Contents

Absentee Voting Act............................................................................................. 2

Dual Citizenship Act........................................................................................... 14
Makalintal v. Comelec........................................................................................ 16
Domino v. Comelec............................................................................................ 40
Japzon v. Comelec.............................................................................................. 50
Lewis v. Comelec................................................................................................ 62
AASJS v. Datumanong........................................................................................ 69
RA 7941 Partylist Act.......................................................................................... 74
Atienza v. Comelec............................................................................................. 78
BANAT v. Comelec.............................................................................................. 86
Atong Paglaum v. Comelec............................................................................... 112
Citizenship........................................................................................................ 143
Tecson v. Comelec............................................................................................ 144
Moya Lim Yao v. Commissioner of Immigration...............................................163
In Re Mallari..................................................................................................... 208
Aznar v. Comelec.............................................................................................. 212
Frivaldo v. Comelec.......................................................................................... 234
Frivaldo v. Comelec 1996.................................................................................241
Co v. HRET........................................................................................................ 260
Mercado v. Manzano......................................................................................... 309
Jacot v. Dal....................................................................................................... 319
Cordora v. Comelec.......................................................................................... 327
Caasi v. Comelec.............................................................................................. 335
Marcos v. Comelec........................................................................................... 339
Aquino v. Comelec............................................................................................ 355
Limbona v. Comelec......................................................................................... 366
Labo v. Comelec............................................................................................... 371
Maquiling v. Comelec....................................................................................... 382
Codilla v. Comelec............................................................................................ 420
Martinez v. HRET.............................................................................................. 443

Absentee Voting Act

Republic of the Philippines
Congress of the Philippines
Metro Manila
Twelfth Congress
Second Regular Session
Begun and held in Metro Manila, on Monday, the twenty-second day of July, two
thousand two.
Republic Act No. 9189

February 13, 2003

AN ACT PROVIDING FOR A SYSTEM OF OVERSEAS ABSENTEE VOTING BY QUALIFIED

CITIZENS OF THE PHILIPPINES ABROAD, APPROPRIATING FUNDS THEREFOR, AND
FOR OTHER PURPOSES
Be it enacted by the Senate and House of Representatives of the Philippines in
Congress assembled:
Section 1. Short Title. This Act shall be known as "The Overseas Absentee Voting
Act of 2003."
Sec. 2. Declaration of Policy. It is the prime duty of the State to provide a system
of honest and orderly overseas absentee voting that upholds the secrecy and
sanctity of the ballot. Towards this end, the State ensures equal opportunity to all
qualified citizens of the Philippines abroad in the exercise of this fundamental right.
Sec. 3. Definition of Terms. For purposes of this Act:
a. "Absentee Voting" refers to the process by which qualified citizens of the
Philippines abroad exercise their right to vote;
b. "Commission" refers to the Commission on Elections;
c. "Certified List of Overseas Absentee Voters" refers to the list of registered
overseas absentee voters whose applications to vote in absentia have been
approved by the Commission, said list to be prepared by the Committee on
Absentee Voting of the Commission, on a country-by-country basis. This list shall be
approved by the Commission in an en banc resolution;
d. "Day of Election" refers to the actual date of elections in the Philippines;
e. "National Registry of Absentee Voters" refers to the consolidated list prepared,
approved and maintained by the Commission, of overseas absentee voters whose
applications for registration as absentee voters, including those registered voters

who have applied to be certified as absentee voters, have been approved by the
Election Registered Board;
f. "Overseas Absentee Voter" refers to a citizen of the Philippines who is qualified to
register and vote under this Act, not otherwise disqualified by law, who is abroad on
the day of elections.
Sec. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise
disqualified by law, at least eighteen (18) years of age on the day of elections, may
vote for president, vice-president, senators and party-list representatives.
Sec. 5. Disqualifications. The following shall be disqualified from voting under this
Act:
1. Those who have lost their Filipino citizenship in accordance with Philippine laws;
2. Those who have expressly renounced their Philippine citizenship and who have
pledged allegiance to a foreign country;
3. Those who have committed and are convicted in a final judgment by a court or
tribunal of an offense punishable by imprisonment of not less than one (1) year,
including those who have committed and been found guilty of Disloyalty as defined
under Article 137 of the Revised Penal Code, such disability not having been
removed by plenary pardon or amnesty; Provided, however, That any person
disqualified to vote under this subsection shall automatically acquire the right to
vote upon expiration of five (5) years after service of sentence; Provided, further,
That the Commission may take cognizance of final judgments issued by foreign
courts or tribunals only on the basis of reciprocity and subject to the formalities and
processes prescribed by the Rules of Court on execution of judgments;
4. An immigrant or a permanent resident who is recognized as such in the host
country, unless he/she executes, upon registration, an affidavit prepared for the
purpose by the Commission declaring that he/she shall resume actual physical
permanent residence in the Philippines not later than three (3) years from approval
of his/her registration under this Act. Such affidavit shall also state that he/she has
not applied for citizenship in another country. Failure to return shall be the cause for
the removal of the name of the immigrant or permanent resident from the National
Registry of Absentee Voters and his/her permanent disqualification to vote in
absentia.
5. Any citizen of the Philippines abroad previously declared insane or incompetent
by competent authority in the Philippines or abroad, as verified by the Philippine
embassies, consulates or foreign service establishments concerned, unless such
competent authority subsequently certifies that such person is no longer insane or
incompetent.
Sec. 6. Personal Overseas Absentee Registration. Registration as an overseas
absentee voter shall be done in person.

Qualified citizens of the Philippines abroad who failed to register under Republic Act
No. 8189, otherwise known as the "The Voters Registration Act of 1996", may
personally apply for registration with the Election Registration Board of the city or
municipality where they were domiciled immediately prior to their departure from
the Philippines, or with the representative of the Commission at the Philippine
embassies, consulates and other foreign service establishments that have
jurisdiction over the locality where they temporarily reside. Subject to the specific
guidelines herein provided, the Commission is hereby authorized to prescribe
additional procedures for overseas absentee registration pursuant to the provisions
of Republic Act No. 8189, whenever applicable, taking into strict consideration the
time zones and the various periods and processes herein provided for the proper
implementation of this Act. The embassies, consulates and other foreign service
establishments shall transmit within (5) days from receipt the accomplished
registration forms to the Commission, after which the Commission shall coordinate
with the Election Officer of the city or municipality of the applicants stated
residence for verification, hearing and annotation in the permanent list of voters.
All applications for the May, 2004 elections shall be filed with the Commission not
later than two hundred eighty (280) calendar days before the day of elections. For
succeeding elections, the Commission shall provide for the period within which
applications to register must be filed.
In the case of seafarers, the Commission shall provide a special mechanism for the
time and manner of personal registration taking into consideration the nature of
their work.
6.1. Upon receipt of the application for registration, the Election Officer shall
immediately set the application for hearing, the notice of which shall be posted in a
conspicuous place in the premises of the city or municipal building of the applicants
stated residence for at least one (1) week before the date of the hearing. The
Election Officer shall immediately furnish a copy of the application to the designated
representatives of political parties and other accredited groups.
6.2. If no verified objection to the application is filed, the Election Officer shall
immediately forward the application to the Election Registration Board, which shall
decide on the application within one (1) week from the date of hearing without
waiting for the quarterly meeting of the Board. The applicant shall be notified of the
approval or disapproval of his/her application by registered mail.
6.3. In the event that an objection to the application is filed prior to or on the date
of hearing, the Election Officer shall notify the applicant of said objection by
registered mail, enclosing therein copies of affidavits or documents submitted in
support of the objection filed with the said Election Officer, if any. The applicant
shall have the right to file his counter-affidavit by registered mail, clearly stating
therein facts and defenses sworn before any officer in the host country authorized
to administer oaths.
6.4. The application shall be approved or disapproved based on the merits of the
objection, counter-affidavit and documents submitted by the party objecting and
those of the applicant.

6.5 A Certificate of Registration as an overseas absentee voter shall be issued by

the Commission to all applicants whose applications have been approved, including
those certified as registered voters. The Commission shall include the approved
applications in the National Registry of Absentee Voters.
6.6. If the application has been approved, any interested party may file a petition
for exclusion not later than two hundred ten (210) days before the day of elections
with the proper municipal or metropolitan trial court. The petition shall be decided
within fifteen (15) days after its filing on the basis of the documents submitted in
connection therewith. Should the court fail to render a decision within the
prescribed period, the ruling of the Election Registration Board shall be considered
affirmed.
6.7. If the application has been disapproved, the applicant or his authorized
representative shall, within a period of five (5) days from receipt of the notice of
disapproval, have the right to file a petition for inclusion with the proper municipal
or metropolitan trial court. The petition shall be decided within five (5) days after its
filing on the basis of documents submitted in connection therewith.
Qualified citizens of the Philippines abroad, who have previously registered as
voters pursuant to Republic Act No. 8189 shall apply for certification as absentee
voters and for inclusion in the National Registry of Overseas Absentee Voters, with a
corresponding annotation in the Certified Voters List.
Sec. 7. System of Continuing Registration. The Commission shall ensure that the
benefits of the system of continuing registration are extended to qualified overseas
absentee voters. Towards this end, the Commission shall optimize the use of
existing facilities, personnel and mechanisms of the various government agencies
for purposes of data gathering, data validation, information dissemination and
facilitation of the registration process.
Pre-departure programs, services and mechanisms offered and administered by the
Department of Foreign Affairs, Department of Labor and Employment, Philippine
Overseas Employment Administration, Overseas Workers Welfare Administration,
Commission on Filipinos Overseas and other appropriate agencies of the
government shall be utilized for purposes of supporting the overseas absentee
registration and voting processes, subject to limitations imposed by law.
Sec. 8. Requirements for Registration. Every Filipino registrant shall be required to
furnish the following documents:
a. A valid Philippine passport. In the absence of a valid passport, a certification of
the Department of Foreign Affairs that it has reviewed the appropriate documents
submitted by the applicant and found them sufficient to warrant the issuance of a
passport, or that the applicant is a holder of a valid passport but is unable to
produce the same for a valid reason;
b. Accomplished registration form prescribed by the Commission containing the
following mandatory information:

i. Last known residence of the applicant in the Philippines before leaving for abroad;
ii. Address of applicant abroad, or forwarding address in the case of seafarers;
iii. Where voting by mail is allowed, the applicants mailing address outside the
Philippines where the ballot for absentee voters will be sent, in proper cases; and;
iv. Name and address of applicants authorized representative in the Philippines for
purposes of Section 6.7 and Section 12 hereof.
c. In the case of immigrants and permanent residents not otherwise disqualified to
vote under this Act, an affidavit declaring the intention to resume actual physical
permanent residence in the Philippines not later than three (3) years after approval
of his/her registration as an overseas absentee voter under this Act. Such affidavit
shall also state that he/she has not applied for citizenship in another country.
The Commission may also require additional data to facilitate registration and
recording. No information other than those necessary to establish the identity and
qualification of the applicant shall be required.
Sec. 9. National Registry of Overseas Absentee Voters. The Commission shall
maintain a National Registry of Overseas Absentee Voters. Approved applications of
overseas absentee registrants shall also be included in the permanent list of voters
of the city or municipality where the registrant is domiciled, with the corresponding
annotation that such person has been registered or will be voting as an overseas
absentee voter. The registry shall also include those registered under Republic Act
No. 8189 and who have been issued certifications as overseas absentee voters. The
entries in the National Registry of Overseas Absentee Voters and the annotations as
overseas absentee voters in the Certified Voters List shall be permanent, and
cannot be cancelled or amended except in any of the following cases:
9.1. When the overseas absentee voter files a letter under oath addressed to the
Commission that he/she wishes to be removed from the Registry of Overseas
Absentee Voters, or that his/her name be transferred to the regular registry of
voters; or,
9.2. When an overseas absentee voters name was ordered removed by the
Commission from the Registry of Overseas Absentee Voters for his/her failure to
exercise his/her right to vote under this Act for two (2) consecutive national
elections.
Sec. 10. Notice of Registration and Election. The Commission shall, through the
embassies, consulates and other foreign service establishments, cause the
publication in a newspaper of general circulation of the place, date and time of the
holding of a regular or special national election and the requirements for the
participation of qualified citizens of the Philippines abroad, at least six (6) months
before the date set for the filing of applications for registration.

The Commission shall determine the countries where publication shall be made, and
the frequency thereof, taking into consideration the number of overseas Filipinos
present in such countries. Likewise, the Commission and the Department of Foreign
Affairs shall post the same in their respective websites.
Sec. 11. Procedure for Application to Vote in Absentia.
11.1. Every qualified citizen of the Philippines abroad whose application for
registration has been approved, including those previously registered under
Republic Act No. 8189, shall, in every national election, file with the officer of the
embassy, consulate or other foreign service establishment authorized by the
Commission, a sworn written application to vote in a form prescribed by the
Commission. The authorized officer of such embassy, consulate or other foreign
service establishment shall transmit to the Commission the said application to vote
within five (5) days from receipt thereof. The application form shall be accomplished
in triplicate and submitted together with the photocopy of his/her overseas
absentee voter certificate of registration.
11.2. Every application to vote in absentia may be done personally at, or by mail to,
the embassy, consulate or foreign service establishment, which has jurisdiction over
the country where he/she has indicated his/her address for purposes of the
elections.
11.3. Consular and diplomatic services rendered in connection with the overseas
absentee voting processes shall be made available at no cost to the overseas
absentee voter.
Sec. 12. Verification and Approval of Application to Vote. All applications shall be
acted upon by the Commission upon receipt thereof, but in no case later than one
hundred fifty (150) days before the day of elections. In the event of disapproval of
the application, the voter or his authorized representative may file a Motion for
Reconsideration with the Commission personally, or by registered mail, within ten
(10) days from receipt of the notice of disapproval. The Commission shall act within
five (5) days from receipt of such Motion for Reconsideration and shall immediately
notify the voter of its decision. The decision of the Commission shall be final and
executory.
The Commission shall issue an overseas absentee voter identification card to those
whose applications to vote have been approved.
Sec. 13. Preparation and Posting of Certified List of Overseas Absentee Voters. The
Commission shall prepare the Certified List of Overseas Absentee Voters within one
hundred twenty (120) days before every election, and furnish within the same
period copies thereof to the appropriate embassies, consulates and other foreign
service establishments, which shall post the same in their bulletin boards within ten
(10) days from receipt thereof.
Subject to reasonable regulation and the payment of fees in such amounts as may
be fixed by the Commission, the candidates, political parties, accredited citizens

arms, interested persons and all embassies, consulates and other foreign service
establishments shall be furnished copies thereof.
Sec. 14. Printing and Transmittal of Ballots, Voting Instructions, Election Forms and
Paraphernalia.
14.1. The Commission shall cause the printing of ballots for overseas absentee
voters, voting instructions, and election forms in such number as may be necessary,
but in no case shall it exceed the total number of approved applications. Security
markings shall be used in the printing of ballots for overseas absentee voters.
14.2. The Commission shall present to the authorized representatives of the
Department of Foreign Affairs and the accredited major political parties the ballots
for overseas absentee voters, voting instructions, election forms and other election
paraphernalia for scrutiny and inspection prior to their transmittal to the embassies,
consulates and other foreign service establishments concerned.
14.3. The Commission shall, not later than seventy-five (75) days before the day of
elections, transmit by special pouch to the embassies, consulates and other foreign
service establishments, the exact number of ballots for overseas absentee voters
corresponding to the number of approved applications, along with such materials
and election paraphernalia necessary to ensure the secrecy and integrity of the
election.
14.4. The authorized representatives of accredited major political parties shall have
the right to be present in all phases of printing, transmittal, and casting of ballots
abroad. Unclaimed ballots properly marked as such, shall be cancelled and shipped
to the Commission by the least costly method.
Sec. 15. Regulation on Campaigning Abroad. The use of campaign materials, as
well as the limits on campaign spending shall be governed by the laws and
regulations applicable in the Philippines.
Sec. 16. Casting and Submission of Ballots.
16.1. Upon receipt by the designated officer of the embassy, consulate and other
foreign service establishments of the ballots for overseas absentee voters, voting
instructions, election forms and other paraphernalia, he/she shall make them
available on the premises to the qualified overseas absentee voters in their
respective jurisdictions during the thirty (30) days before the day of elections when
overseas absentee voters may cast their vote. Immediately upon receiving it, the
overseas absentee voter must fill-out his/her ballot personally, in secret, without
leaving the premises of the embassies, consulates and other foreign service
establishments concerned.
16.2. The overseas absentee voter shall personally accomplish his/her ballot at the
embassy, consulate or other foreign service establishment that has jurisdiction over
the country where he/she temporarily resides or at any polling place designated and
accredited by the Commission.

16.3. The overseas absentee voter shall cast his ballot, upon presentation of the
absentee voter identification card issued by the Commission, within thirty (30) days
before the day of elections. In the case of seafarers, they shall cast their ballots
anytime within sixty (60) days before the day of elections as prescribed in the
Implementing Rules and Guidelines.
16.4. All accomplished ballots received shall be placed unopened inside sealed
containers and kept in a secure place designated by the Commission.
16.5. The embassies, consulates and other foreign service establishments
concerned shall keep a complete record of the ballots for overseas absentee voters,
specifically indicating the number of ballots they actually received, and in cases
where voting by mail is allowed under Section 17 hereof, the names and addresses
of the voters to whom these ballots were sent, including proof of receipt thereof. In
addition, the embassies, consulates and other foreign service establishments shall
submit a formal report to the Commission and the Joint Congressional Oversight
Committee created under this Act within thirty (30) days from the day of elections.
Such report shall contain data on the number of ballots cast and received by the
offices, the number of invalid and unclaimed ballots and other pertinent data.
16.6. The overseas absentee voter shall be instructed that his/her ballot shall not be
counted if it is not inside the special envelope furnished him/her when it is cast.
16.7. Ballots not claimed by the overseas absentee voters at the embassies,
consulates and other foreign service establishments, in case of personal voting, and
ballots returned to the embassies, consulates and other foreign service
establishments concerned, in the case of voting by mail, shall be cancelled and
shipped to the Commission by the least costly method within six (6) months from
the day of elections.
16.8. Only ballots cast, and mailed ballots received by the Philippine embassies,
consulates and other foreign service establishments concerned in accordance with
Section 17 hereof before the close of voting on the day of elections shall be counted
in accordance with Section 18 hereof. All envelopes containing the ballots received
by the embassies, consulates and other foreign service establishments after the
prescribed period shall not be opened, and shall be cancelled and shipped to the
Commission by the least costly method within six (6) months from the day of
elections.
16.9. A Special Ballot Reception and Custody Group composed of three (3) members
shall be constituted by the Commission from among the staff of the embassies,
consulates and other foreign service establishments concerned, including their
attached agencies, and citizens of the Philippines abroad, who will be deputized to
receive ballots and take custody of the same preparatory to their transmittal to the
Special Boards of Election Inspectors.
16.10. During this phase of the election process, the authorized representatives of
the political parties, candidates, and accredited citizens arms of the Commission
shall be notified in writing thereof and shall have the right to witness the
proceedings.

