. But even assuming for the sake

of argument that it is not, still, this supposed error does not constitute grave

abuse of discretion which may be annulled and reversed in the present

petition for certiorari.

As earlier elucidated too, the crux of the Comelec’s disposition in SPA

No. 98-288 is the fact that former candidate Jose “Pempe” Miranda’s

certificate of candidacy was denied due course and cancelled. There is no

dispute that the complaint or petition filed by private respondent in SPA No.

98-019 is one to deny due course and to cancel the certificate of candidacy of

Jose “Pempe” Miranda (Rollo, pp. 26-31). There is likewise no question that

the said petition was GRANTED without any qualification whatsoever. It is

rather clear, therefore, that whether or not the Comelec granted any further

relief in SPA No. 98-019 by disqualifying the candidate, the fact remains that

the said petition was granted and that the certificate of candidacy of Jose

“Pempe” Miranda was denied due course and cancelled.In fact, it was not

even necessary for the Comelec to reiterate this in its December 8, 1998

resolution. At best, the Comelec’s motu proprio act of resurrecting SPA No.

98-019 should be treated as a mere surplus-

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Miranda vs. Abaya age. The fact that the certificate of candidacy of Joel “Pempe” Miranda

was denied due course and cancelled did not depend on the en bancresolution

dated December 8, 1998 of the Comelec. It stems from the fact that the May

5, 1998 resolution GRANTED private respondent’s Petition to Deny Due

Course to and/or Cancel Certificate of Candidacy.

Verily, there is clear basis to find that there indeed was a blatant

misrepresentation in the instant case and that it was a valid ground for the

granting of the petition in SPA No. 98019. Also, there appears to be sound

basis to rule that a certificate of candidacy which has been denied due course

on account of misrepresentation is, in every legal contemplation, no

certificate at all. Ergo, there is nothing to substitute. If this judgment,

rendered in the Comelec’s rightful exercise of its jurisdiction in SPA No. 98-

288 may, at all, be considered flawed, this blemish would only constitute an

error of judgment and definitely not grave abuse of discretion. And, of course,

errors of judgment may not be corrected bycertiorari.

It may be noted that Commissioner Flores raised this supposed error in

her dissenting opinion (pp. 93-99, Rollo). However, her legal opinion failed to

convince the majority of the collegiate body and was not adopted by the

Commission en banc. This Court in the presentcertiorari proceedings cannot

54

substitute its judgment for that of the Comelec without violating the

Constitution and the Rules of Court on the matter. The Comelec’s decision is

not subject to appeal to this Court. We may only strike out a Comelec

decision if it was rendered without jurisdiction, in excess thereof, or with

grave abuse of discretion amounting to lack of jurisdiction.

The Court cannot accede to the reasoning that this Court should now

acquiesce and submit to the sovereign will of the electorate, as expressed by

their votes. We should always be reminded that ours is a government of laws

not of men. If this Court should fold its arms and refuse to apply the law at

every “clamor” of the majority of the supposed constituency, where shall order

and justice lie? Without the least intention to degrade, where shall “people

power” end, and where shall “law and justice” begin? Would the apparent

results of the

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SUPREME COURT

REPORTS ANNOTATED

Miranda vs. Abaya canvassing of votes justify this Court in refusing to apply the law

instead? The answers to the foregoing are obvious. The Court cannot choose

otherwise but to exercise its sacred duty to uphold the Constitution and the

laws of the Republic for and under which it exists. Besides, only history will

discern whether Jose “Pempe” Miranda’s filing of a certificate of candidacy for

a 4th term and the intended substitution by his son was a ploy to perpetrate

the Mirandas in power by way of a political dynasty disdained and abhorred

by our Constitution which declared:

SEC. 26. The State shall guarantee equal access to opportunities for public

service, and prohibit political dynasties as may be defined by law.

(Article II, 1987 Constitution)

The invalidation of petitioner’s supposed substitution of Jose “Pempe”

Miranda brings about the disqualification of petitioner in the mayoralty race.

In this regard, what was said inNolasco vs. Commission on Elections (275

SCRA 763 [1997]) may be recalled:

Our case law is now settled that in a mayoralty election, the candidate

who obtained the second highest number of votes, in this case Alarilla, cannot

be proclaimed winner in case the winning candidate is disqualified. Thus, we

reiterated the rule in the fairly recent case of Reyes v. Comelec (254 SCRA

514 [1996]), viz.:

‘x x x x x x x x x

‘We likewise find no grave abuse of discretion on the part of the Comelec in

denying petitioner Julius O. Garcia’s petition to be proclaimed mayor in view of the

disqualification of Renato U. Reyes. ‘That the candidate who obtains the second highest

number of votes may not be proclaimed winner in case the winning candidate is

disqualified is now settled. The doctrinal instability caused by seesawing rulings has

since been removed. In the latest ruling on the question, this Court said:

To simplistically assume that the second placer would have received the other

votes would be to substitute our judgment for the mind of the voter. The second placer

is just that, a second placer. He

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Miranda vs. Abaya lost the elections. He was repudiated by either a majority or plurality of voters.

He could not be considered the first among qualified candidates because in a field

which excludes the disqualified candidate, the conditions would have substantially

changed. We are not prepared to extrapolate the results under the circumstances.

‘Garcia’s plea that the votes case for Reyes be invalidated is without merit. The

votes cast for Reyes are presumed to have been cast in the belief that Reyes was

qualified and for that reason can be treated as stray, void and meaningless. The

subsequent finding that he is disqualified cannot retroact to the date of the elections

as to invalidate the votes cast for him.’

Consequently, respondent Comelec committed grave abuse of discretion insofar

as it failed to follow the above doctrine, a descendant of our ruling in Labo v. Comelec

(176 SCRA 1 [1989]). (pp. 782-783)

Thus, the Comelec committed grave abuse of discretion insofar as it

failed to follow the above-cited settled ruling consistently applied by this

Court since the case of Labo, Jr. vs. Comelec (176 SCRA 1 [1989]); Aquino vs.