16.11. The Commission shall study the use of electronic mail, Internet, or other
secured networks in the casting of votes, and submit a report thereon to the Joint
Congressional Oversight Committee.
Sec. 17. Voting by Mail.
17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in
not more than three (3) countries, subject to the approval of the Congressional
Oversight Committee. Voting by mail may be allowed in countries that satisfy the
following conditions:
a. Where the mailing system is fairly well-developed and secure to prevent the
occasion of fraud;
b. Where there exists a technically established identification system that would
preclude multiple or proxy voting; and,
c. Where the system of reception and custody of mailed ballots in the embassies,
consulates and other foreign service establishments concerned are adequate and
well-secured.
Thereafter, voting by mail in any country shall be allowed only upon review and
approval of the Joint Congressional Oversight Committee.
17.2. The overseas absentee voters shall send his/her accomplished ballot to the
corresponding embassy, consular or other foreign service establishment that has
jurisdiction over the country where he/she temporarily resides. He/She shall be
entitled to cast his/her ballot at any time upon his/her receipt thereof, provided that
the same Is received before the close of voting on the day of elections. The
overseas absentee voter shall be instructed that his/her ballot shall not be counted
if not transmitted in the special envelope furnished him/her.
17.3. Only mailed ballots received by the Philippine embassy, consulate and other
foreign service establishments before the close of voting on the day of elections
shall be counted in accordance with Section 18 hereof. All envelopes containing the
ballots received by the embassies, consulates and other foreign service
establishments after the prescribed period shall not be opened, and shall be
cancelled and disposed of appropriately, with a corresponding report thereon
submitted to the Commission not later than thirty (30) days from the day of
elections.
Sec. 18. On-Site Counting and Canvassing.
18.1. The counting and canvassing of votes shall be conducted on site in the
country where the votes were actually cast. The opening of the specially-marked
envelopes containing the ballots and the counting and canvassing of votes shall be
conducted within the premises of the embassies, consulates and other foreign
service establishments or in such other places as may be designated by the
Commission pursuant to the Implementing Rules and Regulations. The Commission

shall ensure that the start of counting in all polling places abroad shall be
synchronized with the start of counting in the Philippines.
18.2. For these purposes, the Commission shall constitute as many Special Boards
of Election Inspectors as may be necessary to conduct and supervise the counting
of votes as provided in Section 18.2 hereof. The Special Boards of Election
Inspectors to be constituted herein shall be composed of a Chairman and two (2)
members, one (1) of whom shall be designated as poll clerk. The ambassador or
consul-general, or any career public officer posted abroad designated by the
Commission, as the case may be, shall act as the chairman; in the absence of other
government officers, the two (2) other members shall be citizens of the Philippines
who are qualified to vote under this act and deputized by the Commission not later
than sixty (60) days before the day of elections. All resolutions of the Special Board
of Election Inspectors on issues brought before it during the conduct of its
proceedings shall be valid only when they carry the approval of the chairman.
Immediately upon the completion of the counting, the Special Boards of Election
Inspectors shall transmit via facsimile and/or electronic mail the results to the
Commission in Manila and the accredited major political parties.
18.3. Only ballots cast on, or received by the embassies, consulates and other
foreign service establishments before the close of voting on the day of elections
shall be included in the counting of votes. Those received afterwards shall not be
counted.
18.4. A Special Board of Canvassers composed of a lawyer preferably of the
Commission as chairman, a senior career officer from any of the government
agencies maintaining a post abroad and, in the absence of another government
officer, a citizen of the Philippines qualified to vote under this Act deputized by the
Commission, as vice-chairman and member-secretary, respectively, shall be
constituted to canvass the election returns submitted to it by the Special Boards of
Election Inspectors. Immediately upon the completion of the canvass, the chairman
of the Special Board of Canvassers shall transmit via facsimile, electronic mail, or
any other means of transmission equally safe and reliable the Certificates of
Canvass and the Statements of Votes to the Commission, and shall cause to
preserve the same immediately after the conclusion of the canvass, and make it
available upon instructions of the Commission. The Special Board of Canvassers
shall also furnish the accredited major political parties and accredited citizens arms
with copies thereof via facsimile, electronic mail and any other means of
transmission equally safe, secure and reliable.
The Certificates of Canvass and the accompanying Statements of Votes as
transmitted via facsimile, electronic mail and any other means of transmission
equally safe, secure and reliable shall be the primary basis for the national canvass.
18.5. The canvass of votes shall not cause the delay of the proclamation of a
winning candidate if the outcome of the election will not be affected by the results
thereof. Notwithstanding the foregoing, the Commission is empowered to order the
proclamation of winning candidates despite the fact that the scheduled election has
not taken place in a particular country or countries, if the holding of elections

therein has been rendered impossible by events, factors and circumstances peculiar
to such country or countries, and which events, factors and circumstances are
beyond the control or influence of the Commission.
18.6. In the preparation of the final tally of votes on the results of the national
elections, the Commission shall ensure that the votes canvassed by each and every
country shall be reflected as a separate item from the tally of national votes. For
purposes of this Act, the returns of every election for president and vice-president
prepared by the Special Board of Canvassers shall be deemed a certificate of
canvass of a city or province.
18.7. Where feasible, the counting and canvassing of votes shall be automated.
Towards this end, the Commission is hereby authorized to borrow, rent, lease or
acquire automated voting machines for purposes of canvassing and counting of
votes pursuant to the provisions of this Act, and in accordance with the
Implementing Rules and Regulations promulgated by the Commission.
Sec. 19. Authority of the Commission to Promulgate Rules. The Commission shall
issue the necessary rules and regulations to effectively implement the provisions of
this Act within sixty (60) days from the effectivity of this Act. The Implementing
Rules and Regulations shall be submitted to the Joint Congressional Oversight
Committee created by virtue of this Act for prior approval.
In the formulation of the rules and regulations, the Commission shall coordinate
with the Department of Foreign Affairs, Department of Labor and Employment,
Philippine Overseas and Employment Administration, Overseas Workers Welfare
Administration and the Commission on Filipinos Overseas. Non-government
organizations and accredited Filipino organizations or associations abroad shall be
consulted.
Sec. 20. Information Campaign. The Commission, in coordination with agencies
concerned, shall undertake an information campaign to educate the public on the
manner of absentee voting for qualified overseas absentee voters. It may require
the support and assistance of the Department of Foreign Affairs, through the
embassies, consulates and other foreign service establishments, Department of
Labor and employment, Department of Transportation and Communications,
Philippine Postal Corporation, Philippine Overseas Employment Administration,
Overseas Workers Welfare Administration and the Commission on Filipinos
Overseas. The Commission may deputize Filipino organizations/associations
overseas for the same purpose: Provided, That any such deputized
organization/association shall be prohibited from participating in the elections by
campaigning for or fielding candidates; Provided, further, That if any such deputized
organization/association is discovered to have a member who is not a qualified
overseas absentee voter as herein defined, such deputized organization/association
shall be banned from participating in any manner, and at any stage, in the
Philippine political process abroad.
Such information campaign shall educate the Filipino public, within and outside the
Philippines, on the rights of overseas absentee voters, absentee voting processes
and other related concerns. Information materials shall be developed by the

Commission for distribution, through the said government agencies and private
organizations. No government agency or accredited private organizations shall
prepare, print, distribute or post in websites any information material without the
prior approval of the Commission.
Sec. 21. Access to Official Records and Documents. Subject to the pertinent
provisions of this Act, any person shall have the right to access and/or copy at his
expense all registration records, voters lists and other official records and
documents, subject to reasonable regulations as may be imposed by the
Commission.
Sec. 22. Assistance from Government Agencies. All government officers,
particularly from the Department of Foreign Affairs, Department of Labor and
Employment, Department of Transportation and Communications, Philippine Postal
Corporation, Philippine Overseas Employment Administration, Overseas Workers
Welfare Administration, Commission on Filipinos Overseas and other government
offices concerned with the welfare of the Filipinos overseas shall, to the extent
compatible with their primary responsibilities, assist the Commission in carrying out
the provisions of this Act. All such agencies or officers thereof shall take reasonable
measures to expedite all election activities, which the Commission shall require of
them. When necessary, the Commission may send supervisory teams headed by
career officers to assist the embassies, consulates and other foreign service
establishment concerned.
Sec. 23. Security Measures to Safeguard the Secrecy and Sanctity of Ballots. At all
stages of the electoral process, the Commission shall ensure that the secrecy and
integrity of the ballots are preserved. The Committee on Absentee Voting of the
Commission shall be responsible for ensuring the secrecy and sanctity of the
absentee voting process. In the interest of transparency, all necessary and
practicable measures shall be adopted to allow representation of the candidates,
accredited major political parties, accredited citizens arms and non-government
organizations to assist, and intervene in appropriate cases, in all stages of the
electoral exercise and to prevent any and all forms of fraud and coercion.
No officer or member of the foreign service corps, including those belonging to
attached agencies shall be transferred, promoted, extended, recalled or otherwise
moved from his current post or position one (1) year before and three (3) months
after the day of elections, except upon the approval of the Commission.
Sec. 24. Prohibited Acts. In addition to the prohibited acts provided by law, it shall
be unlawful:
24.1. For any officer or employee of the Philippine government to influence or
attempt to influence any person covered by this Act to vote, or not to vote, for a
particular candidate. Nothing in this Act shall be deemed to prohibit free discussion
regarding politics or candidates for public office.
24.2. For any person to deprive any person of any right secured in this Act, or to
give false information as to his/her name, address, or period of residence for the
purposes of establishing his/her eligibility or ineligibility to register or vote under

this Act; or to conspire with another person for the purpose of encouraging the
giving of false information in order to establish the eligibility or ineligibility of any
individual to register or vote under this Act; or, to pay, or offer to pay, or to accept
payment either for application to vote in absentia or for voting;
24.3. For any person to tamper with the ballot, the mail containing the ballots for
overseas absentee voters, the election returns, including the destruction, mutilation
and manipulation thereof;
24.4. For any person to steal, destroy, conceal, mutilate or alter any record,
document or paper as required for purposes of this Act;
24.5. For any deputized agent to refuse without justifiable ground, to serve or
continue serving, or to comply with his/her sworn duties after acceptance of his/her
appointment;
24.6. For any public officer or employee who shall cause the preparation, printing,
distribution of information material, or post the same in websites without the prior
approval of the Commission;
24.7. For any public officer or employee to cause the transfer, promotion, extension,
recall of any member of the foreign service corps, including members of the
attached agencies, or otherwise cause the movement of any such member from his
current post or position one (1) year before and three (3) months after the day of
elections, without securing the prior approval of the Commission;
24.8. For any person who, after being deputized by the Commission to undertake
activities in connection with the implementation of this Act, shall campaign for or
assist, in whatever manner, candidates in the elections;
24.9. For any person who is not a citizen of the Philippines to participate, by word or
deed, directly or indirectly through qualified organizations/associations, in any
manner and at any stage of the Philippine political process abroad, including
participation in the campaign and elections.
The provision of existing laws to the contrary notwithstanding, and with due regard
to the Principle of Double Criminality, the prohibited acts described in this section
are electoral offenses and punishable in the Philippines.
The penalties imposed under Section 264 of the Omnibus Election Code, as
amended, shall be imposed on any person found guilty of committing any of the
prohibited acts as defined in this section: Provided, That the penalty of prision
mayor in its minimum period shall be imposed upon any person found guilty of
Section 24.3 hereof without the benefit of the operation of the Indeterminate
Sentence Law. If the offender is a public officer or a candidate, the penalty shall be
prision mayor in its maximum period. In addition, the offender shall be sentenced to
suffer perpetual disqualification to hold public office and deprivation of the right to
vote.

Immigrants and permanent residents who do not resume residence in the

Philippines as stipulated in their affidavit under Section 5(d) within three (3) years
after approval of his/her registration under this Act and yet vote in the next
elections contrary to the said section, shall be penalized by imprisonment of not
less than one (1) year, and shall be deemed disqualified as provided in Section 5(c)
of this Act. His/her passport shall be stamped "not allowed to vote".
Sec. 25. Joint Congressional Oversight Committee. A Joint Congressional Oversight
Committee is hereby created, composed of the Chairman of the Senate Committee
on Constitutional Amendments, Revision of Codes and Laws, and seven (7) other
Senators designated by the Senate President, and the Chairman of the House
Committee on Suffrage and Electoral Reforms, and seven (7) other Members of the
House of Representatives designated by the Speaker of the House of
Representatives: Provided, That, of the seven (7) members to be designated by
each House of Congress, four (4) should come from the majority and the remaining
three (3) from the minority.
The Joint Congressional Oversight Committee shall have the power to monitor and
evaluate the implementation of this Act. It shall review, revise, amend and approve
the Implementing Rules and Regulations promulgated by the Commission.
Sec. 26. Applicability of Other Election Laws. The pertinent provisions of the
Omnibus Election Code, as amended, and other election laws, which are not in
conflict with the provisions of this Act shall remain in full force and shall have
suppletory application to this Act.
Sec. 27. Enforcement and Administration by the Commission. The Commission
shall, for the purpose of ensuring honest, orderly, peaceful and free elections
abroad, have exclusive charge of the enforcement, administration and
implementation of this Act.
Sec. 28. Mandatory Review. Congress shall complete a mandatory review of this
Act within two (2) years following the May, 2004 elections for the purpose of
amending it to expand or restrict its coverage, scope and application, as well as
improve its procedures and institute measures and safeguards, taking into account
the experience of the previous election, technological advances and structural
political changes.
Sec. 29. Appropriations. The amount necessary to carry out the provisions of this
Act shall be provided in a supplemental budget or included in the General
Appropriations Act of the year of its enactment into law. Thereafter, the expenses
for its continued implementation shall be included in the subsequent General
Appropriations Act.
Sec. 30. Separability Clause. If any part or provision of this Act shall be declared
unconstitutional or invalid, other provisions hereof which are not affected thereby
shall continue to be in full force and effect.

Sec. 31. Repealing Clause. All laws, presidential decrees, executive orders, rules
and regulations, other issuances, and parts thereof, which are inconsistent with the
provisions of this Act, are hereby repealed or modified accordingly.
Sec. 32. Effectivity. This Act shall take effect fifteen (15) days following its
publication in three (3) newspapers of general circulation.
Dual Citizenship Act
Congress of the Philippines
Twelfth Congress
Third Regular Session
Begun held in Metro Manila on Monday, the twenty-eighth day of July, two thousand
three.

Republic Act No. 9225

August 29, 2003

AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS WHO ACQUIRE FOREIGN

CITIZENSHIP PERMANENT.
AMENDING FOR THE PURPOSE COMMONWEALTH ACT. NO. 63, AS AMENDED AND
FOR OTHER PURPOSES
Be it enacted by the Senate and House of Representatives of the Philippines in
Congress assembled:
Section 1. Short Title this act shall be known as the "Citizenship Retention and Reacquisition Act of 2003."
Section 2. Declaration of Policy - It is hereby declared the policy of the State that all
Philippine citizens of another country shall be deemed not to have lost their
Philippine citizenship under the conditions of this Act.
Section 3. Retention of Philippine Citizenship - Any provision of law to the contrary
notwithstanding, natural-born citizenship by reason of their naturalization as
citizens of a foreign country are hereby deemed to have re-acquired Philippine
citizenship upon taking the following oath of allegiance to the Republic:
"I _____________________, solemny swear (or affrim) 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 imposed this obligation upon
myself voluntarily without mental reservation or purpose of evasion."

Natural born citizens of the Philippines who, after the effectivity of this Act, become
citizens of a foreign country shall retain their Philippine citizenship upon taking the
aforesaid oath.
Section 4. Derivative Citizenship - The unmarried child, whether legitimate,
illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire
Philippine citizenship upon effectivity of this Act shall be deemed citizenship of the
Philippines.
Section 5. Civil and Political Rights and Liabilities - 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:
(1) Those intending to exercise their right of surffrage must Meet the requirements
under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise
known as "The Overseas Absentee Voting Act of 2003" and other existing laws;
(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;
(3) Those appointed to any public office shall subscribe and swear to an oath of
allegiance to the Republic of the Philippines and its duly constituted authorities prior
to their assumption of office: Provided, That they renounce their oath of allegiance
to the country where they took that oath;
(4) Those intending to practice their profession in the Philippines shall apply with
the proper authority for a license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public office in the
Philippines cannot be exercised by, or extended to, those who:
(a) are candidates for or are occupying any public office in the country of which they
are naturalized citizens; and/or
(b) are in active service as commissioned or non-commissioned officers in the
armed forces of the country which they are naturalized citizens.
Section 6. Separability Clause - If any section or provision of this Act is held
unconstitutional or invalid, any other section or provision not affected thereby shall
remain valid and effective.
Section 7. Repealing Clause - All laws, decrees, orders, rules and regulations
inconsistent with the provisions of this Act are hereby repealed or modified
accordingly.