Comelec, 248 SCRA 400 [1995]; Reyes vs. Comelec (254 SCRA 514 [1996]);

and Nolasco vs. Comelec (275 SCRA 763 [1997]).

Even as the Court cannot accede to the contention that, in view of the

election results pointing to petitioner as the electors’ choice for the mayoralty

post, we should now close our eyes to the pertinent provisions of the Omnibus

Election Code on the matter, nevertheless, the Court duly notes that the said

election results point to the fact that private respondent was not then the

choice of the people of Santiago City, Isabela. This Court has no authority

under any law to impose upon and compel the people of Santiago City to

accept private respondent as their mayor. The law on succession under

Section 44 of Republic Act 7160, otherwise known as the Local Government

Code, would then apply. Said provision relevantly states:

55

SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor,

Mayor, and Vice Mayor.—(a) If a permanent vacancy occurs in the office of the

governor or mayor, the vice-governor or

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SUPREME COURT

REPORTS ANNOTATED

Miranda vs. Abaya

vice-mayor concerned shall become the governor or mayor. If a permanent

vacancy occurs in the offices of the governor, vice governor, mayor, or vice mayor, the

highest ranking sanggunian member, or, in case of his permanent disability, the

second highest ranking sanggunian member, shall become governor, vice governor,

mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall

be filled automatically by the other sanggunian members according to their ranking as

defined herein.

x x x.

For purposes of this Chapter, a permanent vacancy arises when an elective local

official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is

removed from office, voluntarily resigns, or is otherwise permanently incapacitated to

discharge the functions of his office.

For purposes of succession as provided in this Chapter, ranking in the

sanggunian shall be determined on the basis of the proportion of votes obtained by

each winning candidate to the total number of registered voters in each district in the

immediately preceding local election.

WHEREFORE, the petition is hereby partly DENIED, insofar as the

Comelec ruling to ANNUL the election and proclamation of petitioner is

being AFFIRMED. The petition is, however, hereby GRANTED so as to

MODIFY the resolution of the Comelec in SPA No. 98-288 by DELETING the

portion directing the city board of canvassers to reconvene and proclaim the

winning candidate from among those voted upon during the May 11, 1998

elections. The law on succession should be enforced. Accordingly, the

restraining order issued in this case is forthwith LIFTED.

SO ORDERED.

Bellosillo, Mendoza, Quisumbing,Purisima, Buena, Gonzaga-

Reyes and Ynares-Santiago, JJ., concur.

Davide, Jr. (C.J.), On leave.

Romero, J., Please see my dissenting opinion.

Puno, J., I join the dissent of J. Romero.

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Miranda vs. Abaya Vitug, J., I join the dissenting view of Justice Romero.

Kapunan, J., No part in view of my relationship to one of the parties.

Panganiban, J., Please see dissenting opinion.

Pardo, J., No part. Was Comelec chairman at the time.

DISSENTING OPINION

ROMERO, J.:

As we turn a new leaf in our country’s history, we should brace

ourselves to meet the challenges that continue to threaten our

sovereignty and our enjoyment of the blessings of democracy. It is in

this light that the free and unfettered exercise of the right of suffrage,

which is the instrument through which the people express their

sovereign will, should be defended at all costs. So too, should we strive

to give full effect to the true will of the sovereign people as expressed

in their ballots.

In view of the above reasons, I beg to differ from the majority

position.

For a better understanding of the points I wish to raise in this

opinion, a review of the factual milieu is in order:

On March 24, 1998, Jose “Pempe” C. Miranda, then incumbent city

mayor of Santiago, Isabela, filed his certificate of candidacy1 for the

same mayoralty post in view of the synchronized elections of May 11,

1998. Among others, Jose “Pempe” C. Miranda declared the following

in his certificate of candidacy, viz.:

“12. I AM ELIGIBLE for the office I seek to be elected. I will support and

defend the Constitution of the Philippines and will maintain true faith and

allegiance thereto; that I will obey the laws, legal orders and decrees

promulgated by the duly constituted

___________________

1 Rollo, p. 34.

638

638 SUPREME COURT REPORTS

ANNOTATED

Miranda vs. Abaya

56

authorities of the Republic of the Philippines; and that I impose this

obligation upon myself voluntarily, without mental reservation or purpose of

evasion. I hereby certify that the facts stated herein are true and correct of

my own personal knowledge.”

On March 29, 1998, Antonio M. Abaya, private respondent herein,

filed a Petition to Deny Due Course to and/or Cancel Certificate of

Candidacy2 docketed as SPA No. 98-019, against Jose “Pempe” C.

Miranda, who was then the official candidate of the Laban ng

Makabayang Masang Pilipino (LAMMP). Private respondent alleged

that Jose “Pempe” C. Miranda made a false material

representation3 in his certificate of candidacy, pointing out that Jose

“Pempe” C. Miranda is ineligible for re-election as city mayor of

Santiago, Isabela, by virtue of the limitation stated in Section 8,

Article X of the 1987 Constitution4 and in Section 43(b) of Republic Act

No. 7160,5 otherwise known as the Local Government Code of

____________________

2 Entitled “Antonio M. Abaya v. Jose ‘Pempe’ Miranda,” Rollo, pp. 26-33.

3 Sec. 78, Omnibus Election Code of the Philippines, provides:

“Sec. 78. Petition to deny due course to or cancel a certificate of candidacy.—A verified petition

seeking to deny due course or to cancel a certificate of candidacy may be filed by any person

exclusively on the ground that any material representation contained therein as required under

Section 74 hereof is false. The petition may be filed at any time not later than twenty-five (25)

days from the time of filing of the certificate of candidacy and shall be decided, after notice and

hearing, not later than fifteen days before the election.” (Emphasis ours)

4 “Sec. 8. The term of office of elective local officials which shall be determined by

law, shall be three years and no such official shall serve for more than three consecutive

terms. x x x” (Emphasis supplied)

5 “Sec. 43. Term of Office.

x x x x x x x x x

1. b)No local elective official shall serve for more than three (3) consecutive terms in the

same position. x x x.” (Emphasis supplied)

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Miranda vs. Abaya 1991, which prohibits elective local officials from seeking a fourth

consecutive term for the same elective post.

In a resolution6 dated May 5, 1998, the Commission on Elections

(COMELEC) First Division7 resolved to disqualify Jose “Pempe” C.

Miranda on the ground that he has already served the maximum

three (3) consecutive terms8 for the same position, hence rendering

him ineligible to run for the same position in the May 11, 1998

elections. The dispositive portion of the May 5, 1998 resolution reads:

“WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION)

GRANTS the Petition. Respondent JOSE “Pempe” MIRANDA is hereby

DISQUALIFIED from running for the position of mayor of Santiago City,

Isabela, in the May 11, 1998 national and local elections.

SO ORDERED.”9

Since neither Jose “Pempe” C. Miranda nor private respondent

Antonio M. Abaya moved for the reconsideration of the COMELEC

Resolution dated May 5, 1998, said resolution became final and

executory.10

On May 6, 1998, Joel G. Miranda, petitioner herein, filed his

certificate of candidacy11 for the mayoralty post, as a sub-

____________________

6 Petition, Annex B, Rollo, pp. 36-43.

7 Composed of Hon. Manolo B. Gorospe, presiding commissioner; Hon. Teresita Dy-

Liacco Flores and Hon. Evalyn I. Fetalino, commissioners.

8 His first term was by virtue of his election on January 18, 1988; his second, by his

re-election on May 11, 1992; and his third, also by re-election on May 8, 1995.

9 Supra, note 6, p. 43.

10 Section 13 (c), Rule 18 of the COMELEC Rules of Procedure provides:

(c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division

shall become final and executory after the lapse of five (5) days in Special actions and Special

cases and after fifteen (15) days in all other actions or proceedings, following its promulgation.

11 Petition, Annex C, Rollo, p. 44.

640

640 SUPREME COURT REPORTS

ANNOTATED

Miranda vs. Abaya stitute candidate for his father, Jose “Pempe” C. Miranda, who was

earlier declared disqualified by the COMELEC. Petitioner’s certificate

of candidacy was accompanied by a certificate of nomination12 from the

same political party, the LAMMP. The substitution is in accordance

with Section 77 of the Omnibus Election Code13 which provides that a

57

candidate “disqualified for any cause” may be substituted by the same

political party to which the disqualified candidate is affiliated. The

substitution of Joel G. Miranda was sanctioned by the COMELECEn

Banc, as it in fact included petitioner’s name in the certified list of

candidates for the position of mayor of Santiago City, Isabela.

Meanwhile, on May 11, 1998, elections were held. In Santiago

City, Isabela, where only two (2) candidates vied for the mayoralty

seat, petitioner garnered 22,002 votes as against private respondent,

who obtained 20,336 votes. Thus, petitioner won with a margin of

1,666 votes.

On May 13, 1998, private respondent filed a Petition to Declare

Null and Void Substitution with Prayer for Issuance of a Writ of

Preliminary Injunction and/or Temporary Restraining Order.14 Said

petition,15 docketed as SPA No. 98-288, prays for the nullification of

petitioner’s certificate of candidacy as substitute candidate for being

void ab initio on the ground that since the certificate of candidacy of

Jose “Pempe” C. Miranda has been cancelled and/or denied due

course, there was no certificate of candidacy to be substituted or

replaced by the certificate of candidacy of petitioner. Private

respondent ar-

___________________

12 Petition, Annex C-1, Rollo, p. 45.

13 “Sec. 77. Candidates in case of death, DISQUALIFICATION or withdrawal of

another.—If after the last day for filing of certificate of candidacy, an official candidate

of a registered or accredited political party dies, withdraws or is DISQUALIFIED for

any cause, only a person belonging to, and certified by, the same political party may

file a certificate of candidacy to replace the candidate who died, withdrew or was

disqualified. x x x.” (Italics supplied)

14 Petition, Annex D, Rollo, pp. 46-50.

15 Entitled “Antonio M. Abaya v. Joel G. Miranda.”

641

VOL. 311, JULY 28, 1999 641

Miranda vs. Abaya gues that the substitution of candidacy presupposes the existence, at

the time of substitution, of a certificate of candidacy to be replaced or

substituted by the substitute certificate of candidacy. Private

respondent further avers that the substitution should be nullified

since the cancellation of and/or denial of due course to a certificate of

candidacy is not one of the grounds for substitution under Section 77

of the Omnibus Election Code.16

In an Amended Petition to Declare Null and Void Substitution

with Prayer for Issuance of a Writ of Preliminary Injunction and/or

Temporary Restraining Order17 filed on May 14, 1998, private

respondent further argues that the substitution of petitioner was not

valid considering that the latter’s certificate of candidacy was hastily

and prematurely filed. Private respondent asserts that a substitution,

when allowed, should take place only after the lapse of the five-day

period within which to file a motion for reconsideration.18 In this case,

since the resolution declaring Jose “Pempe” C. Miranda “disqualified”

was promulgated on May 5, 1998, then the substitute candidate can

file his certificate of candidacy only on May 11, 1998. Private

respondent further contends that, even assuming that substitution is

allowed, the certificate of nomination, which should accompany

petitioner’s certificate of candidacy, was not attested under oath by

the party president, chairman, secretary-general, or any other party

officer duly authorized in writing to do so,19 in contravention of the

requirements of Section 5 of COMELEC Resolution No. 2977,20 dated

January 15, 1998.