Section 8. Effectivity Clause This Act shall take effect after fifteen (15) days
following its publication in the Official Gazette or two (2) newspaper of general
circulation.
Makalintal v. Comelec
EN BANC
[G.R. No. 157013. July 10, 2003]
ATTY. ROMULO B. MACALINTAL, petitioner, vs. COMMISSION ON ELECTIONS, HON.
ALBERTO ROMULO, in his official capacity as Executive Secretary, and HON. EMILIA
T. BONCODIN, Secretary of the Department of Budget and Management,
respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari and prohibition filed by Romulo B.
Macalintal, a member of the Philippine Bar, seeking a declaration that certain
provisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of 2003)[1]
suffer from constitutional infirmity. Claiming that he has actual and material legal
interest in the subject matter of this case in seeing to it that public funds are
properly and lawfully used and appropriated, petitioner filed the instant petition as a
taxpayer and as a lawyer.
The Court upholds the right of petitioner to file the present petition.
R.A. No. 9189, entitled, An Act Providing for A System of Overseas Absentee Voting
by Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and
for Other Purposes, appropriates funds under Section 29 thereof which provides
that a supplemental budget on the General Appropriations Act of the year of its
enactment into law shall provide for the necessary amount to carry out its
provisions. Taxpayers, such as herein petitioner, have the right to restrain officials
from wasting public funds through the enforcement of an unconstitutional statute.
[2] The Court has held that they may assail the validity of a law appropriating
public funds[3] because expenditure of public funds by an officer of the State for the
purpose of executing an unconstitutional act constitutes a misapplication of such
funds.[4]
The challenged provision of law involves a public right that affects a great number
of citizens. The Court has adopted the policy of taking jurisdiction over cases
whenever the petitioner has seriously and convincingly presented an issue of
transcendental significance to the Filipino people.
This has been explicitly
pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs.
Tan,[5] where the Court held:
Objections to taxpayers suit for lack of sufficient personality standing, or interest
are, however, in the main procedural matters. Considering the importance to the
public of the cases at bar, and in keeping with the Courts duty, under the 1987
Constitution, to determine whether or not the other branches of government have
kept themselves within the limits of the Constitution and the laws and that they

have not abused the discretion given to them, the Court has brushed aside
technicalities of procedure and has taken cognizance of these petitions.[6]
Indeed, in this case, the Court may set aside procedural rules as the constitutional
right of suffrage of a considerable number of Filipinos is involved.
The question of propriety of the instant petition which may appear to be visited by
the vice of prematurity as there are no ongoing proceedings in any tribunal, board
or before a government official exercising judicial, quasi-judicial or ministerial
functions as required by Rule 65 of the Rules of Court, dims in light of the
importance of the constitutional issues raised by the petitioner. In Taada vs.
Angara,[7] the Court held:
In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable controversy.
Where an action of the legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to
settle the dispute. The question thus posed is judicial rather than political. The
duty (to adjudicate) remains to assure that the supremacy of the Constitution is
upheld. Once a controversy as to the application or interpretation of constitutional
provision is raised before this Court (as in the instant case), it becomes a legal issue
which the Court is bound by constitutional mandate to decide.
In another case of paramount impact to the Filipino people, it has been expressed
that it is illogical to await the adverse consequences of the law in order to consider
the controversy actual and ripe for judicial resolution.[8] In yet another case, the
Court said that:
. . . despite the inhibitions pressing upon the Court when confronted with
constitutional issues, it will not hesitate to declare a law or act invalid when it is
convinced that this must be done. In arriving at this conclusion, its only criterion will
be the Constitution and God as its conscience gives it in the light to probe its
meaning and discover its purpose. Personal motives and political considerations are
irrelevancies that cannot influence its decisions. Blandishment is as ineffectual as
intimidation, for all the awesome power of the Congress and Executive, the Court
will not hesitate to make the hammer fall heavily, where the acts of these
departments, or of any official, betray the peoples will as expressed in the
Constitution . . .[9]
The need to consider the constitutional issues raised before the Court is further
buttressed by the fact that it is now more than fifteen years since the ratification of
the 1987 Constitution requiring Congress to provide a system for absentee voting
by qualified Filipinos abroad. Thus, strong reasons of public policy demand that the
Court resolves the instant petition[10] and determine whether Congress has acted
within the limits of the Constitution or if it had gravely abused the discretion
entrusted to it.[11]
The petitioner raises three principal questions:

A.
Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who
are immigrants or permanent residents in other countries by their mere act of
executing an affidavit expressing their intention to return to the Philippines, violate
the residency requirement in Section 1 of Article V of the Constitution?
B.
Does Section 18.5 of the same law empowering the COMELEC to proclaim the
winning candidates for national offices and party list representatives including the
President and the Vice-President violate the constitutional mandate under Section 4,
Article VII of the Constitution that the winning candidates for President and the VicePresident shall be proclaimed as winners by Congress?
C.
May Congress, through the Joint Congressional Oversight Committee created
in Section 25 of Rep. Act No. 9189, exercise the power to review, revise, amend, and
approve the Implementing Rules and Regulations that the Commission on Elections
shall promulgate without violating the independence of the COMELEC under Section
1, Article IX-A of the Constitution?
The Court will resolve the questions in seriatim.
A.
Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the
1987 Constitution of the Republic of the Philippines?
Section 5(d) provides:
Sec. 5. Disqualifications. The following shall be disqualified from voting under this
Act:
...

...

...

d) An immigrant or a permanent resident who is recognized as such in the host

country, unless he/she executes, upon registration, an affidavit prepared for the
purpose by the Commission declaring that he/she shall resume actual physical
permanent residence in the Philippines not later than three (3) years from approval
of his/her registration under this Act. Such affidavit shall also state that he/she has
not applied for citizenship in another country. Failure to return shall be cause for the
removal of the name of the immigrant or permanent resident from the National
Registry of Absentee Voters and his/her permanent disqualification to vote in
absentia.
Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1,
Article V of the 1987 Constitution which requires that the voter must be a resident
in the Philippines for at least one year and in the place where he proposes to vote
for at least six months immediately preceding an election. Petitioner cites the ruling
of the Court in Caasi vs. Court of Appeals[12] to support his claim. In that case, the
Court held that a green card holder immigrant to the United States is deemed to
have abandoned his domicile and residence in the Philippines.
Petitioner further argues that Section 1, Article V of the Constitution does not allow
provisional registration or a promise by a voter to perform a condition to be
qualified to vote in a political exercise;[13] that the legislature should not be

allowed to circumvent the requirement of the Constitution on the right of suffrage

by providing a condition thereon which in effect amends or alters the aforesaid
residence requirement to qualify a Filipino abroad to vote.[14] He claims that the
right of suffrage should not be granted to anyone who, on the date of the election,
does not possess the qualifications provided for by Section 1, Article V of the
Constitution.
Respondent COMELEC refrained from commenting on this issue.[15]
In compliance with the Resolution of the Court, the Solicitor General filed his
comment for all public respondents.
He contraposes that the constitutional
challenge to Section 5(d) must fail because of the absence of clear and
unmistakable showing that said provision of law is repugnant to the Constitution.
He stresses: All laws are presumed to be constitutional; by the doctrine of
separation of powers, a department of government owes a becoming respect for the
acts of the other two departments; all laws are presumed to have adhered to
constitutional limitations; the legislature intended to enact a valid, sensible, and
just law.
In addition, the Solicitor General points out that Section 1, Article V of the
Constitution is a verbatim reproduction of those provided for in the 1935 and the
1973 Constitutions. Thus, he cites Co vs. Electoral Tribunal of the House of
Representatives[16] wherein the Court held that the term residence has been
understood to be synonymous with domicile under both Constitutions. He further
argues that a person can have only one domicile but he can have two residences,
one permanent (the domicile) and the other temporary;[17] and that the definition
and meaning given to the term residence likewise applies to absentee voters.
Invoking Romualdez-Marcos vs. COMELEC[18] which reiterates the Courts ruling in
Faypon vs. Quirino,[19] the Solicitor General maintains that Filipinos who are
immigrants or permanent residents abroad may have in fact never abandoned their
Philippine domicile.[20]
Taking issue with the petitioners contention that green card holders are
considered to have abandoned their Philippine domicile, the Solicitor General
suggests that the Court may have to discard its ruling in Caasi vs. Court of
Appeals[21] in so far as it relates to immigrants and permanent residents in foreign
countries who have executed and submitted their affidavits conformably with
Section 5(d) of R.A. No. 9189. He maintains that through the execution of the
requisite affidavits, the Congress of the Philippines with the concurrence of the
President of the Republic had in fact given these immigrants and permanent
residents the opportunity, pursuant to Section 2, Article V of the Constitution, to
manifest that they had in fact never abandoned their Philippine domicile; that
indubitably, they would have formally and categorically expressed the requisite
intentions, i.e., animus manendi and animus revertendi; that Filipino immigrants
and permanent residents abroad possess the unquestionable right to exercise the
right of suffrage under Section 1, Article V of the Constitution upon approval of their
registration, conformably with R.A. No. 9189.[22]

The seed of the present controversy is the interpretation that is given to the phrase,
qualified citizens of the Philippines abroad as it appears in R.A. No. 9189, to wit:
SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a system
of honest and orderly overseas absentee voting that upholds the secrecy and
sanctity of the ballot. Towards this end, the State ensures equal opportunity to all
qualified citizens of the Philippines abroad in the exercise of this fundamental right.
SEC. 3. Definition of Terms. For purposes of this Act:
a)
Absentee Voting refers to the process by which qualified citizens of the
Philippines abroad, exercise their right to vote;
. . . (Emphasis supplied)
f)
Overseas Absentee Voter refers to a citizen of the Philippines who is
qualified to register and vote under this Act, not otherwise disqualified by law, who
is abroad on the day of elections. (Emphasis supplied)
SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise
disqualified by law, at least eighteen (18) years of age on the day of elections, may
vote for president, vice-president, senators and party-list representatives.
(Emphasis supplied)
in relation to Sections 1 and 2, Article V of the Constitution which read:
SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have
resided in the Philippines for at least one year and in the place wherein they
propose to vote for at least six months immediately preceding the election. No
literacy, property, or other substantive requirement shall be imposed on the
exercise of suffrage.
SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity
of the ballot as well as a system for absentee voting by qualified Filipinos abroad.
...

...

. . . (Emphasis supplied)

Section 1, Article V of the Constitution specifically provides that suffrage may be

exercised by (1) all citizens of the Philippines, (2) not otherwise disqualified by law,
(3) at least eighteen years of age, (4) who are residents in the Philippines for at
least one year and in the place where they propose to vote for at least six months
immediately preceding the election. Under Section 5(d) of R.A. No. 9189, one of
those disqualified from voting is an immigrant or permanent resident who is
recognized as such in the host country unless he/she executes an affidavit declaring
that he/she shall resume actual physical permanent residence in the Philippines not
later than three years from approval of his/her registration under said Act.
Petitioner questions the rightness of the mere act of execution of an affidavit to
qualify the Filipinos abroad who are immigrants or permanent residents, to vote. He

focuses solely on Section 1, Article V of the Constitution in ascribing constitutional

infirmity to Section 5(d) of R.A. No. 9189, totally ignoring the provisions of Section 2
empowering Congress to provide a system for absentee voting by qualified Filipinos
abroad.
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the
impression that it contravenes Section 1, Article V of the Constitution. Filipino
immigrants and permanent residents overseas are perceived as having left and
abandoned the Philippines to live permanently in their host countries and therefore,
a provision in the law enfranchising those who do not possess the residency
requirement of the Constitution by the mere act of executing an affidavit expressing
their intent to return to the Philippines within a given period, risks a declaration of
unconstitutionality. However, the risk is more apparent than real.
The Constitution is the fundamental and paramount law of the nation to which all
other laws must conform and in accordance with which all private rights must be
determined and all public authority administered.[23] Laws that do not conform to
the Constitution shall be stricken down for being unconstitutional.
Generally, however, all laws are presumed to be constitutional.
COMELEC, the Court said:

In Peralta vs.

. . . An act of the legislature, approved by the executive, is presumed to be within

constitutional limitations. The responsibility of upholding the Constitution rests not
on the courts alone but on the legislature as well. The question of the validity of
every statute is first determined by the legislative department of the government
itself.[24]
Thus, presumption of constitutionality of a law must be overcome convincingly:
. . . To declare a law unconstitutional, the repugnancy of that law to the Constitution
must be clear and unequivocal, for even if a law is aimed at the attainment of some
public good, no infringement of constitutional rights is allowed. To strike down a law
there must be a clear showing that what the fundamental law condemns or
prohibits, the statute allows it to be done.[25]
As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it
behooves the Court to take a holistic view of the pertinent provisions of both the
Constitution and R.A. No. 9189. It is a basic rule in constitutional construction that
the Constitution should be construed as a whole. In Chiongbian vs. De Leon,[26]
the Court held that a constitutional provision should function to the full extent of its
substance and its terms, not by itself alone, but in conjunction with all other
provisions of that great document. Constitutional provisions are mandatory in
character unless, either by express statement or by necessary implication, a
different intention is manifest.[27] The intent of the Constitution may be drawn
primarily from the language of the document itself. Should it be ambiguous, the
Court may consider the intent of its framers through their debates in the
constitutional convention.[28]

R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of
Section 2, Article V of the Constitution that Congress shall provide a system for
voting by qualified Filipinos abroad. It must be stressed that Section 2 does not
provide for the parameters of the exercise of legislative authority in enacting said
law. Hence, in the absence of restrictions, Congress is presumed to have duly
exercised its function as defined in Article VI (The Legislative Department) of the
Constitution.
To put matters in their right perspective, it is necessary to dwell first on the
significance of absentee voting. The concept of absentee voting is relatively new. It
is viewed thus:
The method of absentee voting has been said to be completely separable and
distinct from the regular system of voting, and to be a new and different manner of
voting from that previously known, and an exception to the customary and usual
manner of voting. The right of absentee and disabled voters to cast their ballots at
an election is purely statutory; absentee voting was unknown to, and not recognized
at, the common law.
Absentee voting is an outgrowth of modern social and economic conditions devised
to accommodate those engaged in military or civil life whose duties make it
impracticable for them to attend their polling places on the day of election, and the
privilege of absentee voting may flow from constitutional provisions or be conferred
by statutes, existing in some jurisdictions, which provide in varying terms for the
casting and reception of ballots by soldiers and sailors or other qualified voters
absent on election day from the district or precinct of their residence.
Such statutes are regarded as conferring a privilege and not a right, or an absolute
right. When the legislature chooses to grant the right by statute, it must operate
with equality among all the class to which it is granted; but statutes of this nature
may be limited in their application to particular types of elections. The statutes
should be construed in the light of any constitutional provisions affecting
registration and elections, and with due regard to their texts prior to amendment
and to predecessor statutes and the decisions thereunder; they should also be
construed in the light of the circumstances under which they were enacted; and so
as to carry out the objects thereof, if this can be done without doing violence to
their provisions and mandates. Further, in passing on statutes regulating absentee
voting, the court should look to the whole and every part of the election laws, the
intent of the entire plan, and reasons and spirit of their adoption, and try to give
effect to every portion thereof.[29] (Emphasis supplied)
Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the
same time, both a resident and an absentee.[30] However, under our election laws
and the countless pronouncements of the Court pertaining to elections, an absentee
remains attached to his residence in the Philippines as residence is considered
synonymous with domicile.
In Romualdez-Marcos,[31] the Court enunciated:

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 individuals 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.
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 persons 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. In Uytengsu vs. Republic, 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.[32] (Emphasis supplied)
Aware of the domiciliary legal tie that links an overseas Filipino to his residence in
this country, the framers of the Constitution considered the circumstances that
impelled them to require Congress to establish a system for overseas absentee
voting, thus:
MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage,
which here has a residential restriction, is not denied to citizens temporarily residing
or working abroad. Based on the statistics of several government agencies, there
ought to be about two million such Filipinos at this time. Commissioner Bernas had
earlier pointed out that these provisions are really lifted from the two previous
Constitutions of 1935 and 1973, with the exception of the last paragraph. They
could not therefore have foreseen at that time the phenomenon now described as
the Filipino labor force explosion overseas.

According to government data, there are now about 600,000 contract workers and
employees, and although the major portions of these expatriate communities of
workers are to be found in the Middle East, they are scattered in 177 countries in
the world.
In a previous hearing of the Committee on Constitutional Commissions and
Agencies, the Chairman of the Commission on Elections, Ramon Felipe, said that
there was no insuperable obstacle to making effective the right of suffrage for
Filipinos overseas.
Those who have adhered to their Filipino citizenship
notwithstanding strong temptations are exposed to embrace a more convenient
foreign citizenship. And those who on their own or under pressure of economic
necessity here, find that they have to detach themselves from their families to work
in other countries with definite tenures of employment. Many of them are on
contract employment for one, two, or three years. They have no intention of
changing their residence on a permanent basis, but are technically disqualified from
exercising the right of suffrage in their countries of destination by the residential
requirement in Section 1 which says:
Suffrage shall be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are eighteen years of age or over, and who shall have
resided in the Philippines for at least one year and in the place wherein they
propose to vote for at least six months preceding the election.
I, therefore, ask the Committee whether at the proper time they might entertain an
amendment that will make this exercise of the right to vote abroad for Filipino
citizens an effective, rather than merely a nominal right under this proposed
Constitution.
FR. BERNAS. Certainly, the Committee will consider that. But more than just saying
that, I would like to make a comment on the meaning of residence in the
Constitution because I think it is a concept that has been discussed in various
decisions of the Supreme Court, particularly in the case of Faypon vs. Quirino, a
1954 case which dealt precisely with the meaning of residence in the Election
Law. Allow me to quote:
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, reengaging in business. When an election is to be held, the citizen
who left his birthplace to improve his lot may decide 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 the place of his professional or business activities.
So, they are here registered as voters 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 consider abandonment or loss
of such residence of origin.
In other words, residence in this provision refers to two residence qualifications:
residence in the Philippines and residence in the place where he will vote. As far
as residence in the Philippines is concerned, the word residence means domicile,
but as far as residence in the place where he will actually cast his ballot is
concerned, the meaning seems to be different.
He could have a domicile
somewhere else and yet he is a resident of a place for six months and he is allowed
to vote there. So that there may be serious constitutional obstacles to absentee
voting, unless the vote of the person who is absent is a vote which will be
considered as cast in the place of his domicile.
MR. OPLE. Thank you for citing the jurisprudence.
It gives me scant comfort thinking of about two million Filipinos who should enjoy
the right of suffrage, at least a substantial segment of these overseas Filipino
communities. The Committee, of course, is aware that when this Article of the
Constitution explicitly and unequivocally extends the right of effective suffrage to
Filipinos abroad, this will call for a logistical exercise of global proportions. In effect,
this will require budgetary and administrative commitments on the part of the
Philippine government, mainly through the COMELEC and the Ministry of Foreign
Affairs, and perhaps, a more extensive elaboration of this mechanism that will be
put in place to make effective the right to vote. Therefore, seeking shelter in some
wise jurisprudence of the past may not be sufficient to meet the demands of the
right of suffrage for Filipinos abroad that I have mentioned. But I want to thank the
Committee for saying that an amendment to this effect may be entertained at the
proper time. . . .
...
...
[33] (Emphasis supplied)
Thus, the Constitutional Commission recognized the fact that while millions of
Filipinos reside abroad principally for economic reasons and hence they contribute
in no small measure to the economic uplift of this country, their voices are marginal
insofar as the choice of this countrys leaders is concerned.
The Constitutional Commission realized that under the laws then existing and
considering the novelty of the system of absentee voting in this jurisdiction, vesting
overseas Filipinos with the right to vote would spawn constitutional problems
especially because the Constitution itself provides for the residency requirement of
voters:
MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if
the term absentee voting also includes transient voting; meaning, those who are,
let us say, studying in Manila need not go back to their places of registration, for
instance, in Mindanao, to cast their votes.
MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad.