_________________

16 Supra, note 14, p. 47.

17 Petition, Annex D-1, Rollo, pp. 51-56.

18 Ibid., p. 53.

19 Id.

20 “Sec. 5. Certificate of nomination of official candidates by political party, and

nomination of party list representatives.—The certificates of nomination by registered

political parties, organizations or coalitions of their official candidates shall be filed

with the certificates of candidacy not later than the last day for filing of certificates of

candidacy as specified in Section 4 hereof, duly signed

642

642 SUPREME COURT REPORTS

ANNOTATED

Miranda vs. Abaya In both the original and amended petitions, private respondent

prayed that the proclamation of the petitioner as duly elected mayor

of Santiago City, Isabela, be enjoined. However, no temporary

restraining order or writ of preliminary injunction was issued by the

58

COMELEC and consequently, the petitioner was proclaimed duly

elected city mayor.21

On May 16, 1998, the COMELEC First Division dismissed motu

proprio the Amended Petition to Declare Null and Void Substitution

with Prayer for Issuance of a Writ of Preliminary Injunction and/or

Temporary Restraining Order. In its resolution dated May 16,

1998,22 the COMELEC First Division ruled in this wise:

“I. There was valid substitution.

The petition in SPA No. 98-019 was anchored essentially on the

ineligibility of the respondent to run for the fourth (4th) time for the

mayorship of Santiago City. In substance, it was a petition to disqualify. Even

the Resolution of the Commission (First Division) promulgated on May 5,

1998 and a copy of which was attached to the petition herein is clear that

respondent therein was disqualified by this Commission. Said ruling on the

DISQUALIFICATION of Jose ‘Pempe’ Miranda was accepted by herein

petitioner, a fact that is conclusive on him, by reason of his failure to appeal

said Resolution.Jose ‘Pempe’ Miranda, being a disqualified candidate may,

therefore, be substituted.

II. No premature substitution.

While it may be true that a period of five (5) days to appeal is allowed

under the Comelec Rules of Procedure, the option to consider the Resolution

final and executory without waiting for the expiration of the period to appeal

belongs to the aggrieved party. Thereupon, the winning party has no cause for

complaint. An express waiver of the

____________________

and attested under oath by the party president, chairman, secretarygeneral or any other party

officer duly authorized in writing to do so. x x x” (Italics ours)

21 Rollo, p. 11.

22 Petition, Annex E, Rollo, pp. 57-61.

643

VOL. 311, JULY 28, 1999 643

Miranda vs. Abaya right to appeal by the losing party is not necessary to the validity of his

subsequent acts.

It must also be remembered that the respondent Jose Miranda in SPA 98-

019 was wearing two hats: one, in his capacity as respondent in said case and

two, as District Chairman in the 4th District of Isabela for LAMMP. Personal

acts or omissions of respondent cannot vitiate his official acts as District

Chairman. The party nomination as well as the Certificate of candidacy of

the substituted candidate, both dated May 6, 1998, cannot be made infirm by

Jose Miranda’s decision to accept the ruling as final within the appeal period.

III. A party nomination signed by the District Chairman of the party

concerned is valid.

Petitioner contends that the party nomination issued to herein

respondent by the LAMMP Chairman for the Fourth District of Isabela, to

which Santiago City belongs, is flawed for two reasons:

1. a.The authority in writing for the LAMMP Chairman to nominate is

not attached to the nomination;

2. b.The Certificate of Nomination is not under oath.

Section 5 of Comelec Resolution No. 2977 relied on by the petitioner does

not require that the written authority to nominate granted by the LAMMP to

its District Chairman must be attached to the nomination. Hence, the

nomination issued by the District Chairman in this case cannot be challenged

on that ground.”23(Italics supplied.)

On May 21, 1998, private respondent filed a Motion for

Reconsideration24 of the COMELEC resolution dated May 16, 1998,

raising the following errors25 for consideration, to wit:

“I. The action or remedy instituted by petitioner in SPA No. 98-019 captioned

‘Antonio M. Abaya vs. Jose “Pempe” Miranda’ was purely a petition to deny

due course to and/or cancel the certificate of candidacy of respondent therein

pursuant to Section 78 of the Omnibus Election Code and not a petition for

disqualification.

____________________

23 Ibid., p. 59.

24 Petition, Annex F, Rollo, pp. 62-72. Petitioner Miranda was not furnished a copy

of the Motion for Reconsideration.

25 Ibid., pp. 2 and 7.

644

644 SUPREME COURT REPORTS

ANNOTATED

Miranda vs. Abaya II. The certificate of candidacy filed by herein respondent in substitution for

the certificate of candidacy filed by his father and which was denied due

59

course and/or canceled in SPA No. 98-019, is fatally defective and void ab

initio.” (All caps in the original)

On December 8, 1998, the COMELEC En Banc, public respondent

herein, issued a resolution26 resolving jointly the petitions docketed as

SPA No. 98-288 and SPA No. 98-019.27 The Commission En

Bancresolved to grant the Motion for Reconsideration in SPA No. 98-

288 thereby nullifying the substitution of petitioner as mayoralty

candidate. Curiously, the COMELEC En Banc resolution altered and

amended the dispositive portion of the resolution dated May 5, 1998

in SPA No. 98-019, which has already become final and executory. It

deleted the phrase “Jose ‘Pe[m]pe’ Miranda is hereby DISQUALIFIED

from running for the position of mayor of Santiago City, Isabela, in

the May 11, 1998 national and local elections,” and in lieu thereof,

amended and rectified the dispositive portion thereof to read as:

“WHEREFORE, in view of the foregoing, the Commission (First Division)

GRANTS the Petition. Respondent JOSE ‘PEMPE’ MIRANDA’s certificate of

candidacy for the position of mayor of Santiago City in the May 11, 1998

national and local elections is hereby DENIED DUE COURSE AND/OR

CANCELLED.