MR. REGALADO. How about those people who cannot go back to the places where
they are registered?
MR. MONSOD. Under the present Election Code, there are provisions for allowing
students and military people who are temporarily in another place to register and
vote. I believe that those situations can be covered by the Omnibus Election Code.
The reason we want absentee voting to be in the Constitution as a mandate to the
legislature is that there could be inconsistency on the residence rule if it is just a
question of legislation by Congress. So, by allowing it and saying that this is
possible, then legislation can take care of the rest.[34] (Emphasis supplied)
Thus, Section 2, Article V of the Constitution came into being to remove any doubt
as to the inapplicability of the residency requirement in Section 1. It is precisely to
avoid any problems that could impede the implementation of its pursuit to
enfranchise the largest number of qualified Filipinos who are not in the Philippines
that the Constitutional Commission explicitly mandated Congress to provide a
system for overseas absentee voting.
The discussion of the Constitutional Commission on the effect of the residency
requirement prescribed by Section 1, Article V of the Constitution on the proposed
system of absentee voting for qualified Filipinos abroad is enlightening:
MR. SUAREZ. May I just be recognized for a clarification. There are certain
qualifications for the exercise of the right of suffrage like having resided in the
Philippines for at least one year and in the place where they propose to vote for at
least six months preceding the elections. What is the effect of these mandatory
requirements on the matter of the exercise of the right of suffrage by the absentee
voters like Filipinos abroad?
THE PRESIDENT. Would Commissioner Monsod care to answer?
MR. MONSOD. I believe the answer was already given by Commissioner Bernas,
that the domicile requirements as well as the qualifications and disqualifications
would be the same.
THE PRESIDENT. Are we leaving it to the legislature to devise the system?
FR. BERNAS. I think there is a very legitimate problem raised there.
THE PRESIDENT. Yes.
MR. BENGZON. I believe Commissioner Suarez is clarified.
FR. BERNAS. But I think it should be further clarified with regard to the residence
requirement or the place where they vote in practice; the understanding is that it is
flexible. For instance, one might be a resident of Naga or domiciled therein, but he
satisfies the requirement of residence in Manila, so he is able to vote in Manila.
MR. TINGSON. Madam President, may I then suggest to the Committee to change
the word Filipinos to QUALIFIED FILIPINO VOTERS. Instead of VOTING BY

FILIPINOS ABROAD, it should be QUALIFIED FILIPINO VOTERS. If the Committee

wants QUALIFIED VOTERS LIVING ABROAD, would that not satisfy the requirement?
THE PRESIDENT. What does Commissioner Monsod say?
MR. MONSOD. Madam President, I think I would accept the phrase QUALIFIED
FILIPINOS ABROAD because QUALIFIED would assume that he has the
qualifications and none of the disqualifications to vote.
MR. TINGSON. That is right. So does the Committee accept?
FR. BERNAS. QUALIFIED FILIPINOS ABROAD?
THE PRESIDENT. Does the Committee accept the amendment?
MR. REGALADO. Madam President.
THE PRESIDENT. Commissioner Regalado is recognized.
MR. REGALADO. When Commissioner Bengzon asked me to read my proposed
amendment, I specifically stated that the National Assembly shall prescribe a
system which will enable qualified citizens, temporarily absent from the Philippines,
to vote. According to Commissioner Monsod, the use of the phrase absentee
voting already took that into account as its meaning. That is referring to qualified
Filipino citizens temporarily abroad.
MR. MONSOD. Yes, we accepted that. I would like to say that with respect to
registration we will leave it up to the legislative assembly, for example, to require
where the registration is. If it is, say, members of the diplomatic corps who may be
continuously abroad for a long time, perhaps, there can be a system of registration
in the embassies. However, we do not like to preempt the legislative assembly.
THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is only to
provide a system.
MR. MONSOD. Yes.
THE PRESIDENT.
The Commissioner is not stating here that he wants new
qualifications for these absentee voters.
MR. MONSOD. That is right. They must have the qualifications and none of the
disqualifications.
THE PRESIDENT. It is just to devise a system by which they can vote.
MR. MONSOD. That is right, Madam President.[35] (Emphasis supplied)
Clearly therefrom, the intent of the Constitutional Commission is to entrust to
Congress the responsibility of devising a system of absentee voting.
The
qualifications of voters as stated in Section 1 shall remain except for the residency

requirement. This is in fact the reason why the Constitutional Commission opted for
the term qualified Filipinos abroad with respect to the system of absentee voting
that Congress should draw up. As stressed by Commissioner Monsod, by the use of
the adjective qualified with respect to Filipinos abroad, the assumption is that they
have the qualifications and none of the disqualifications to vote. In fine-tuning
the provision on absentee voting, the Constitutional Commission discussed how the
system should work:
MR. SUAREZ. For clarification purposes, we just want to state for the record that in
the case of qualified Filipino citizens residing abroad and exercising their right of
suffrage, they can cast their votes for the candidates in the place where they were
registered to vote in the Philippines. So as to avoid any complications, for example,
if they are registered in Angeles City, they could not vote for a mayor in Naga City.
In other words, if that qualified voter is registered in Angeles City, then he can vote
only for the local and national candidates in Angeles City. I just want to make that
clear for the record.
MR. REGALADO. Madam President.
THE PRESIDENT. What does Commissioner Regalado say?
MR. REGALADO. I just want to make a note on the statement of Commissioner
Suarez that this envisions Filipinos residing abroad. The understanding in the
amendment is that the Filipino is temporarily abroad.
He may not be actually
residing abroad; he may just be there on a business trip. It just so happens that the
day before the elections he has to fly to the United States, so he could not cast his
vote. He is temporarily abroad, but not residing there. He stays in a hotel for two
days and comes back. This is not limited only to Filipinos temporarily residing
abroad. But as long as he is temporarily abroad on the date of the elections, then he
can fall within the prescription of Congress in that situation.
MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we
need this clarification on record.
MR. MONSOD. Madam President, to clarify what we mean by temporarily abroad,
it need not be on very short trips. One can be abroad on a treaty traders visa.
Therefore, when we talk about registration, it is possible that his residence is in
Angeles and he would be able to vote for the candidates in Angeles, but Congress or
the Assembly may provide the procedure for registration, like listing ones name, in
a registry list in the embassy abroad. That is still possible under the system.
FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees
with this.
Suppose we have a situation of a child of a diplomatic officer who reaches the
voting age while living abroad and he has never registered here. Where will he
register? Will he be a registered voter of a certain locality in the Philippines?

MR. MONSOD. Yes, it is possible that the system will enable that child to comply
with the registration requirements in an embassy in the United States and his name
is then entered in the official registration book in Angeles City, for instance.
FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a
registered voter of a locality here.
MR. MONSOD. That is right. He does not have to come home to the Philippines to
comply with the registration procedure here.
FR. BERNAS. So, he does not have to come home.
MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are
more clarifications needed from the body.
Also, the Floor Leader is happy to announce that there are no more registered
Commissioners to propose amendments. So I move that we close the period of
amendments.
[36] (Emphasis supplied)
It is clear from these discussions of the members of the Constitutional Commission
that they intended to enfranchise as much as possible all Filipino citizens abroad
who have not abandoned their domicile of origin. The Commission even intended to
extend to young Filipinos who reach voting age abroad whose parents domicile of
origin is in the Philippines, and consider them qualified as voters for the first time.
It is in pursuance of that intention that the Commission provided for Section 2
immediately after the residency requirement of Section 1. By the doctrine of
necessary implication in statutory construction, which may be applied in construing
constitutional provisions,[37] the strategic location of Section 2 indicates that the
Constitutional Commission provided for an exception to the actual residency
requirement of Section 1 with respect to qualified Filipinos abroad. The same
Commission has in effect declared that qualified Filipinos who are not in the
Philippines may be allowed to vote even though they do not satisfy the residency
requirement in Section 1, Article V of the Constitution.
That Section 2 of Article V of the Constitution is an exception to the residency
requirement found in Section 1 of the same Article was in fact the subject of debate
when Senate Bill No. 2104, which became R.A. No. 9189, was deliberated upon on
the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in relation to the
constitutional provisions. I think the sponsor and I would agree that the Constitution
is supreme in any statute that we may enact.
Let me read Section 1, Article V, of the Constitution entitled, Suffrage. It says:
Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have

resided in the Philippines for at least one year and in the place wherein they
propose to vote for at least six months immediately preceding the election.
Now, Mr. President, the Constitution says, who shall have resided in the
Philippines. They are permanent immigrants. They have changed residence so
they are barred under the Constitution. This is why I asked whether this committee
amendment which in fact does not alter the original text of the bill will have any
effect on this?
Senator Angara. Good question, Mr. President. And this has been asked in various
fora. This is in compliance with the Constitution. One, the interpretation here of
residence is synonymous with domicile.
As the gentleman and I know, Mr. President, domicile is the intent to return to
ones home. And the fact that a Filipino may have been physically absent from the
Philippines and may be physically a resident of the United States, for example, but
has a clear intent to return to the Philippines, will make him qualified as a resident
of the Philippines under this law.
This is consistent, Mr. President, with the constitutional mandate that we that
Congress must provide a franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle literally as demanding physical
presence, then there is no way we can provide for offshore voting to our offshore
kababayan, Mr. President.
Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V,
it reads: The Congress shall provide a system for securing the secrecy and sanctity
of the ballot as well as a system for absentee voting by qualified Filipinos abroad.
The key to this whole exercise, Mr. President, is qualified. In other words, anything
that we may do or say in granting our compatriots abroad must be anchored on the
proposition that they are qualified. Absent the qualification, they cannot vote. And
residents (sic) is a qualification.
I will lose votes here from permanent residents so-called green-card holders, but
the Constitution is the Constitution. We cannot compromise on this. The Senate
cannot be a party to something that would affect or impair the Constitution.
Look at what the Constitution says In the place wherein they propose to vote for
at least six months immediately preceding the election.
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are
separated only by a creek. But one who votes in Makati cannot vote in Pateros
unless he resides in Pateros for six months. That is how restrictive our Constitution
is. I am not talking even about the Election Code. I am talking about the
Constitution.

As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so.
But he must do so, make the transfer six months before the election, otherwise, he
is not qualified to vote.
That is why I am raising this point because I think we have a fundamental difference
here.
Senator Angara. It is a good point to raise, Mr. President. But it is a point already
well-debated even in the constitutional commission of 1986. And the reason
Section 2 of Article V was placed immediately after the six-month/one-year
residency requirement is to demonstrate unmistakably that Section 2 which
authorizes absentee voting is an exception to the six-month/one-year residency
requirement. That is the first principle, Mr. President, that one must remember.
The second reason, Mr. President, is that under our jurisprudence and I think this is
so well-entrenched that one need not argue about it residency has been
interpreted as synonymous with domicile.
But the third more practical reason, Mr. President, is, if we follow the interpretation
of the gentleman, then it is legally and constitutionally impossible to give a
franchise to vote to overseas Filipinos who do not physically live in the country,
which is quite ridiculous because that is exactly the whole point of this exercise to
enfranchise them and empower them to vote.
[38] (Emphasis supplied)
Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee
voting process, to wit:
SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise
disqualified by law, at least eighteen (18) years of age on the day of elections, may
vote for president, vice-president, senators and party-list representatives.
which does not require physical residency in the Philippines; and Section 5 of the
assailed law which enumerates those who are disqualified, to wit:
SEC. 5. Disqualifications. The following shall be disqualified from voting under this
Act:
a)
laws;

Those who have lost their Filipino citizenship in accordance with Philippine

b)
Those who have expressly renounced their Philippine citizenship and who
have pledged allegiance to a foreign country;
c)
Those who have committed and are convicted in a final judgment by a court or
tribunal of an offense punishable by imprisonment of not less than one (1) year,
including those who have committed and been found guilty of Disloyalty as defined
under Article 137 of the Revised Penal Code, such disability not having been
removed by plenary pardon or amnesty: Provided, however, That any person
disqualified to vote under this subsection shall automatically acquire the right to

vote upon expiration of five (5) years after service of sentence; Provided, further,
That the Commission may take cognizance of final judgments issued by foreign
courts or tribunals only on the basis of reciprocity and subject to the formalities and
processes prescribed by the Rules of Court on execution of judgments;
d)
An immigrant or a permanent resident who is recognized as such in the host
country, unless he/she executes, upon registration, an affidavit prepared for the
purpose by the Commission declaring that he/she shall resume actual physical
permanent residence in the Philippines not later than three (3) years from approval
of his/her registration under this Act. Such affidavit shall also state that he/she has
not applied for citizenship in another country. Failure to return shall be cause for the
removal of the name of the immigrant or permanent resident from the National
Registry of Absentee Voters and his/her permanent disqualification to vote in
absentia.
e)
Any citizen of the Philippines abroad previously declared insane or
incompetent by competent authority in the Philippines or abroad, as verified by the
Philippine embassies, consulates or foreign service establishments concerned,
unless such competent authority subsequently certifies that such person is no
longer insane or incompetent.
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an
immigrant or permanent resident who is recognized as such in the host country
because immigration or permanent residence in another country implies
renunciation of ones residence in his country of origin. However, same Section
allows an immigrant and permanent resident abroad to register as voter for as long
as he/she executes an affidavit to show that he/she has not abandoned his domicile
in pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V
that all citizens of the Philippines not otherwise disqualified by law must be
entitled to exercise the right of suffrage and, that Congress must establish a system
for absentee voting; for otherwise, if actual, physical residence in the Philippines is
required, there is no sense for the framers of the Constitution to mandate Congress
to establish a system for absentee voting.
Contrary to the claim of petitioner, the execution of the affidavit itself is not the
enabling or enfranchising act. The affidavit required in Section 5(d) is not only proof
of the intention of the immigrant or permanent resident to go back and resume
residency in the Philippines, but more significantly, it serves as an explicit
expression that he had not in fact abandoned his domicile of origin. Thus, it is not
correct to say that the execution of the affidavit under Section 5(d) violates the
Constitution that proscribes provisional registration or a promise by a voter to
perform a condition to be qualified to vote in a political exercise.
To repeat, the affidavit is required of immigrants and permanent residents abroad
because by their status in their host countries, they are presumed to have
relinquished their intent to return to this country; thus, without the affidavit, the
presumption of abandonment of Philippine domicile shall remain.
Further perusal of the transcripts of the Senate proceedings discloses another
reason why the Senate required the execution of said affidavit. It wanted the affiant

to exercise the option to return or to express his intention to return to his domicile
of origin and not to preempt that choice by legislation. Thus:
Senator Villar. Yes, we are going back.
It states that: For Filipino immigrants and those who have acquired permanent
resident status abroad, a requirement for the registration is the submission of a
Sworn Declaration of Intent to Return duly sworn before any Philippine embassy or
consulate official authorized to administer oath
Mr. President, may we know the rationale of this provision? Is the purpose of this
Sworn Declaration to include only those who have the intention of returning to be
qualified to exercise the right of suffrage? What if the Filipino immigrant has no
purpose of returning? Is he automatically disbarred from exercising this right to
suffrage?
Senator Angara. The rationale for this, Mr. President, is that we want to be
expansive and all-inclusive in this law. That as long as he is a Filipino, no matter
whether he is a green-card holder in the U.S. or not, he will be authorized to vote.
But if he is already a green-card holder, that means he has acquired permanent
residency in the United States, then he must indicate an intention to return. This is
what makes for the definition of domicile. And to acquire the vote, we thought
that we would require the immigrants and the green-card holders . . . Mr. President,
the three administration senators are leaving, maybe we may ask for a vote
[Laughter].
Senator Villar. For a merienda, Mr. President.
Senator Angara. Mr. President, going back to the business at hand. The rationale
for the requirement that an immigrant or a green-card holder should file an affidavit
that he will go back to the Philippines is that, if he is already an immigrant or a
green-card holder, that means he may not return to the country any more and that
contradicts the definition of domicile under the law.
But what we are trying to do here, Mr. President, is really provide the choice to the
voter. The voter, after consulting his lawyer or after deliberation within the family,
may decide No, I think we are risking our permanent status in the United States if
we file an affidavit that we want to go back. But we want to give him the
opportunity to make that decision. We do not want to make that decision for him.
[39] (Emphasis supplied)
The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders
are disqualified to run for any elective office finds no application to the present case
because the Caasi case did not, for obvious reasons, consider the absentee voting
rights of Filipinos who are immigrants and permanent residents in their host
countries.
In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may
still be considered as a qualified citizen of the Philippines abroad upon fulfillment

of the requirements of registration under the new law for the purpose of exercising
their right of suffrage.
It must be emphasized that Section 5(d) does not only require an affidavit or a
promise to resume actual physical permanent residence in the Philippines not later
than three years from approval of his/her registration, the Filipinos abroad must
also declare that they have not applied for citizenship in another country. Thus,
they must return to the Philippines; otherwise, their failure to return shall be cause
for the removal of their names from the National Registry of Absentee Voters and
his/her permanent disqualification to vote in absentia.
Thus, Congress crafted a process of registration by which a Filipino voter
permanently residing abroad who is at least eighteen years old, not otherwise
disqualified by law, who has not relinquished Philippine citizenship and who has not
actually abandoned his/her intentions to return to his/her domicile of origin, the
Philippines, is allowed to register and vote in the Philippine embassy, consulate or
other foreign service establishments of the place which has jurisdiction over the
country where he/she has indicated his/her address for purposes of the elections,
while providing for safeguards to a clean election.
Thus, Section 11 of R.A. No. 9189 provides:
SEC. 11. Procedure for Application to Vote in Absentia.
11.1. Every qualified citizen of the Philippines abroad whose application for
registration has been approved, including those previously registered under
Republic Act No. 8189, shall, in every national election, file with the officer of the
embassy, consulate or other foreign service establishment authorized by the
Commission, a sworn written application to vote in a form prescribed by the
Commission. The authorized officer of such embassy, consulate or other foreign
service establishment shall transmit to the Commission the said application to vote
within five (5) days from receipt thereof.
The application form shall be
accomplished in triplicate and submitted together with the photocopy of his/her
overseas absentee voter certificate of registration.
11.2. Every application to vote in absentia may be done personally at, or by mail
to, the embassy, consulate or foreign service establishment, which has jurisdiction
over the country where he/she has indicated his/her address for purposes of the
elections.
11.3. Consular and diplomatic services rendered in connection with the overseas
absentee voting processes shall be made available at no cost to the overseas
absentee voter.
Contrary to petitioners claim that Section 5(d) circumvents the Constitution,
Congress enacted the law prescribing a system of overseas absentee voting in
compliance with the constitutional mandate. Such mandate expressly requires that
Congress provide a system of absentee voting that necessarily presupposes that the
qualified citizen of the Philippines abroad is not physically present in the country.
The provisions of Sections 5(d) and 11 are components of the system of overseas

absentee voting established by R.A. No. 9189. The qualified Filipino abroad who
executed the affidavit is deemed to have retained his domicile in the Philippines.
He is presumed not to have lost his domicile by his physical absence from this
country. His having become an immigrant or permanent resident of his host country
does not necessarily imply an abandonment of his intention to return to his domicile
of origin, the Philippines. Therefore, under the law, he must be given the
opportunity to express that he has not actually abandoned his domicile in the
Philippines by executing the affidavit required by Sections 5(d) and 8(c) of the law.
Petitioners speculative apprehension that the implementation of Section 5(d) would
affect the credibility of the elections is insignificant as what is important is to ensure
that all those who possess the qualifications to vote on the date of the election are
given the opportunity and permitted to freely do so. The COMELEC and the
Department of Foreign Affairs have enough resources and talents to ensure the
integrity and credibility of any election conducted pursuant to R.A. No. 9189.
As to the eventuality that the Filipino abroad would renege on his undertaking to
return to the Philippines, the penalty of perpetual disenfranchisement provided for
by Section 5(d) would suffice to serve as deterrence to non-compliance with his/her
undertaking under the affidavit.
Petitioner argues that should a sizable number of immigrants renege on their
promise to return, the result of the elections would be affected and could even be a
ground to contest the proclamation of the winning candidates and cause further
confusion and doubt on the integrity of the results of the election. Indeed, the
probability that after an immigrant has exercised the right to vote, he shall opt to
remain in his host country beyond the third year from the execution of the affidavit,
is not farfetched. However, it is not for this Court to determine the wisdom of a
legislative exercise. As expressed in Taada vs. Tuvera,[40] the Court is not called
upon to rule on the wisdom of the law or to repeal it or modify it if we find it
impractical.
Congress itself was conscious of said probability and in fact, it has addressed the
expected problem. Section 5(d) itself provides for a deterrence which is that the
Filipino who fails to return as promised stands to lose his right of suffrage. Under
Section 9, should a registered overseas absentee voter fail to vote for two
consecutive national elections, his name may be ordered removed from the National
Registry of Overseas Absentee Voters.
Other serious legal questions that may be raised would be: what happens to the
votes cast by the qualified voters abroad who were not able to return within three
years as promised? What is the effect on the votes cast by the non-returnees in
favor of the winning candidates? The votes cast by qualified Filipinos abroad who
failed to return within three years shall not be invalidated because they were
qualified to vote on the date of the elections, but their failure to return shall be
cause for the removal of the names of the immigrants or permanent residents from
the National Registry of Absentee Voters and their permanent disqualification to
vote in absentia.

In fine, considering the underlying intent of the Constitution, the Court does not find
Section 5(d) of R.A. No. 9189 as constitutionally defective.
B.
Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in
contravention of Section 4, Article VII of the Constitution?
Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for
president, vice-president, senators and party-list representatives.
Section 18.5 of the same Act provides:
SEC. 18. On-Site Counting and Canvassing.
...

...

...

18. 5 The canvass of votes shall not cause the delay of the proclamation of a
winning candidate if the outcome of the election will not be affected by the results
thereof. Notwithstanding the foregoing, the Commission is empowered to order the
proclamation of winning candidates despite the fact that the scheduled election has
not taken place in a particular country or countries, if the holding of elections
therein has been rendered impossible by events, factors and circumstances peculiar
to such country or countries, in which events, factors and circumstances are beyond
the control or influence of the Commission. (Emphasis supplied)
Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the
COMELEC to order the proclamation of winning candidates insofar as it affects the
canvass of votes and proclamation of winning candidates for president and vicepresident, is unconstitutional because it violates the following provisions of
paragraph 4, Section 4 of Article VII of the Constitution:
SEC. 4 . . .
The returns of every election for President and Vice-President, duly certified by the
board of canvassers of each province or city, shall be transmitted to the Congress,
directed to the President of the Senate. Upon receipt of the certificates of canvass,
the President of the Senate shall, not later than thirty days after the day of the
election, open all the certificates in the presence of the Senate and the House of
Representatives in joint public session, and the Congress, upon determination of the
authenticity and due execution thereof in the manner provided by law, canvass the
votes.
The person having the highest number of votes shall be proclaimed elected, but in
case two or more shall have an equal and highest number of votes, one of them
shall forthwith be chosen by the vote of a majority of all the Members of both
Houses of the Congress, voting separately.
The Congress shall promulgate its rules for the canvassing of the certificates.
...

which gives to Congress the duty to canvass the votes and proclaim the winning
candidates for president and vice-president.
The Solicitor General asserts that this provision must be harmonized with paragraph
4, Section 4, Article VII of the Constitution and should be taken to mean that
COMELEC can only proclaim the winning Senators and party-list representatives but
not the President and Vice-President.[41]
Respondent COMELEC has no comment on the matter.
Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No.
9189 is far too sweeping that it necessarily includes the proclamation of the winning
candidates for the presidency and the vice-presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the
Constitution only insofar as said Section totally disregarded the authority given to
Congress by the Constitution to proclaim the winning candidates for the positions of
president and vice-president.
In addition, the Court notes that Section 18.4 of the law, to wit:
18.4. . . . Immediately upon the completion of the canvass, the chairman of the
Special Board of Canvassers shall transmit via facsimile, electronic mail, or any
other means of transmission equally safe and reliable the Certificates of Canvass
and the Statements of Votes to the Commission, . . . [Emphasis supplied]
clashes with paragraph 4, Section 4, Article VII of the Constitution which provides
that the returns of every election for President and Vice-President shall be certified
by the board of canvassers to Congress.
Congress could not have allowed the COMELEC to usurp a power that
constitutionally belongs to it or, as aptly stated by petitioner, to encroach on the
power of Congress to canvass the votes for president and vice-president and the
power to proclaim the winners for the said positions. The provisions of the
Constitution as the fundamental law of the land should be read as part of The
Overseas Absentee Voting Act of 2003 and hence, the canvassing of the votes and
the proclamation of the winning candidates for president and vice-president for the
entire nation must remain in the hands of Congress.
C.
Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A
of the Constitution?
Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A
(Common Provisions) of the Constitution, to wit:
Section 1. The Constitutional Commissions, which shall be independent, are the Civil
Service Commission, the Commission on Elections, and the Commission on Audit.
(Emphasis supplied)

He submits that the creation of the Joint Congressional Oversight Committee with
the power to review, revise, amend and approve the Implementing Rules and
Regulations promulgated by the COMELEC, R.A. No. 9189 intrudes into the
independence of the COMELEC which, as a constitutional body, is not under the
control of either the executive or legislative departments of government; that only
the COMELEC itself can promulgate rules and regulations which may be changed or
revised only by the majority of its members; and that should the rules promulgated
by the COMELEC violate any law, it is the Court that has the power to review the
same via the petition of any interested party, including the legislators.
It is only on this question that respondent COMELEC submitted its Comment. It
agrees with the petitioner that Sections 19 and 25 of R.A. No. 9189 are
unconstitutional. Like the petitioner, respondent COMELEC anchors its claim of
unconstitutionality of said Sections upon Section 1, Article IX-A of the Constitution
providing for the independence of the constitutional commissions such as the
COMELEC. It asserts that its power to formulate rules and regulations has been
upheld in Gallardo vs. Tabamo, Jr.[42] where this Court held that the power of the
COMELEC to formulate rules and regulations is implicit in its power to implement
regulations under Section 2(1) of Article IX-C[43] of the Constitution. COMELEC joins
the petitioner in asserting that as an independent constitutional body, it may not be
subject to interference by any government instrumentality and that only this Court
may review COMELEC rules and only in cases of grave abuse of discretion.
The COMELEC adds, however, that another provision, vis--vis its rule-making
power, to wit:
SEC. 17. Voting by Mail.
17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in
not more than three (3) countries, subject to the approval of the Congressional
Oversight Committee. Voting by mail may be allowed in countries that satisfy the
following conditions:
a)
Where the mailing system is fairly well-developed and secure to prevent
occasion for fraud;
b)
Where there exists a technically established identification system that
would preclude multiple or proxy voting; and
c)
Where the system of reception and custody of mailed ballots in the
embassies, consulates and other foreign service establishments concerned are
adequate and well-secured.
Thereafter, voting by mail in any country shall be allowed only upon review and
approval of the Joint Congressional Oversight Committee.
...

...

. . . (Emphasis supplied)

is likewise unconstitutional as it violates Section 1, Article IX-A mandating the

independence of constitutional commissions.

The Solicitor General takes exception to his prefatory statement that the
constitutional challenge must fail and agrees with the petitioner that Sections 19
and 25 are invalid and unconstitutional on the ground that there is nothing in Article
VI of the Constitution on Legislative Department that would as much as imply that
Congress has concurrent power to enforce and administer election laws with the
COMELEC; and by the principles of exclusio unius est exclusio alterius and
expressum facit cessare tacitum, the constitutionally enumerated powers of
Congress circumscribe its authority to the exclusion of all others.
The parties are unanimous in claiming that Sections 19, 25 and portions of Section
17.1 are unconstitutional. Thus, there is no actual issue forged on this question
raised by petitioner.
However, the Court finds it expedient to expound on the role of Congress through
the Joint Congressional Oversight Committee (JCOC) vis--vis the independence of
the COMELEC, as a constitutional body.
R.A. No. 9189 created the JCOC, as follows:
SEC. 25. Joint Congressional Oversight Committee. A Joint Congressional Oversight
Committee is hereby created, composed of the Chairman of the Senate Committee
on Constitutional Amendments, Revision of Codes and Laws, and seven (7) other
Senators designated by the Senate President, and the Chairman of the House
Committee on Suffrage and Electoral Reforms, and seven (7) other Members of the
House of Representatives designated by the Speaker of the House of
Representatives: Provided, That, of the seven (7) members to be designated by
each House of Congress, four (4) should come from the majority and the remaining
three (3) from the minority.
The Joint Congressional Oversight Committee shall have the power to monitor and
evaluate the implementation of this Act. It shall review, revise, amend and approve
the Implementing Rules and Regulations promulgated by the Commission.
(Emphasis supplied)
SEC. 19. Authority of the Commission to Promulgate Rules. The Commission shall
issue the necessary rules and regulations to effectively implement the provisions of
this Act within sixty (60) days from the effectivity of this Act. The Implementing
Rules and Regulations shall be submitted to the Joint Congressional Oversight
Committee created by virtue of this Act for prior approval.
...

...

. . . (Emphasis supplied)

Composed of Senators and Members of the House of Representatives, the Joint

Congressional Oversight Committee (JCOC) is a purely legislative body. There is no
question that the authority of Congress to monitor and evaluate the
implementation of R.A. No. 9189 is geared towards possible amendments or
revision of the law itself and thus, may be performed in aid of its legislation.

However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to
the JCOC the following functions: (a) to review, revise, amend and approve the
Implementing Rules and Regulations (IRR) promulgated by the COMELEC [Sections
25 and 19]; and (b) subject to the approval of the JCOC [Section 17.1], the voting by
mail in not more than three countries for the May 2004 elections and in any country
determined by COMELEC.
The ambit of legislative power under Article VI of the Constitution is circumscribed
by other constitutional provisions. One such provision is Section 1 of Article IX-A of
the 1987 Constitution ordaining that constitutional commissions such as the
COMELEC shall be independent.
Interpreting Section 1, Article X of the 1935 Constitution providing that there shall
be an independent COMELEC, the Court has held that [w]hatever may be the
nature of the functions of the Commission on Elections, the fact is that the framers
of the Constitution wanted it to be independent from the other departments of the
Government.[44] In an earlier case, the Court elucidated:
The Commission on Elections is a constitutional body. It is intended to play a distinct
and important part in our scheme of government. In the discharge of its functions, it
should not be hampered with restrictions that would be fully warranted in the case
of a less responsible organization. The Commission may err, so may this court also.
It should be allowed considerable latitude in devising means and methods that will
insure the accomplishment of the great objective for which it was created free,
orderly and honest elections. We may not agree fully with its choice of means, but
unless these are clearly illegal or constitute gross abuse of discretion, this court
should not interfere. Politics is a practical matter, and political questions must be
dealt with realistically not from the standpoint of pure theory. The Commission on
Elections, because of its fact-finding facilities, its contacts with political strategists,
and its knowledge derived from actual experience in dealing with political
controversies, is in a peculiarly advantageous position to decide complex political
questions.
[45] (Emphasis supplied)
The Court has no general powers of supervision over COMELEC which is an
independent body except those specifically granted by the Constitution, that is, to
review its decisions, orders and rulings.[46] In the same vein, it is not correct to
hold that because of its recognized extensive legislative power to enact election
laws, Congress may intrude into the independence of the COMELEC by exercising
supervisory powers over its rule-making authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to
issue the necessary rules and regulations to effectively implement the provisions of
this Act within sixty days from the effectivity of this Act. This provision of law
follows the usual procedure in drafting rules and regulations to implement a law
the legislature grants an administrative agency the authority to craft the rules and
regulations implementing the law it has enacted, in recognition of the
administrative expertise of that agency in its particular field of operation.[47] Once
a law is enacted and approved, the legislative function is deemed accomplished and
complete. The legislative function may spring back to Congress relative to the

same law only if that body deems it proper to review, amend and revise the law, but
certainly not to approve, review, revise and amend the IRR of the COMELEC.
By vesting itself with the powers to approve, review, amend, and revise the IRR for
The Overseas Absentee Voting Act of 2003, Congress went beyond the scope of its
constitutional authority. Congress trampled upon the constitutional mandate of
independence of the COMELEC. Under such a situation, the Court is left with no
option but to withdraw from its usual reticence in declaring a provision of law
unconstitutional.
The second sentence of the first paragraph of Section 19 stating that [t]he
Implementing Rules and Regulations shall be submitted to the Joint Congressional
Oversight Committee created by virtue of this Act for prior approval, and the
second sentence of the second paragraph of Section 25 stating that [i]t shall
review, revise, amend and approve the Implementing Rules and Regulations
promulgated by the Commission, whereby Congress, in both provisions, arrogates
unto itself a function not specifically vested by the Constitution, should be stricken
out of the subject statute for constitutional infirmity. Both provisions brazenly
violate the mandate on the independence of the COMELEC.
Similarly, the phrase, subject to the approval of the Congressional Oversight
Committee in the first sentence of Section 17.1 which empowers the Commission
to authorize voting by mail in not more than three countries for the May, 2004
elections; and the phrase, only upon review and approval of the Joint Congressional
Oversight Committee found in the second paragraph of the same section are
unconstitutional as they require review and approval of voting by mail in any
country after the 2004 elections. Congress may not confer upon itself the authority
to approve or disapprove the countries wherein voting by mail shall be allowed, as
determined by the COMELEC pursuant to the conditions provided for in Section 17.1
of R.A. No. 9189.[48] Otherwise, Congress would overstep the bounds of its
constitutional mandate and intrude into the independence of the COMELEC.
During the deliberations, all the members of the Court agreed to adopt the separate
opinion of Justice Reynato S. Puno as part of the ponencia on the unconstitutionality
of Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as they relate to the creation of
and the powers given to the Joint Congressional Oversight Committee.
WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No.
9189 are declared VOID for being UNCONSTITUTIONAL:
a)
The phrase in the first sentence of the first paragraph of Section 17.1, to wit:
subject to the approval of the Joint Congressional Oversight Committee;
b)
The portion of the last paragraph of Section 17.1, to wit: only upon review
and approval of the Joint Congressional Oversight Committee;
c)
The second sentence of the first paragraph of Section 19, to wit: The
Implementing Rules and Regulations shall be submitted to the Joint Congressional
Oversight Committee created by virtue of this Act for prior approval; and

d)
The second sentence in the second paragraph of Section 25, to wit: It shall
review, revise, amend and approve the Implementing Rules and Regulations
promulgated by the Commission of the same law;
for being repugnant to Section 1, Article IX-A of the Constitution mandating the
independence of constitutional commission, such as COMELEC.
The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to
the authority given to the COMELEC to proclaim the winning candidates for the
Senators and party-list representatives but not as to the power to canvass the votes
and proclaim the winning candidates for President and Vice-President which is
lodged with Congress under Section 4, Article VII of the Constitution.
The constitutionality of Section 5(d) is UPHELD.
Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law
continues to be in full force and effect.
SO ORDERED.
Davide, Jr., C.J., and Corona, JJ., concur.
Quisumbing, J., on leave.
Tinga, J., no part.
Bellosillo, and Carpio, JJ., see concurring opinion.
Puno, Ynares-Santiago, and Callejo, Sr., JJ., see concurring and dissenting opinion.
Sandoval-Gutierrez, J., see concurring and dissenting opinion. On official leave.
Vitug, and Panganiban, JJ., see separate opinion.
Carpio-Morales, and Azcuna, JJ., see separate (concurring) opinion.