SO ORDERED.”28

The COMELEC En Banc resolution likewise annulled the election

and proclamation of the petitioner as mayor of Santiago City, Isabela

and cancelled his certificate of canvass and proclamation; and,

ordered the proclamation of the private respondent as duly elected

mayor of Santiago City, Isabela. The CommissionEn Banc disposed

thus:

“2. ANNUL the election and proclamation of respondent JOEL G. MIRANDA

as mayor of Santiago City in the May 11, 1998

_________________

26 Petition, Annex H, Rollo, pp. 85-92.

27 Ibid., p. 85.

28 Id., p. 90.

645

VOL. 311, JULY 28, 1999 645

Miranda vs. Abaya election and CANCEL the Certificate of Canvass and Proclamation (C.E.

form 25) issued therefor;

3. DIRECT the City of board of Canvassers of Santiago City to

RECONVENE, PREPARE a new certificate of canvass & proclamation and

PROCLAIM the winning candidate those voted upon as the duly elected

mayor of Santiago City in the May 11, 1998 election.”29

The COMELEC En Banc ruled that the resolution dated May 5, 1998

in SPA No. 98-019 did not disqualify petitioner’s father, Jose “Pempe”

C. Miranda, but that his certificate of candidacy was denied due

course and cancelled. Hence, Jose “Pempe” C. Miranda, ceased to be a

candidate and thus, cannot be substituted by anybody, petitioner

included. The Commission En Basic distinguished between Section

7830 of the Onmibus Election Code in relation to Section 74,31 whereon

SPA No. 98-019 is based, and Section 6832 of the same Code. The

substitution of petitioner being null and void ab initio, he did not

become a candidate in the May 11, 1998 elections and therefore, the

votes petitioner garnered should be considered stray or invalid and

his election and consequent proclamation non-existent. It follows that

private respondent was the sole candidate for the office of mayor of

Santiago City, and in the absence of any candidate who may have

obtained the greater number of votes, the right to be proclaimed is

legally vested upon private respondent.33

Hence, this special civil action for certiorari34 under Rules 64 and

65 of the 1997 Rules of Civil Procedure of the COMELEC En

Banc resolution promulgated on December 8, 1998, in SPA No. 98-

288, which reversed and set aside the earlier resolution dated May 16,

1998 of the COMELEC First Divi-

_____________________

29 Id., p. 91.

30 Petition to deny due course to or cancel a certificate of candidacy.

31 Contents of certificate of candidacy.

32 Disqualifications.

33 Supra, note 26, pp. 89-90.

34 Rollo, pp. 3-25.

646

646 SUPREME COURT REPORTS

ANNOTATED

Miranda vs. Abaya

60

sion in SPA No. 98-019, dismissing the petition to declare void the

substitution of petitioner as candidate for city mayor of Santiago City,

Isabela.

In view of petitioner’s assertion that the people of Santiago City,

Isabela would suffer great and irreparable injury unless a temporary

restraining order is issued, the Court had caused the issuance of a

temporary restraining order on December 11, 1998, to take effect

immediately and to continue until further orders, upon the filing of

the required bond.35

From the foregoing factual and procedural antecedents which gave

rise to and form part of the circumstances attendant to this petition,

the following issues have been aptly formulated by the majority:

1. 1.Whether the annulment of the substitution and

proclamation of the petitioner was issued without jurisdiction

and/or with grave abuse of discretion amounting to lack of

jurisdiction; and

2. 2.Whether the order of the COMELEC directing the

proclamation of the private respondent was issued with grave

abuse of discretion amounting to lack of jurisdiction.36

The prevailing principle in this jurisdiction on petitions for certiorari

is, only where there is a clear showing of grave abuse of discretion

would this Court be warranted in reversing the resolution or decision

of the respondent tribunal.

After a thorough and judicious review of the circumstances

obtaining in the instant case, it is my considered view that the

resolution dated December 8, 1998, of the COMELEC En Banc was

issued capriciously, whimsically and in grave abuse of discretion. I,

therefore, find for the petitioner.

At the outset, I note the patent and palpable error committed by

the public respondent COMELEC En Banc when itmotu

proprio joined the cases in SPA No. 98-019 and SPA No. 98-288, on

the tenuous basis of identity of parties and issues involved. The

resolution now assailed as having been rendered with grave abuse of

discretion, was supposed to address

___________________

35 Rollo, pp. 105-106.

36 Rollo, pp. 15 and 18.

647

VOL. 311, JULY 28, 1999 647

Miranda vs. Abaya only the issues as they were presented in the motion for

reconsideration filed by private respondent. The public respondent,

instead of confining itself only with the instant case, erroneously

included the issues posed in SPA No. 98-019, which issues had long

been resolved and had become final and executory.

I am perplexed by the sudden resurrection of the issues in SPA No.

98-019, which have long been laid to rest in the resolution dated May

5, 1998, of the COMELEC First Division. Since no motion for

reconsideration was filed by the parties, the resolution became final

and executory. It is a rule of longstanding that a judgment which has

become final and executory, can no longer be reviewed, amended or

corrected by the Court, except for clerical errors or mistakes.37 This

being the case, the public respondent did not acquire jurisdiction over

SPA No. 98-019, and accordingly, should not have consolidated or

jointly resolved the two cases. What is even more disturbing is the

fact that public respondent has caused the amendment of the

dispositive portion of the resolution dated May 5, 1998, in the

resolution dated December 8, 1998, of the Commission En Banc. This

is a blatant and unprecedented deviation from the principle that “once

a decision becomes final, even the Court which rendered it cannot

lawfully alter or modify the same, especially where the alteration or

modification is material and substantial.”38

While the resolution of the instant petition can be arrived at by

confining the discussion to the issues raised in SPA No. 98-288, I

shall, nevertheless, explain why the issues in SPA No. 98-019 bear

upon the instant petition. This should not, however, mislead one into

thinking that this Court can motu proprio take cognizance of and

acquire jurisdiction over SPA No. 98-019 despite the fact that the

resolution therein had never been appealed to the Commission En

Banc nor had been subject of a motion for reconsideration; or that this

___________________

37 Maramba v. Lozano, 20 SCRA 474 (1967).

38 Samson v. Montejo, 9 SCRA 419 (1963).

648

61

648 SUPREME COURT REPORTS

ANNOTATED

Miranda vs. Abaya Court can re-open a decided case that has long become final and

executory.39

The pivotal issue posed in SPA No. 98-019 is: Whether Jose

“Pempe” C. Miranda’s certificate of candidacy should be denied due

course and/or cancelled, by virtue of his having served the maximum

legal limit of three (3) consecutive terms for the same position.

The COMELEC First Division found that, indeed, Jose “Pempe” C.

Miranda had already served three (3) consecutive terms as mayor of

Santiago City, Isabela, and hence, is ineligible to run for the same

position in the May 11, 1998 elections. Note that in the decretal

portion of the said resolution, the Commission used the word

“DISQUALIFIED.” It bears stressing that neither of the parties

moved for reconsideration, thereby making said resolution final and

executory. As a result of the disqualification of Jose “Pempe” C.

Miranda as official mayoralty candidate of the LAMMP, the party was

constrained to field herein petitioner as substitute candidate.

Elections were held, and substitute candidate Joel G. Miranda,

petitioner herein, obtained the highest number of votes. It appears

that, only after the canvassing of votes showing petitioner in the lead

did private respondent, too late in the day, questioned the resolution

dated May 5, 1998, through a petition to declare null and void the

substitution of petitioner as official mayoralty candidate of the

LAMMP. It should be pointed out that from the time petitioner filed

his certificate of candidacy up until the counting of ballots and

canvassing of votes, private respondent did nothing to impugn the

validity of petitioner’s substitution and his certificate of candidacy.

In seeking to nullify petitioner’s certificate of candidacy as

substitute candidate for being void ab initio, private respondent

asserts that since his petition was denominated as a “Petition to Deny

Due Course to and/or Cancel Certificate of Candidacy,” the

COMELEC First Division, in resolving to

__________________

39 Petition, Annex H-1, Rollo, pp. 93-99.

649

VOL. 311, JULY 28, 1999 649

Miranda vs. Abaya grant said petition, actually denied due course to and/or cancelled the

certificate of candidacy filed by Jose “Pempe” C. Miranda.

The COMELEC En Banc upheld private respondent’s contention

and criticized its First Division for having unwittingly committed a

serious error in semantics by using the term “DISQUALIFIED,”

instead of the more appropriate word “CANCELLED.”40 It ruled that

the erroneous word, notwithstanding, the certificate of candidacy of

Jose “Pempe” C. Miranda was deemed cancelled and/or denied due

course, and thus, there was no certificate of candidacy to be

substituted or replaced by the certificate of candidacy of

petitioner.41 The Commission En Bancdeduced that since the

cancellation of and/or denial of due course to a certificate of candidacy

is not one of the grounds for substitution under Section 77 of the

Omnibus Election Code, the substitution of petitioner is null and

void ab initio.42Further, the Commission En Banc inferred that since

petitioner never acquired the status and personality of a registered

candidate, private respondent became the sole candidate for the

mayoralty post43 in Santiago City, Isabela. Therefore, when there is a

showing that private respondent obtained the requisite majority vote,

he should be proclaimed as duly elected mayor of Santiago City,

Isabela.

Turning now to the nexus or vinculum of SPA No. 98-019 to the

instant case, I have here occasion to discuss the disqualification of

Jose “Pempe” C. Miranda and the substitution of Joel G. Miranda as

mayoralty aspirant.

I am in total conformity with the choice of remedy of private

respondent in challenging the “eligibility” of Jose “Pempe” C.

Miranda. For when a material representation required by law to be

stated in a certificate of candidacy is false, the eligibility of the

candidate concerned may be impugned only through a petition to deny

due course to or cancel

__________________

40 Supra, note 26, pp. 85-86.

41 Ibid., p. 86.

42 Id., p. 89.

43 Id., p. 90.

650

62

650 SUPREME COURT REPORTS

ANNOTATED

Miranda vs. Abaya certificate of candidacy.44 Section 78 of the Omnibus Election Code, in

relation to Section 7445 of the same Code, operates to deny due course

and/or to cancel certificates of candidacy that contain material

representations that are false.

In his certificate of candidacy, Jose “Pempe” C. Miranda falsely

represented himself to be “eligible” for the office of mayor of Santiago

City, Isabela, when in fact, he had already served the maximum legal

limit of three (3) consecutive terms for the same position. The

ineligibility or disqualification of Jose “Pempe” C. Miranda from

seeking a fourth consecutive term finds justification in statutory46 and

constitutional47 law. But because he made a material representation in

his certificate of candidacy that is false, in violation of Section 74 of

the Omnibus Election Code, the proper recourse against the candidate

is via a petition to deny due course to or cancel a certificate of

candidacy under Section 78 of the same Code. This is not to say,

however, that the ineligibility of Jose “Pempe” C. Miranda merely or

solely stems from his false statement in his certificate of candidacy,

such that, if he omits said representa-

____________________

44 Section 1, Rule 23, COMELEC Rules of Procedure.

45 Sec. 74. Contents of certificate of candidacy.—The certificate of candidacy shall

state that the person filing it is announcing his candidacy for the office stated therein

and that he is eligible for said office; if for Member of the Batasang Pambansa, the

province, including its component cities, highly urbanized city or district or sector

which he seeks to represent; the political party to which he belongs; civil status; his

date of birth; residence; his post office address for all election purposes; his profession

or occupation; that he will support and defend the Constitution of the Philippines and

will maintain true faith and allegiance thereto; that he will obey the laws, legal orders,

and decrees promulgated by the duly constituted authorities; that he is not a

permanent resident or immigrant to a foreign country; that the obligation imposed by

his oath is assumed voluntarily, without mental reservation or purpose of evasion; and

that the facts stated in the certificate of candidacy are true to the best of his

knowledge. (Italics supplied)

46 Section 43(b), Republic Act No. 7160, otherwise known as the 1991 Local

Government Code.

47 Section 8, Article X, 1987 Philippine Constitution.

651

VOL. 311, JULY 28, 1999 651

Miranda vs. Abaya tion or, if he admits his ineligibility to seek the public office, then he

can run and be voted for in the May 11, 1998 elections. For even absent

the false material representation referred to in Section 78, in relation

to Section 74 of the Omnibus Election Code, Jose “Pempe” C. Miranda

is disqualified or ineligible to seek another consecutive term for the

same office ipso jure.

Stated differently, even if the petition filed by private respondent

was denominated as a “Petition to Deny Due Course to and/or Cancel

Certificate of Candidacy,” the fact remains that Jose “Pempe” C.