Domino v. Comelec
/---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---\
[1999V527E] JUAN DOMINO, petitioner, vs. COMMISSION ON ELECTIONS, NARCISO
Ra. GRAFILO, JR., EDDY B. JAVA, JUAN P. BAYONITO, JR., ROSARIO SAMSON and
DIONISIO P. LIM, SR., respondents. / LUCILLE CHIONGBIAN-SOLON, intervenor.1999
Jul 19En BancG.R. No. 134015D E C I S I O N
DAVIDE, JR., C.J.:
Challenged in this case for certiorari with a prayer for preliminary injunction are the
Resolution of 6 May 1998[1] of the Second Division of the Commission on Elections
(hereafter COMELEC), declaring petitioner Juan Domino (hereafter DOMINO)
disqualified as candidate for representative of the Lone Legislative District of the
Province of Sarangani in the 11 May 1998 elections, and the Decision of 29 May
1998[2] of the COMELEC en banc denying DOMINOs motion for reconsideration.
The antecedents are not disputed.

On 25 March 1998, DOMINO filed his certificate of candidacy for the position of
Representative of the Lone Legislative District of the Province of Sarangani
indicating in item nine (9) of his certificate that he had resided in the constituency
where he seeks to be elected for one (1) year and two (2) months immediately
preceding the election.[3]
On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy B. Java, Juan P.
Bayonito, Jr., Rosario Samson and Dionisio P. Lim, Sr., filed with the COMELEC a
Petition to Deny Due Course to or Cancel Certificate of Candidacy, which was
docketed as SPA No. 98-022 and assigned to the Second Division of the COMELEC.
Private respondents alleged that DOMINO, contrary to his declaration in the
certificate of candidacy, is not a resident, much less a registered voter, of the
province of Sarangani where he seeks election. To substantiate their allegations,
private respondents presented the following evidence:
1. Annex A the Certificate of Candidacy of respondent for the position of
Congressman of the Lone District of the Province of Sarangani filed with the Office
of the Provincial Election Supervisor of Sarangani on March 25, 1998, where in item
4 thereof he wrote his date of birth as December 5, 1953; in item 9, he claims he
have resided in the constituency where he seeks election for one (1) year and two
(2) months; and, in item 10, that he is registered voter of Precinct No. 14A-1,
Barangay Poblacion, Alabel, Sarangani;
2. Annex B Voters Registration Record with SN 31326504 dated June 22, 1997
indicating respondents registration at Precinct No. 4400-A, Old Balara, Quezon City;
3. Annex C Respondents Community Tax Certificate No. 11132214C dated
January 15, 1997;
4. Annex D Certified true copy of the letter of Herson D. Dema-ala, Deputy
Provincial & Municipal Treasurer of Alabel, Sarangani, dated February 26, 1998,
addressed to Mr. Conrado G. Butil, which reads:
In connection with your letter of even date, we are furnishing you herewith
certified xerox copy of the triplicate copy of COMMUNITY TAX CERTIFICATE NO.
11132214C in the name of Juan Domino.
Furthermore, Community Tax Certificate No. 11132212C of the same stub was
issued to Carlito Engcong on September 5, 1997, while Certificate No. 11132213C
was also issued to Mr. Juan Domino but was cancelled and serial no. 11132215C was
issued in the name of Marianita Letigio on September 8, 1997.
5. Annex E The triplicate copy of the Community Tax Certificate No. 11132214C
in the name of Juan Domino dated September 5, 1997;
6. Annex F Copy of the letter of Provincial Treasurer Lourdes P. Riego dated
March 2, 1998 addressed to Mr. Herson D. Dema-ala, Deputy Provincial Treasurer
and Municipal Treasurer of Alabel, Sarangani, which states:

For easy reference, kindly turn-over to the undersigned for safekeeping, the stub of
Community Tax Certificate containing Nos. 11132201C-11132250C issued to you on
June 13, 1997 and paid under Official Receipt No. 7854744.
Upon request of Congressman James L. Chiongbian.
7.
Annex G Certificate of Candidacy of respondent for the position of
Congressman in the 3rd District of Quezon City for the 1995 elections filed with the
Office of the Regional Election Director, National Capital Region, on March 17, 1995,
where, in item 4 thereof, he wrote his birth date as December 22, 1953; in item 8
thereof his residence in the constituency where I seek to be elected immediately
preceding the election as 3 years and 5 months; and, in item 9, that he is a
registered voter of Precinct No. 182, Barangay Balara, Quezon City;
8. Annex H a copy of the APPLICATION FOR TRANSFER OF REGISTRATION
RECORDS DUE TO CHANGE OF RESIDENCE of respondent dated August 30, 1997
addressed to and received by Election Officer Mantil Alim, Alabel, Sarangani, on
September 22, 1997, stating among others, that [T]he undersigneds previous
residence is at 24 Bonifacio Street, Ayala Heights, Quezon City, III District, Quezon
City; wherein he is a registered voter and that for business and residence
purposes, the undersigned has transferred and conducts his business and reside at
Barangay Poblacion, Alabel, Province of Sarangani prior to this application;
9. Annex I Copy of the SWORN APPLICATION FOR CANCELLATION OF VOTERS
[TRANSFER OF] PREVIOUS REGISTRATION of respondent subscribed and sworn to on
22 October 1997 before Election Officer Mantil Allim at Alabel, Sarangani.[4]
For his defense, DOMINO maintains that he had complied with the one-year
residence requirement and that he has been residing in Sarangani since January
1997. In support of the said contention, DOMINO presented before the COMELEC
the following exhibits, to wit:
1. Annex 1 - Copy of the Contract of Lease between Nora Dacaldacal as Lessor
and Administrator of the properties of deceased spouses Maximo and Remedios
Dacaldacal and respondent as Lessee executed on January 15, 1997, subscribed
and sworn to before Notary Public Johnny P. Landero;
2. Annex 2 - Copy of the Extra-Judicial Settlement of Estate with Absolute Deed of
sale executed by and between the heirs of deceased spouses Maximo and Remedios
Dacaldacal, namely: Maria Lourdes, Jupiter and Beberlie and the respondent on
November 4, 1997, subscribed and sworn to before Notary Public Jose A. Alegario;
3. Annex 3 - True Carbon Xerox copy of the Decision dated January 19, 1998, of
the Metropolitan Trial Court of Metro Manila, Branch 35, Quezon City, in Election
Case NO. 725 captioned as In the Matter of the Petition for the Exclusion from the
List of voters of Precinct No. 4400-A Brgy. Old Balara, Quezon City, Spouses Juan and
Zorayda Domino, Petitioners, -versus- Elmer M. Kayanan, Election Officer, Quezon
City, District III, and the Board of Election Inspectors of Precinct No. 4400-A, Old
Balara, Quezon City, Respondents. The dispositive portion of which reads:

1.
Declaring the registration of petitioners as voters of Precinct No. 4400-A,
Barangay Old Balara, in District III Quezon City as completely erroneous as
petitioners were no longer residents of Quezon City but of Alabel, Sarangani where
they have been residing since December 1996;
2.
Declaring this erroneous registration of petitioners in Quezon City as done in
good faith due to an honest mistake caused by circumstances beyond their control
and without any fault of petitioners;
3.
Approving the transfer of registration of voters of petitioners from Precinct No.
4400-A of Barangay Old Balara, Quezon City to Precinct No. 14A1 of Barangay
Poblacion of Alabel, Sarangani; and
4.
Ordering the respondents to immediately transfer and forward all the
election/voters registration records of the petitioners in Quezon City to the Election
Officer, the Election Registration Board and other Comelec Offices of Alabel,
Sarangani where the petitioners are obviously qualified to exercise their respective
rights of suffrage.
4. Annex 4 - Copy of the Application for Transfer of Registration Records due to
Change
of Residence addressed to Mantil Alim, COMELEC Registrar, Alabel,
Sarangani, dated August 30, 1997.
5. Annex 5 - Certified True Copy of the Notice of Approval of Application, the
roster of applications for registration approved by the Election Registration Board on
October 20, 1997, showing the spouses Juan and Zorayda Bailon Domino listed as
numbers 111 and 112 both under Precinct No. 14A1, the last two names in the slate
indicated as transferees without VRR numbers and their application dated August
30, 1997 and September 30, 1997, respectively.
6. Annex 6 - same as Annex 5
7. Annex 6-a - Copy of the Sworn Application for Cancellation of Voters Previous
Registration (Annex I, Petition);
8. Annex 7 - Copy of claim card in the name of respondent showing his VRR No.
31326504 dated October 20, 1997 as a registered voter of Precinct No. 14A1,
Barangay Poblacion, Alabel, Sarangani;
9. Annex 7-a - Certification dated April 16, 1998, issued by Atty. Elmer M.
Kayanan, Election Officer IV, District III, Quezon City, which reads:
This is to certify that the spouses JUAN and ZORAYDA DOMINO are no longer
registered voters of District III, Quezon City. Their registration records (VRR) were
transferred and are now in the possession of the Election Officer of Alabel,
Sarangani.
This certification is being issued upon the request of Mr. JUAN DOMINO.

10.
Annex 8 - Affidavit of Nora Dacaldacal and Maria Lourdes Dacaldacal
stating the circumstances and incidents detailing their alleged acquaintance with
respondent.
11.
Annexes 8-a, 8-b, 8-c and 8-d - Copies of the uniform affidavits
of witness Myrna Dalaguit, Hilario Fuentes, Coraminda Lomibao and Elena V. Piodos
subscribed and sworn to before Notary Public Bonifacio F. Doria, Jr., on April 18,
1998, embodying their alleged personal knowledge of respondents residency in
Alabel, Sarangani;
12.
Annex 8-e - A certification dated April 20, 1998, subscribed and sworn
to before Notary Public Bonifacio, containing a listing of the names of fifty-five(55)
residents of Alabel, Sarangani, declaring and certifying under oath that they
personally know the respondent as a permanent resident of Alabel, Sarangani since
January 1997 up to present;
13.
Annexes 9, 9-a and 9-b- Copies of Individual Income Tax Return for
the year 1997, BIR form 2316 and W-2, respectively, of respondent; and,
14.
Annex 10 - The affidavit of respondent reciting the chronology of
events and circumstances leading to his relocation to the Municipality of Alabel,
Sarangani, appending Annexes A, B, C, D, D-1, E, F, G with submarkings G-1 and G-2 and H his CTC No. 111`32214C dated September 5,
1997, which are the same as Annexes 1, 2, 4, 5, 6-a, 3, 7, 9 with
sub-markings 9-a and 9-b except Annex H.[5]
On 6 May 1998, the COMELEC 2nd Division promulgated a resolution declaring
DOMINO disqualified as candidate for the position of representative of the lone
district of Sarangani for lack of the one-year residence requirement and likewise
ordered the cancellation of his certificate of candidacy, on the basis of the following
findings:
What militates against respondents claim that he has met the residency
requirement for the position sought is his own Voters Registration Record No.
31326504 dated June 22, 1997 [Annex B, Petition] and his address indicated as 24
Bonifacio St., Ayala Heights, Old Balara, Quezon City. This evidence, standing alone,
negates all his protestations that he established residence at Barangay Poblacion,
Alabel, Sarangani, as early as January 1997. It is highly improbable, nay incredible,
for respondent who previously ran for the same position in the 3rd Legislative
District of Quezon City during the elections of 1995 to unwittingly forget the
residency requirement for the office sought.
Counting, therefore, from the day after
at Precinct No. 4400-A, up to and until
respondent clearly lacks the one (1)
candidates for Member of the House of
of the Constitution.

June 22, 1997 when respondent registered

the day of the elections on May 11, 1998,
year residency requirement provided for
Representatives under Section 6, Article VI

All told, petitioners evidence conspire to attest to respondents lack of residence in

the constituency where he seeks election and while it may be conceded that he is a

registered voter as contemplated under Section 12 of R.A. 8189, he lacks the

qualification to run for the position of Congressman for the Lone District of the
Province of Sarangani.[6]
On 11 May 1998, the day of the election, the COMELEC issued Supplemental
Omnibus Resolution No. 3046, ordering that the votes cast for DOMINO be counted
but to suspend the proclamation if winning, considering that the Resolution
disqualifying him as candidate had not yet become final and executory.[7]
The result of the election, per Statement of Votes certified by the Chairman of the
Provincial Board of Canvassers,[8] shows that DOMINO garnered the highest number
of votes over his opponents for the position of Congressman of the Province of
Sarangani.
On 15 May 1998, DOMINO filed a motion for reconsideration of the Resolution dated
6 May 1998, which was denied by the COMELEC en banc in its decision dated 29
May 1998. Hence, the present Petition for Certiorari with prayer for Preliminary
Mandatory Injunction alleging, in the main, that the COMELEC committed grave
abuse of discretion amounting to excess or lack of jurisdiction when it ruled that he
did not meet the one-year residence requirement.
On 14 July 1998, acting on DOMINOs Motion for Issuance of Temporary Restraining
Order, the Court directed the parties to maintain the status quo prevailing at the
time of the filing of the instant petition.[9]
On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter INTERVENOR), the
candidate receiving the second highest number of votes, was allowed by the Court
to Intervene.[10]
INTERVENOR in her Motion for Leave to Intervene and in her Comment in
Intervention[11] is asking the Court to uphold the disqualification of petitioner Juan
Domino and to proclaim her as the duly elected representative of Sarangani in the
11 May 1998 elections.
Before us DOMINO raised the following issues for resolution, to wit:
a. Whether or not the judgment of the Metropolitan Trial Court of Quezon City
declaring petitioner as resident of Sarangani and not of Quezon City is final,
conclusive and binding upon the whole world, including the Commission on
Elections.
b. Whether or not petitioner herein has resided in the subject congressional district
for at least one (1) year immediately preceding the May 11, 1998 elections; and
c. Whether or not respondent COMELEC has jurisdiction over the petition a quo for
the disqualification of petitioner.[12]
The first issue.

The contention of DOMINO that the decision of the Metropolitan Trial Court of
Quezon City in the exclusion proceedings declaring him a resident of the Province of
Sarangani and not of Quezon City is final and conclusive upon the COMELEC cannot
be sustained.
The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the Omnibus Election
Code, over a petition to deny due course to or cancel certificate of candidacy. In the
exercise of the said jurisdiction, it is within the competence of the COMELEC to
determine whether false representation as to material facts was made in the
certificate of candidacy, that will include, among others, the residence of the
candidate.
The determination of the Metropolitan Trial Court of Quezon City in the exclusion
proceedings as to the right of DOMINO to be included or excluded from the list of
voters in the precinct within its territorial jurisdiction, does not preclude the
COMELEC, in the determination of DOMINOs qualification as a candidate, to pass
upon the issue of compliance with the residency requirement.
The proceedings for the exclusion or inclusion of voters in the list of voters are
summary in character. Thus, the factual findings of the trial court and its resultant
conclusions in the exclusion proceedings on matters other than the right to vote in
the precinct within its territorial jurisdiction are not conclusive upon the COMELEC.
Although the court in inclusion or exclusion proceedings may pass upon any
question necessary to decide the issue raised including the questions of citizenship
and residence of the challenged voter, the authority to order the inclusion in or
exclusion from the list of voters necessarily caries with it the power to inquire into
and settle all matters essential to the exercise of said authority. However, except
for the right to remain in the list of voters or for being excluded therefrom for the
particular election in relation to which the proceedings had been held, a decision in
an exclusion or inclusion proceeding, even if final and unappealable, does not
acquire the nature of res judicata.[13] In this sense, it does not operate as a bar to
any future action that a party may take concerning the subject passed upon in the
proceeding.[14] Thus, a decision in an exclusion proceeding would neither be
conclusive on the voters political status, nor bar subsequent proceedings on his
right to be registered as a voter in any other election.[15]
Thus, in Tan Cohon v. Election Registrar[16] we ruled that:
xxx It is made clear that even as it is here held that the order of the City Court in
question has become final, the same does not constitute res adjudicata as to any of
the matters therein contained. It is ridiculous to suppose that such an important
and intricate matter of citizenship may be passed upon and determined with finality
in such a summary and peremptory proceeding as that of inclusion and exclusion of
persons in the registry list of voters. Even if the City Court had granted appellants
petition for inclusion in the permanent list of voters on the allegation that she is a
Filipino citizen qualified to vote, her alleged Filipino citizenship would still have been
left open to question.
Moreover, the Metropolitan Trial Court of Quezon City in its 18 January decision
exceeded its jurisdiction when it declared DOMINO a resident of the Province of

Sarangani, approved and ordered the transfer of his voters registration from
Precinct No. 4400-A of Barangay Old Balara, Quezon City to precinct 14A1 of
Barangay Poblacion, Alabel, Sarangani. It is not within the competence of the trial
court, in an exclusion proceedings, to declare the challenged voter a resident of
another municipality. The jurisdiction of the lower court over exclusion cases is
limited only to determining the right of voter to remain in the list of voters or to
declare that the challenged voter is not qualified to vote in the precinct in which he
is registered, specifying the ground of the voters disqualification. The trial court
has no power to order the change or transfer of registration from one place of
residence to another for it is the function of the election Registration Board as
provided under Section 12 of R.A. No. 8189.[17] The only effect of the decision of
the lower court excluding the challenged voter from the list of voters, is for the
Election Registration Board, upon receipt of the final decision, to remove the voters
registration record from the corresponding book of voters, enter the order of
exclusion therein, and thereafter place the record in the inactive file.[18]
Finally, the application of the rule on res judicata is unavailing. Identity of parties,
subject matter and cause of action are indispensable requirements for the
application of said doctrine. Neither herein Private Respondents nor INTERVENOR, is
a party in the exclusion proceedings. The Petition for Exclusion was filed by
DOMINO himself and his wife, praying that he and his wife be excluded from the
Voters List on the ground of erroneous registration while the Petition to Deny Due
Course to or Cancel Certificate of Candidacy was filed by private respondents
against DOMINO for alleged false representation in his certificate of candidacy. For
the decision to be a basis for the dismissal by reason of res judicata, it is essential
that there must be between the first and the second action identity of parties,
identity of subject matter and identity of causes of action.[19] In the present case,
the aforesaid essential requisites are not present. In the case of Nuval v. Guray, et
al.,[20] the Supreme Court in resolving a similar issue ruled that:
The question to be solved under the first assignment of error is whether or not the
judgment rendered in the case of the petition for the exclusion of Norberto Gurays
name from the election list of Luna, is res judicata, so as to prevent the institution
and prosecution of an action in quo warranto, which is now before us.
The procedure prescribed by section 437 of the Administrative Code, as amended
by Act No. 3387, is of a summary character and the judgment rendered therein is
not appealable except when the petition is tried before the justice of the peace of
the capital or the circuit judge, in which case it may be appealed to the judge of first
instance, with whom said two lower judges have concurrent jurisdiction.
The petition for exclusion was presented by Gregorio Nuval in his dual capacity as
qualified voter of the municipality of Luna, and as a duly registered candidate for
the office of president of said municipality, against Norberto Guray as a registered
voter in the election list of said municipality. The present proceeding of quo
warranto was interposed by Gregorio Nuval in his capacity as a registered candidate
voted for the office of municipal president of Luna, against Norberto Guray, as an
elected candidate for the same office. Therefore, there is no identity of parties in
the two cases, since it is not enough that there be an identity of persons, but there
must be an identity of capacities in which said persons litigate. ( Art. 1259 of the

Civil Code; Bowler vs. Estate of Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756, par.
1165)
In said case of the petition for the exclusion, the object of the litigation, or the
litigious matter was the exclusion of Norberto Guray as a voter from the election list
of the municipality of Luna, while in the present quo warranto proceeding, the
object of the litigation, or the litigious matter is his exclusion or expulsion from the
office to which he has been elected. Neither does there exist, then, any identity in
the object of the litigation, or the litigious matter.
In said case of the petition for exclusion, the cause of action was that Norberto
Guray had not the six months legal residence in the municipality of Luna to be a
qualified voter thereof, while in the present proceeding of quo warranto, the cause
of action is that Norberto Guray has not the one years legal residence required for
eligibility to the office of municipal president of Luna. Neither does there exist
therefore, identity of causes of action.
In order that res judicata may exist the following are necessary: (a) identity of
parties; (b) identity of things; and (c) identity of issues (Aquino vs. Director of Lands,
39 Phil. 850). And as in the case of the petition for exclusion and in the present quo
warranto proceeding, as there is no identity of parties, or of things or litigious
matter, or of issues or causes of action, there is no res judicata.
The Second Issue.
Was DOMINO a resident of the Province of Sarangani for at least one year
immediately preceding the 11 May 1998 election as stated in his certificate of
candidacy?
We hold in the negative.
It is doctrinally settled that the term residence, as used in the law prescribing the
qualifications for suffrage and for elective office, means the same thing as
domicile, which imports not only an intention to reside in a fixed place but also
personal presence in that place, coupled with conduct indicative of such intention.
[21] Domicile denotes a fixed permanent residence to which, whenever absent for
business, pleasure, or some other reasons, one intends to return.[22] Domicile is a
question of intention and circumstances. In the consideration of circumstances,
three rules must be borne in mind, namely: (1) that a man must have a residence or
domicile somewhere; (2) when once established it remains until a new one is
acquired; and (3) a man can have but one residence or domicile at a time.[23]
Records show that petitioners domicile of origin was Candon, Ilocos Sur[24] and
that sometime in 1991, he acquired a new domicile of choice at 24 Bonifacio St.
Ayala Heights, Old Balara, Quezon City, as shown by his certificate of candidacy for
the position of representative of the 3rd District of Quezon City in the May 1995
election.
Petitioner is now claiming that he had effectively abandoned his
residence in Quezon City and has established a new domicile of choice at the
Province of Sarangani.

A persons domicile once established is considered to continue and will not be

deemed lost until a new one is established.[25] To successfully effect a change of
domicile one must demonstrate an actual removal or an actual change of domicile;
a bona fide intention of abandoning the former place of residence and establishing a
new one and definite acts which correspond with the purpose.[26] In other words,
there must basically be animus manendi coupled with animus non revertendi. The
purpose to remain in or at the domicile of choice must be for an indefinite period of
time; the change of residence must be voluntary; and the residence at the place
chosen for the new domicile must be actual.[27]
It is the contention of petitioner that his actual physical presence in Alabel,
Sarangani since December 1996 was sufficiently established by the lease of a house
and lot located therein in January 1997 and by the affidavits and certifications under
oath of the residents of that place that they have seen petitioner and his family
residing in their locality.
While this may be so, actual and physical is not in itself sufficient to show that from
said date he had transferred his residence in that place. To establish a new domicile
of choice, personal presence in the place must be coupled with conduct indicative of
that intention. While residence simply requires bodily presence in a given place,
domicile requires not only such bodily presence in that place but also a declared
and probable intent to make it ones fixed and permanent place of abode, ones
home.[28]
As a general rule, the principal elements of domicile, physical presence in the
locality involved and intention to adopt it as a domicile, must concur in order to
establish a new domicile. No change of domicile will result if either of these
elements is absent. Intention to acquire a domicile without actual residence in the
locality does not result in acquisition of domicile, nor does the fact of physical
presence without intention.[29]
The lease contract entered into sometime in January 1997, does not adequately
support a change of domicile. The lease contract may be indicative of DOMINOs
intention to reside in Sarangani but it does not engender the kind of permanency
required to prove abandonment of ones original domicile. The mere absence of
individual from his permanent residence, no matter how long, without the intention
to abandon it does not result in loss or change of domicile.[30] Thus the date of the
contract of lease of a house and lot located in the province of Sarangani, i.e., 15
January 1997, cannot be used, in the absence of other circumstances, as the
reckoning period of the one-year residence requirement.
Further, Dominos lack of intention to abandon his residence in Quezon City is
further strengthened by his act of registering as voter in one of the precincts in
Quezon City. While voting is not conclusive of residence, it does give rise to a
strong presumption of residence especially in this case where DOMINO registered in
his former barangay. Exercising the right of election franchise is a deliberate public
assertion of the fact of residence, and is said to have decided preponderance is a
doubtful case upon the place the elector claims as, or believes to be, his residence.
[31] The fact that a party continuously voted in a particular locality is a strong
factor in assisting to determine the status of his domicile.[32]

His claim that his registration in Quezon City was erroneous and was caused by
events over which he had no control cannot be sustained. The general registration
of voters for purposes of the May 1998 elections was scheduled for two (2)
consecutive weekends, viz.: June 14, 15, 21, and 22.[33]
While, Dominos intention to establish residence in Sarangani can be gleaned from
the fact that be bought the house he was renting on November 4, 1997, that he
sought cancellation of his previous registration in Quezon City on 22 October 1997,
[34] and that he applied for transfer of registration from Quezon City to Sarangani
by reason of change of residence on 30 August 1997,[35] DOMINO still falls short of
the one year residency requirement under the Constitution.
In showing compliance with the residency requirement, both intent and actual
presence in the district one intends to represent must satisfy the length of time
prescribed by the fundamental law.[36] Dominos failure to do so rendered him
ineligible and his election to office null and void.[37]
The Third Issue.
DOMINOs contention that the COMELEC has no jurisdiction in the present petition is
bereft of merit.
As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the Omnibus
Election Code, has jurisdiction over a petition to deny due course to or cancel
certificate of candidacy. Such jurisdiction continues even after election, if for any
reason no final judgment of disqualification is rendered before the election, and the
candidate facing disqualification is voted for and receives the highest number of
votes[38] and provided further that the winning candidate has not been proclaimed
or has taken his oath of office.[39]
It has been repeatedly held in a number of cases, that the House of Representatives
Electoral Tribunals sole and exclusive jurisdiction over all contests relating to the
election, returns and qualifications of members of Congress as provided under
Section 17 of Article VI of the Constitution begins only after a candidate has become
a member of the House of Representatives.[40]
The fact of obtaining the highest number of votes in an election does not
automatically vest the position in the winning candidate.[41] A candidate must be
proclaimed and must have taken his oath of office before he can be considered a
member of the House of Representatives.
In the instant case, DOMINO was not proclaimed as Congressman-elect of the Lone
Congressional District of the Province of Sarangani by reason of a Supplemental
Omnibus Resolution issued by the COMELEC on the day of the election ordering the
suspension of DOMINOs proclamation should he obtain the winning number of
votes. This resolution was issued by the COMELEC in view of the non-finality of its 6
May 1998 resolution disqualifying DOMINO as candidate for the position.

Considering that DOMINO has not been proclaimed as Congressman-elect in the

Lone Congressional District of the Province of Sarangani he cannot be deemed a
member of the House of Representative. Hence, it is the COMELEC and not the
Electoral Tribunal which has jurisdiction over the issue of his ineligibility as a
candidate.[42]
Issue raised by INTERVENOR.
After finding that DOMINO is disqualified as candidate for the position of
representative of the province of Sarangani, may INTERVENOR, as the candidate
who received the next highest number of votes, be proclaimed as the winning
candidate?
It is now settled doctrine that the candidate who obtains the second highest number
of votes may not be proclaimed winner in case the winning candidate is disqualified.
[43]
In every election, the peoples choice is the paramount consideration and their
expressed will must, at all times, be given effect. When the majority speaks and
elects into office a candidate by giving the highest number of votes cast in the
election for that office, no one can be declared elected in his place.[44]
It would be extremely repugnant to the basic concept of the constitutionally
guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed a winner and imposed as the representative of a
constituency, the majority of which have positively declared through their ballots
that they do not choose him.[45] To simplistically assume that the second placer
would have received the other votes would be to substitute our judgment for the
mind of the voters. He could not be considered the first among qualified candidates
because in a field which excludes the qualified candidate, the conditions would have
substantially changed.[46]
Sound policy dictates that public elective offices are filled by those who have
received the highest number of votes cast in the election for that office, and it is
fundamental idea in all republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election.[47]
The effect of a decision declaring a person ineligible to hold an office is only that the
election fails entirely, that the wreath of victory cannot be transferred[48] from the
disqualified winner to the repudiated loser because the law then as now only
authorizes a declaration of election in favor of the person who haS obtained a
plurality of votes[49] and does not entitle the candidate receiving the next highest
number of votes to be declared elected. In such case, the electors have failed to
make a choice and the election is a nullity.[50] To allow the defeated and repudiated
candidate to take over the elective position despite his rejection by the electorate is
to disenfranchise the electorate without any fault on their part and to undermine
the importance and meaning of democracy and the peoples right to elect officials
of their choice.[51]

INTERVENORs plea that the votes cast in favor of DOMINO be considered stray
votes cannot be sustained. INTERVENORs reliance on the opinion made in the
Labo, Jr. case[52] to wit: if the electorate, fully aware in fact and in law of a
candidates disqualification so as to bring such awareness within the realm of
notoriety, would nevertheless cast their votes in favor of the ineligible candidate,
the electorate may be said to have waived the validity and efficacy of their votes by
notoriously misapplying their franchise or throwing away their votes, in which case,
the eligible candidate obtaining the next higher number of votes may be deemed
elected, is misplaced.
Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the
public as an ineligible candidate. Although the resolution declaring him ineligible as
candidate was rendered before the election, however, the same is not yet final and
executory. In fact, it was no less than the COMELEC in its Supplemental Omnibus
Resolution No. 3046 that allowed DOMINO to be voted for the office and ordered
that the votes cast for him be counted as the Resolution declaring him ineligible has
not yet attained finality. Thus the votes cast for DOMINO are presumed to have
been cast in the sincere belief that he was a qualified candidate, without any
intention to misapply their franchise. Thus, said votes can not be treated as stray,
void, or meaningless.[53]
WHEREFORE, the instant petition is DISMISSED. The resolution dated 6 May 1998 of
the COMELEC 2nd Division and the decision dated 29 May 1998 of the COMELEC En
Banc, are hereby AFFIRMED.
SO ORDERED.
Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Buena, Gonzaga-Reyes,
and Ynares-Santiago, JJ., concur.
Panganiban, J., in the result; please see separate opinion.
Quisumbing, J., in the result, only insofar as petitioner Domino is adjudged
DISQUALIFIED.
Purisima, and Pardo, JJ., took no part.

Japzon v. Comelec

EN BANC
MANUEL B. JAPZON,
Petitioner,

- versus -

COMMISSION ON ELECTIONS and JAIME S. TY,

Respondents.
G.R. No. 180088
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
DE CASTRO, and
BRION, JJ.
Promulgated:
January 19, 2009
x---------------------------- -----------------------x
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari under Rules 64[1] and 65[2] of the
Revised Rules of Court seeking to annul and set aside the Resolution[3] dated 31
July 2007 of the First Division of public respondent Commission on Elections
(COMELEC) and the Resolution[4] dated 28 September 2007 of COMELEC en banc,
in SPA No. 07-568, for having been rendered with grave abuse of discretion,
amounting to lack or excess of jurisdiction.

Both petitioner Manuel B. Japzon (Japzon) and private respondent Jaime S. Ty (Ty)
were candidates for the Office of Mayor of the Municipality of General Macarthur,
Eastern Samar, in the local elections held on 14 May 2007.
On 15 June 2007, Japzon instituted SPA No. 07-568 by filing before the COMELEC a
Petition[5] to disqualify and/or cancel Tys Certificate of Candidacy on the ground of
material misrepresentation. Japzon averred in his Petition that Ty was a former
natural-born Filipino, having been born on 9 October 1943 in what was then
Pambujan Sur, Hernani Eastern Samar (now the Municipality of General Macarthur,
Easter Samar) to spouses Ang Chim Ty (a Chinese) and Crisanta Aranas Sumiguin (a
Filipino). Ty eventually migrated to the United States of America (USA) and became
a citizen thereof. Ty had been residing in the USA for the last 25 years. When Ty
filed his Certificate of Candidacy on 28 March 2007, he falsely represented therein
that he was a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar,
for one year before 14 May 2007, and was not a permanent resident or immigrant of
any foreign country. While Ty may have applied for the reacquisition of his
Philippine citizenship, he never actually resided in Barangay 6, Poblacion, General
Macarthur, Eastern Samar, for a period of one year immediately preceding the date
of election as required under Section 39 of Republic Act No. 7160, otherwise known
as the Local Government Code of 1991. In fact, even after filing his application for
reacquisition of his Philippine citizenship, Ty continued to make trips to the USA, the
most recent of which was on 31 October 2006 lasting until 20 January 2007.
Moreover, although Ty already took his Oath of Allegiance to the Republic of the
Philippines, he continued to comport himself as an American citizen as proven by
his travel records. He had also failed to renounce his foreign citizenship as required
by Republic Act No. 9225, otherwise known as the Citizenship Retention and
Reacquisition Act of 2003, or related laws. Hence, Japzon prayed for in his Petition
that the COMELEC order the disqualification of Ty from running for public office and
the cancellation of the latters Certificate of Candidacy.
In his Answer[6] to Japzons Petition in SPA No. 07-568, Ty admitted that he
was a natural-born Filipino who went to the USA to work and subsequently became
a naturalized American citizen. Ty claimed, however, that prior to filing his
Certificate of Candidacy for the Office of Mayor of the Municipality of General
Macarthur, Eastern Samar, on 28 March 2007, he already performed the following
acts: (1) with the enactment of Republic Act No. 9225, granting dual citizenship to
natural-born Filipinos, Ty filed with the Philippine Consulate General in Los Angeles,
California, USA, an application for the reacquisition of his Philippine citizenship; (2)
on 2 October 2005, Ty executed an Oath of Allegiance to the Republic of the
Philippines before Noemi T. Diaz, Vice Consul of the Philippine Consulate General in
Los Angeles, California, USA; (3) Ty applied for a Philippine passport indicating in his
application that his residence in the Philippines was at A. Mabini St., Barangay 6,
Poblacion, General Macarthur, Eastern Samar. Tys application was approved and he
was issued on 26 October 2005 a Philippine passport; (4) on 8 March 2006, Ty
personally secured and signed his Community Tax Certificate (CTC) from the
Municipality of General Macarthur, in which he stated that his address was at
Barangay 6, Poblacion, General Macarthur, Eastern Samar; (5) thereafter, on 17 July
2006, Ty was registered as a voter in Precinct 0013A, Barangay 6, Poblacion,
General Macarthur, Eastern Samar; (6) Ty secured another CTC dated 4 January
2007 again stating therein his address as Barangay 6, Poblacion, General