Miranda, in view of the term limits fixed under Section 8, Article X of

the Constitution and Section 43(b) of the Local Government Code, is

DISQUALIFIED to seek the mayoralty post a fourth time.

In fine, even if the petition was filed pursuant to Section 78, in

relation to Section 74 of the Omnibus Election Code,the COMELEC

First Division correctly found Jose “Pempe” C. Miranda to be

“DISQUALIFIED,” since the false material representation is

essentially based on his disqualification under relevant statutory and

constitutional provisions.

Indeed, the assertion of private respondent that there is a world of

difference between “disqualified” and “denied due course and/or

canceled” for purposes of substitution, is untenable. The hair-splitting

distinction which private respondent arduously explained, and to

which the majority subscribes, cannot, by any stretch of legal

hermeneutics, be construed as sanctioning a conclusion that a petition

to deny due course to and/or cancel a certificate of candidacy, when

granted, excludes a finding that the candidate concerned is

disqualified by virtue of his ineligibility as prescribed under statutory

and constitutional law.

The disqualification of Jose “Pempe” C. Miranda having been

established, I now proceed to determine the validity of the

substitution of Joel G. Miranda.

Private respondent, as sustained by the Commission En

Banc, makes capital of the argument that “the substitute certificate of

candidacy filed by petitioner to replace the cancelled certificate of

candidacy of his father Jose “Pempe” C. Miranda, is fatally defective

for lack of legal basis, and as

63

652

652 SUPREME COURT REPORTS

ANNOTATED

Miranda vs. Abaya such, the same is necessarily void ab initioand petitioner who filed the

same is not, in law, a candidate.”48

When, as in the instant case, an official mayoralty aspirant of a

political party has been declared “disqualified for any reason” to seek

said public office, Section 77 of the Omnibus Election Code operates to

authorize a substitute to file a certificate of candidacy, to replace the

candidate who was disqualified. Section 77 of the Omnibus Election

Code provides that “x x xonly a person belonging to, and certified by,

the same political party may file a certificate of candidacy to replace

the candidate who died, withdrew or was disqualified x x x.”

The term “SUBSTITUTION” ordinarily means “replacement,” or

“turning to an alternative.” Applying the evident intention of the law,

as literally expressed in Section 77 of the Omnibus Election Code, that

which is sought to be replaced is not the certificate of candidacy

previously filed, but to replace the candidate who died, withdrew or

was disqualified. The provision on substitution outlined under Section

77 of the Omnibus Election Code, enables the registered or accredited

political party to field a substitute candidate to replace the candidate

who died, withdrew or was disqualified. Private respondent’s

assertion that “it is the certificate of candidacy which is to be

substituted or replaced by the substitute certificate of candidacy of

herein petitioner,”49 is grossly inaccurate and logically flawed. What is

crystal clear from a reading of Section 77 of the Omnibus Election

Code, is that it authorizes a person (petitioner) belonging to and

nominated by the same political party (LAMMP) to replace the

candidate who was disqualified (Jose “Pempe” C. Miranda). In the

instant case, petitioner, who has filed the requisite certificate of

candidacy and certificate of nomination, is found to have validly

substituted or replaced Jose “Pempe” C. Miranda as official mayoralty

aspirant of the LAMMP in the May 11, 1998 elections, in Santiago

City, Isabela.

___________________

48 Supra, note 24, p. 68.

49 Supra, note 17, p. 52.

653

VOL. 311, JULY 28, 1999 653

Miranda vs. Abaya Private respondent, in challenging the validity of the substitution of

petitioner, alleges that petitioner’s certificate of candidacy was hastily

and prematurely filed. Private respondent further contends that,

there could not have been a valid substitution since the certificate of

nomination, which should accompany petitioner’s certificate of

candidacy, was not attested under oath by the party president,

chairman, secretarygeneral, or any other party officer duly authorized

in writing to do so, in contravention of the requirements of Section 5

of COMELEC Resolution No. 2977.

With respect to the contention that the substitution of petitioner

was done in haste and that his certificate of candidacy was

prematurely filed, I invite attention to the fact that the resolution

declaring Jose “Pempe” C. Miranda “disqualified” was promulgated on

May 5, 1998. If we were to follow the fiveday reglementary period

before a substitute candidate can file his certificate of candidacy, then

petitioner can only file his certificate of candidacy on May 11, 1998.

Considering that the purpose of filing a certificate of candidacy is to

apprise the voting public of one’s candidacy for a particular elective

post, the petitioner and his party cannot certainly be faulted for filing

the substitute certificate of candidacy immediately after the

disqualification or before May 11, 1998. Since the resolution was

promulgated only on May 5, 1998, to strictly enforce the five-day

reglementary period on petitioner, as to permit him to file his

certificate of candidacy only on May 11, 1998, election day, would be

to effectively deprive him of the opportunity to make known publicly

his candidacy for the mayoralty post of Santiago City, Isabela.

With respect to the allegation that the petitioner’s certificate of

candidacy is fatally defective owing to the failure of the certificate of

nomination to bear an attestation under oath of the party president,

chairman, secretary-general, or any other party officer duly

authorized in writing to do so, it is my wellconsidered view that the

absence of an attestation under oath in the certificate of nomination,

does not render said certificate invalid. It is a rule of long-standing

that departure from

654

6

54

SUPREME COURT REPORTS

ANNOTATED

64

Miranda vs. Abaya

the formal requirements50 prescribed under the election laws, when

not used as a means for fraudulent practice, will be considered a

harmless irregularity.51 This irregularity, cannot invalidate the

certificate nor the election itself for the fundamental reason that,

after the people have expressed their sovereign choice, it being proven

that petitioner Joel G. Miranda obtained the majority of the legal

votes, the will of the people cannot be frustrated by a mere

technicality.52 It is judicially accepted that election rules, while

mandatory before the election, are merely directory after such election

and it is not just to nullify the will of the electorate by purely

technical reasons.53 In a long line of cases, this Court ruled that laws

governing election cases must be liberally construed, and that

technical and procedural barriers should not be allowed to stand if

they constitute an obstacle to the determination of the true will of the

electorate in the choice of their elective officials.54

Finally, I cannot agree with public respondent’s ruling that private

respondent should be proclaimed as the winning candidate among

those voted upon as the duly elected Mayor of Santiago City in the

May 11, 1998 elections.

As records prove, petitioner Joel G. Miranda obtained the highest

number of votes, leading by 1,666 votes over private

respondent.55 Having been chosen and elected by the majority of the

voting populace of Santiago City, Isabela, petitioner is legally entitled

to serve in the capacity of city mayor.

Even on the assumption that Jose “Pempe” C. Miranda was

declared disqualified, private respondent, being the candidate who

obtained the second highest number of votes, cannot occupy the office

that was vacated as a result of the disqualification of petitioner, who

obtained the highest number of votes.56 By any mathematical

formulation, the runner-up cannot be construed to have obtained a

majority or plurality of votes cast where an ineligible candidate has

garnered either a majority or plurality of the votes.57 To simplistically

assume that the second placer would have received the other votes

would be to substitute our judgment for the mind of the voter. The

second placer is just that, a second placer.58 This is not to say that he

is bereft of any other recourse.

In view of the foregoing, it is my opinion that the Court should

GRANT the instant petition for certiorari and REVERSE and SET

ASIDE the resolution of public respondent COMELEC En Banc dated

December 8, 1998 for having been rendered with grave abuse of

discretion amounting to lack or excess of jurisdiction, as well as to

REINSTATE the resolution of the COMELEC First Division dated

May 16, 1998.

DISSENTING OPINION

PANGANIBAN, J.:

I appreciate the scholarly disquisition of the majority led by my

distinguished brother, Justice Jose A. R. Melo, explaining the

difference between the “disqualification” of a candidate and the

“cancellation” of his certificate of candidacy. The majority holds that,

under Section 77 of the Omnibus Election Code, there are only three

instances in which a candidate may be “substituted,” and these are

“death, withdrawal or disqualification” of such candidate. Inasmuch

as the certificate of candidacy of petitioner’s father, Jose “Pempe”

Miranda, was merely “cancelled,” he could not be legally substituted

by reason of the rule on statutory construction, expressio unius est

exclusio alterius.1

I agree that there is some legal logic in this conclusion. However,

as the eminent Justice Oliver Wendell Holmes, Jr. has aptly said,

“The life of the law has not been logic; it has been experience.” With

due respect, may I point out that the problem with the majority’s

position is that it totally scuttles the result of the election for the

position of mayor and, instead, unceremoniously installs the elected

vice mayor to the said position.

There is no doubt that the petitioner was the people’s choice for

mayor. He garnered the highest number of votes in the election for

mayor of the City of Santiago. Why should this Court, in the name of

hair-splitting logic, obliterate the popular will and impose upon the

electorate a person whom nobody voted for the position of mayor?

Experience and common sense rebel against this proposition.

To start with, by virtue of the Comelec Resolution of May 5, 1998,

petitioner’s father was “DISQUALIFIED from running for the

position of mayor of Santiago City, Isabela.”2 However, Mr. Justice

Melo contends that he was not really disqualified; rather, the Comelec

“GRANTED” the petition of private re-

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65

1 “The express mention of the things included excludes those not included.”

German G. Lee, Jr.,Handbook of Legal Maxims, 2nd revised ed. (1998), p. 183.

2 The dispositive portion of the Resolution reads: “WHEREFORE, in view of the

foregoing, the Commission (FIRST DIVISION) GRANTS the Petition. Respondent

JOSE ‘Pe[m]pe’ MIRANDA is hereby DISQUALIFIED from running for the position of

mayor of Santiago City, Isabela, in the May 11, 1998 national and local elections.”

657

VOL. 311, JULY 28, 1999 657

Miranda vs. Abaya spondent who had prayed for the cancellation of Jose “Pempe”

Miranda’s certificate of candidacy.

I can concede that the Comelec Resolution is less than perfect; in

fact, it may even be termed as confusing or contradictory. I submit,

however, that such confusion should not be used to thwart the will of

the electorate. I believe that in every action involving the possibility of

a reversal of the popular electoral choice, this Court must exert

utmost effort to resolve the issues in a manner that would give effect

to the will of the people, for it is but sound public policy to cause

electoral offices to be filled by the choice of the electorate. We must

liberally construe election laws and jurisprudence to give fullest effect

to the manifest will of our people and to give life and meaning to their

mandate.3 In every election, the people’s choice is the paramount

consideration and their expressed will must, in every way possible, be

given effect.4

In the recent case Loong v. Comelec,5 the Court strongly exhorted

once more that the will of the people should not be “kick[ed] away x x

x by giving a literal interpretation to [the law].”6 “When the

sovereignty of the people is at stake, it is not enough for this Court to

make a statement but it should do everything to have that

sovereignty obeyed by all.”7

To buttress my Dissent, I hereby quote our en banc Decision

in Frivaldo v. Comelec:8

“At balance, the question really boils down to a choice of philosophy and

perception of how to interpret and apply laws relating to elections: literal or

liberal; the letter or the spirit; the naked provision or its ultimate purpose;

legal syllogism or substantial justice; in isolation or in the context of social

conditions; harshly against or gently in favor of the voters’ obvious choice. In

applying election laws, it would be far better to err in favor of popular

sovereignty than to be right in complex but little understood legalisms.”

[Emphasis supplied.]

Indeed, to inflict upon the electorate of Santiago City a person (the

vice mayor) whom they never voted for the position of mayor

constitutes, in my humble opinion, an unwarranted imposition on the

people and unacceptable assault to the judicial conscience.

WHEREFORE, I vote to GRANT the Petition.

Petition partly denied and partly granted.

Note.—Jurisdiction over a petition to cancel a certificate of

candidacy lies with the COMELEC sitting in Division, not en banc.

(Garvida vs. Sales, Jr., 271 SCRA 767 [1997])

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