Macarthur, Eastern Samar; and (7) finally, Ty executed on 19 March 2007 a duly
notarized Renunciation of Foreign Citizenship. Given the aforementioned facts, Ty
argued that he had reacquired his Philippine citizenship and renounced his
American citizenship, and he had been a resident of the Municipality of General
Macarthur, Eastern Samar, for more than one year prior to the 14 May 2007
elections. Therefore, Ty sought the dismissal of Japzons Petition in SPA No. 07-568.
Pending the submission by the parties of their respective Position Papers in
SPA No. 07-568, the 14 May 2007 elections were already held. Ty acquired the
highest number of votes and was declared Mayor of the Municipality of General
Macarthur, Eastern Samar, by the Municipal Board of Canvassers on 15 May 2007.
[7]
Following the submission of the Position Papers of both parties, the COMELEC
First Division rendered its Resolution[8] dated 31 July 2007 in favor of Ty.
The COMELEC First Division found that Ty complied with the requirements of
Sections 3 and 5 of Republic Act No. 9225 and reacquired his Philippine citizenship,
to wit:
Philippine citizenship is an indispensable requirement for holding an elective public
office, and the purpose of the citizenship qualification is none other than to ensure
that no alien, i.e., no person owing allegiance to another nation, shall govern our
people and our country or a unit of territory thereof. Evidences revealed that [Ty]
executed an Oath of Allegiance before Noemi T. Diaz, Vice Consul of the Philippine
Consulate General, Los Angeles, California, U.S.A. on October 2, 2005 and executed
a Renunciation of Foreign Citizenship on March 19, 2007 in compliance with R.A.
[No.] 9225. Moreover, neither is [Ty] a candidate for or occupying public office nor
is in active service as commissioned or non-commissioned officer in the armed
forces in the country of which he was naturalized citizen.[9]
The COMELEC First Division also held that Ty did not commit material
misrepresentation in stating in his Certificate of Candidacy that he was a resident of
Barangay 6, Poblacion, General Macarthur, Eastern Samar, for at least one year
before the elections on 14 May 2007. It reasoned that:
Although [Ty] has lost his domicile in [the] Philippines when he was naturalized as
U.S. citizen in 1969, the reacquisition of his Philippine citizenship and subsequent
acts thereof proved that he has been a resident of Barangay 6, Poblacion, General
Macarthur, Eastern Samar for at least one (1) year before the elections held on 14
May 2007 as he represented in his certificate of candidacy[.]
As held in Coquilla vs. Comelec:
The term residence is to be understood not in its common acceptation as
referring to dwelling or habitation, but rather to domicile or legal residence, that
is, the place where a party actually or constructively has his permanent home,
where he, no matter where he may be found at any given time, eventually intends
to return and remain (animus manendi). A domicile of origin is acquired by every

person at birth. It is usually the place where the childs parents reside and
continues until the same is abandoned by acquisition of new domicile (domicile of
choice).
In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S.
citizen after enlisting in the U.S. Navy in 1965. From then on and until November
10, 2000, when he reacquired Philippine citizenship, petitioner was an alien without
any right to reside in the Philippines save as our immigration laws may have
allowed him to stay as a visitor or as a resident alien.
Indeed, residence in the United States is a requirement for naturalization as a U.S.
citizen. Title 8, 1427(a) of the United States Code provides:
Requirements of naturalization: Residence
(a) No person, except as otherwise provided in this subchapter, shall be naturalized
unless such applicant, (1) year immediately preceding the date of filing his
application for naturalization has resided continuously, after being lawfully admitted
for permanent residence, within the United States for at least five years and during
the five years immediately preceding the date of filing his petition has been
physically present therein for periods totaling at least half of that time, and who has
resided within the State or within the district of the Service in the United States in
which the applicant filed the application for at least three months, (2) has resided
continuously within the United States from the date of the application up to the time
of admission to citizenship, and (3) during all period referred to in this subsection
has been and still is a person of good moral character, attached to the principles of
the Constitution of the United States, and well disposed to the good order and
happiness of the United States. (Emphasis added)
In Caasi v. Court of Appeals, this Court ruled that immigration to the United States
by virtue of a greencard, which entitles one to reside permanently in that country,
constitutes abandonment of domicile in the Philippines. With more reason then
does naturalization in a foreign country result in an abandonment of domicile in the
Philippines.
Records showed that after taking an Oath of Allegiance before the Vice Consul of
the Philippine Consulate General on October 2, 2005, [Ty] applied and was issued a
Philippine passport on October 26, 2005; and secured a community tax certificate
from the Municipality of General Macarthur on March 8, 2006. Evidently, [Ty] was
already a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar for
more than one (1) year before the elections on May 14, 2007.[10] (Emphasis ours.)
The dispositive portion of the 31 July 2007 Resolution of the COMELEC First Division,
thus, reads:
WHEREFORE, premises considered, the petition is DENIED for lack of merit.[11]

Japzon filed a Motion for Reconsideration of the foregoing Resolution of the

COMELEC First Division. On 28 September 2007, the COMELEC en banc issued its
Resolution[12] denying Japzons Motion for Reconsideration and affirming the
assailed Resolution of the COMELEC First Division, on the basis of the following
ratiocination:
We have held that a Natural born Filipino who obtains foreign citizenship, and
subsequently spurns the same, is by clear acts of repatriation a Filipino Citizen and
hence qualified to run as a candidate for any local post.
xxxx
It must be noted that absent any showing of irregularity that overturns the
prevailing status of a citizen, the presumption of regularity remains. Citizenship is
an important aspect of every individuals constitutionally granted rights and
privileges. This is essential in determining whether one has the right to exercise
pre-determined political rights such as the right to vote or the right to be elected to
office and as such rights spring from citizenship.
Owing to its primordial importance, it is thus presumed that every person is a
citizen of the country in which he resides; that citizenship once granted is
presumably retained unless voluntarily relinquished; and that the burden rests upon
who alleges a change in citizenship and allegiance to establish the fact.
Our review of the Motion for Reconsideration shows that it does not raise any new or
novel issues. The arguments made therein have already been dissected and
expounded upon extensively by the first Division of the Commission, and there
appears to be no reason to depart from the wisdom of the earlier resolution. We
thus affirm that [Ty] did not commit any material misrepresentation when he
accomplished his Certificate of Candidacy.
The only ground for denial of a
Certificate of Candidacy would be when there was material misrepresentation
meant to mislead the electorate as to the qualifications of the candidate. There was
none in this case, thus there is not enough reason to deny due course to the
Certificate of Candidacy of Respondent James S. Ty.[13]
Failing to obtain a favorable resolution from the COMELEC, Japzon proceeded
to file the instant Petition for Certiorari, relying on the following grounds:
A.
THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY,
WHIMSICALLY AND WANTONLY DISREGARDED THE PARAMETERS SET BY LAW AND
JURISPRUDENCE FOR THE ACQUISITION OF A NEW DOMICILE OF CHOICE AND
RESIDENCE.[14]
B.
THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY,
WHIMSICALLY AND WANTONLY REFUSED TO CANCEL [TYS] CERTIFICATE OF
CANDIDACY, AND CONSEQUENTLY DECLARE [JAPZON] AS THE DULY ELECTED MAYOR
OF GEN. MACARTHUR, EASTERN SAMAR.[15]

Japzon argues that when Ty became a naturalized American citizen, he lost his
domicile of origin. Ty did not establish his residence in the Municipality of General
Macarthur, Eastern Samar, Philippines, just because he reacquired his Philippine
citizenship. The burden falls upon Ty to prove that he established a new domicile of
choice in General Macarthur, Eastern Samar, a burden which he failed to discharge.
Ty did not become a resident of General Macarthur, Eastern Samar, by merely
executing the Oath of Allegiance under Republic Act No. 9225.
Therefore, Japzon asserts that Ty did not meet the one-year residency requirement
for running as a mayoralty candidate in the 14 May 2007 local elections. The oneyear residency requirement for those running for public office cannot be waived or
liberally applied in favor of dual citizens. Consequently, Japzon believes he was the
only remaining candidate for the Office of Mayor of the Municipality of General
Macarthur, Eastern Samar, and is the only placer in the 14 May 2007 local elections.
Japzon prays for the Court to annul and set aside the Resolutions dated 31 July 2007
and 28 September 2007 of the COMELEC First Division and en banc, respectively; to
issue a new resolution denying due course to or canceling Tys Certificate of
Candidacy; and to declare Japzon as the duly elected Mayor of the Municipality of
General Macarthur, Eastern Samar.
As expected, Ty sought the dismissal of the present Petition. According to Ty, the
COMELEC already found sufficient evidence to prove that Ty was a resident of the
Municipality of General Macarthur, Eastern Samar, one year prior to the 14 May
2007 local elections. The Court cannot evaluate again the very same pieces of
evidence without violating the well-entrenched rule that findings of fact of the
COMELEC are binding on the Court. Ty disputes Japzons assertion that the
COMELEC committed grave abuse of discretion in rendering the assailed
Resolutions, and avers that the said Resolutions were based on the evidence
presented by the parties and consistent with prevailing jurisprudence on the matter.
Even assuming that Ty, the winning candidate for the Office of Mayor of the
Municipality of General Macarthur, Eastern Samar, is indeed disqualified from
running in the local elections, Japzon as the second placer in the same elections
cannot take his place.
The Office of the Solicitor General (OSG), meanwhile, is of the position that Ty
failed to meet the one-year residency requirement set by law to qualify him to run
as a mayoralty candidate in the 14 May 2007 local elections. The OSG opines that
Ty was unable to prove that he intended to remain in the Philippines for good and
ultimately make it his new domicile. Nonetheless, the OSG still prays for the
dismissal of the instant Petition considering that Japzon, gathering only the second
highest number of votes in the local elections, cannot be declared the duly elected
Mayor of the Municipality of General Macarthur, Eastern Samar, even if Ty is found
to be disqualified from running for the said position. And since it took a position
adverse to that of the COMELEC, the OSG prays from this Court to allow the
COMELEC to file its own Comment on Japzons Petition. The Court, however, no
longer acted on this particular prayer of the COMELEC, and with the submission of

the Memoranda by Japzon, Ty, and the OSG, it already submitted the case for
decision.
The Court finds no merit in the Petition at bar.
There is no dispute that Ty was a natural-born Filipino. He was born and raised in
the Municipality of General Macarthur, Eastern Samar, Philippines. However, he left
to work in the USA and eventually became an American citizen. On 2 October 2005,
Ty reacquired his Philippine citizenship by taking his Oath of Allegiance to the
Republic of the Philippines before Noemi T. Diaz, Vice Consul of the Philippine
Consulate General in Los Angeles, California, USA, in accordance with the provisions
of Republic Act No. 9225.[16] At this point, Ty still held dual citizenship, i.e.,
American and Philippine. It was only on 19 March 2007 that Ty renounced his
American citizenship before a notary public and, resultantly, became a pure
Philippine citizen again.
It bears to point out that Republic Act No. 9225 governs the manner in which a
natural-born Filipino may reacquire or retain[17] his Philippine citizenship despite
acquiring a foreign citizenship, and provides for his rights and liabilities under such
circumstances. A close scrutiny of said statute would reveal that it does not at all
touch on the matter of residence of the natural-born Filipino taking advantage of its
provisions. Republic Act No. 9225 imposes no residency requirement for the
reacquisition or retention of Philippine citizenship; nor does it mention any effect of
such reacquisition or retention of Philippine citizenship on the current residence of
the concerned natural-born Filipino. Clearly, Republic Act No. 9225 treats citizenship
independently of residence. This is only logical and consistent with the general
intent of the law to allow for dual citizenship. Since a natural-born Filipino may hold,
at the same time, both Philippine and foreign citizenships, he may establish
residence either in the Philippines or in the foreign country of which he is also a
citizen.
Residency in the Philippines only becomes relevant when the natural-born Filipino
with dual citizenship decides to run for public office.
Section 5(2) of Republic Act No. 9225 reads:
SEC. 5. Civil and Political Rights and Liabilities. Those who retain or reacquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:
xxxx
(2)
Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath.

Breaking down the afore-quoted provision, for a natural born Filipino, who
reacquired or retained his Philippine citizenship under Republic Act No. 9225, to run
for public office, he must: (1) meet the qualifications for holding such public office
as required by the Constitution and existing laws; and (2) make a personal and
sworn renunciation of any and all foreign citizenships before any public officer
authorized to administer an oath.
That Ty complied with the second requirement is beyond question. On 19
March 2007, he personally executed a Renunciation of Foreign Citizenship before a
notary public. By the time he filed his Certificate of Candidacy for the Office of
Mayor of the Municipality of General Macarthur, Eastern Samar, on 28 March 2007,
he had already effectively renounced his American citizenship, keeping solely his
Philippine citizenship.
The other requirement of Section 5(2) of Republic Act No. 9225 pertains to
the qualifications required by the Constitution and existing laws.
Article X, Section 3 of the Constitution left it to Congress to enact a local
government code which shall provide, among other things, for the qualifications,
election, appointment and removal, term, salaries, powers and functions and duties
of local officials, and all other matters relating to the organization and operation of
the local units.
Pursuant to the foregoing mandate, Congress enacted Republic Act No. 7160,
the Local Government Code of 1991, Section 39 of which lays down the following
qualifications for local elective officials:
SEC. 39. Qualifications. (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city or province or, in
the case of a member of the sangguniang panlalawigan, sangguniang panlungsod,
or sanggunian bayan, the district where he intends to be elected; a resident therein
for at least one (1) year immediately preceding the day of the election; and able to
read and write Filipino or any other local language or dialect.
xxxx
(c) Candidates for the position of mayor or vice mayor of independent component
cities, component cities, or municipalities must be at least twenty-one (21) years of
age on election day.
The challenge against Tys qualification to run as a candidate for the Office of
Mayor of the Municipality of General Macarthur, Eastern Samar, centers on his
purported failure to meet the one-year residency requirement in the said
municipality.
The term residence is to be understood not in its common acceptation as
referring to dwelling or habitation, but rather to domicile or legal residence,
that is, the place where a party actually or constructively has his permanent home,

where he, no matter where he may be found at any given time, eventually intends
to return and remain (animus manendi).[18]
A domicile of origin is acquired by every person at birth. It is usually the place
where the childs parents reside and continues until the same is abandoned by
acquisition of new domicile (domicile of choice). In Coquilla,[19] the Court already
acknowledged that for an individual to acquire American citizenship, he must
establish residence in the USA. Since Ty himself admitted that he became a
naturalized American citizen, then he must have necessarily abandoned the
Municipality of General Macarthur, Eastern Samar, Philippines, as his domicile of
origin; and transferred to the USA, as his domicile of choice.
As has already been previously discussed by this Court herein, Tys reacquisition of
his Philippine citizenship under Republic Act No. 9225 had no automatic impact or
effect on his residence/domicile. He could still retain his domicile in the USA, and he
did not necessarily regain his domicile in the Municipality of General Macarthur,
Eastern Samar, Philippines. Ty merely had the option to again establish his domicile
in the Municipality of General Macarthur, Eastern Samar, Philippines, said place
becoming his new domicile of choice. The length of his residence therein shall be
determined from the time he made it his domicile of choice, and it shall not retroact
to the time of his birth.
How then could it be established that Ty indeed established a new domicile in
the Municipality of General Macarthur, Eastern Samar, Philippines?
In Papandayan, Jr. v. Commission on Elections,[20] the Court provided a
summation of the different principles and concepts in jurisprudence relating to the
residency qualification for elective local officials. Pertinent portions of the ratio in
Papandayan are reproduced below:
Our decisions have applied certain tests and concepts in resolving the issue of
whether or not a candidate has complied with the residency requirement for
elective positions. The principle of animus revertendi has been used to determine
whether a candidate has an intention to return to the place where he seeks to be
elected.
Corollary to this is a determination whether there has been an
abandonment of his former residence which signifies an intention to depart
therefrom. In Caasi v. Court of Appeals, this Court set aside the appealed orders of
the COMELEC and the Court of Appeals and annulled the election of the respondent
as Municipal Mayor of Bolinao, Pangasinan on the ground that respondents
immigration to the United States in 1984 constituted an abandonment of his
domicile and residence in the Philippines. Being a green card holder, which was
proof that he was a permanent resident or immigrant of the United States, and in
the absence of any waiver of his status as such before he ran for election on January
18, 1988, respondent was held to be disqualified under 68 of the Omnibus Election
Code of the Philippines (Batas Pambansa Blg. 881).
In Co v. Electoral Tribunal of the House of Representatives, respondent Jose Ong, Jr.
was proclaimed the duly elected representative of the 2nd District of Northern
Samar. The House of Representatives Electoral Tribunal (HRET) upheld his election
against claims that he was not a natural born Filipino citizen and a resident of

Laoang, Northern Samar. In sustaining the ruling of the HRET, this Court, citing
Faypon v. Quirino, applied the concept of animus revertendi or intent to return,
stating that his absence from his residence in order to pursue studies or practice his
profession as a certified public accountant in Manila or his registration as a voter
other than in the place where he was elected did not constitute loss of residence.
The fact that respondent made periodical journeys to his home province in Laoag
revealed that he always had animus revertendi.
In Abella v. Commission on Elections and Larrazabal v. Commission on Elections, it
was explained that the determination of a persons legal residence or domicile
largely depends upon the intention that may be inferred from his acts, activities,
and utterances. In that case, petitioner Adelina Larrazabal, who had obtained the
highest number of votes in the local elections of February 1, 1988 and who had thus
been proclaimed as the duly elected governor, was disqualified by the COMELEC for
lack of residence and registration qualifications, not being a resident nor a
registered voter of Kananga, Leyte. The COMELEC ruled that the attempt of
petitioner Larrazabal to change her residence one year before the election by
registering at Kananga, Leyte to qualify her to run for the position of governor of the
province of Leyte was proof that she considered herself a resident of Ormoc City.
This Court affirmed the ruling of the COMELEC and held that petitioner Larrazabal
had established her residence in Ormoc City, not in Kananga, Leyte, from 1975 up
to the time that she ran for the position of Provincial Governor of Leyte on February
1, 1988. There was no evidence to show that she and her husband maintained
separate residences, i.e., she at Kananga, Leyte and her husband at Ormoc City.
The fact that she occasionally visited Kananga, Leyte through the years did not
signify an intention to continue her residence after leaving that place.
In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that domicile and
residence are synonymous. The term residence, as used in the election law,
imports not only an intention to reside in a fixed place but also personal presence in
that place, coupled with conduct indicative of such intention. Domicile denotes a
fixed permanent residence to which when absent for business or pleasure, or for like
reasons, one intends to return. In that case, petitioner Philip G. Romualdez
established his residence during the early 1980s in Barangay Malbog, Tolosa, Leyte.
It was held that the sudden departure from the country of petitioner, because of the
EDSA Peoples Power Revolution of 1986, to go into self-exile in the United States
until favorable conditions had been established, was not voluntary so as to
constitute an abandonment of residence. The Court explained that in order to
acquire a new domicile by choice, there must concur (1) residence or bodily
presence in the new locality, (2) an intention to remain there, and (3) an intention to
abandon the old domicile. There must be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be for an
indefinite period of time; the change of residence must be voluntary; and the
residence at the place chosen for the new domicile must be actual.
Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact of residence
that is the decisive factor in determining whether or not an individual has satisfied
the residency qualification requirement.

As espoused by Ty, the issue of whether he complied with the one-year residency
requirement for running for public office is a question of fact. Its determination
requires the Court to review, examine and evaluate or weigh the probative value of
the evidence presented by the parties before the COMELEC.
The COMELEC, taking into consideration the very same pieces of evidence presently
before this Court, found that Ty was a resident of the Municipality of General
Macarthur, Eastern Samar, one year prior to the 14 May 2007 local elections. It is
axiomatic that factual findings of administrative agencies, such as the COMELEC,
which have acquired expertise in their field are binding and conclusive on the Court.
An application for certiorari against actions of the COMELEC is confined to instances
of grave abuse of discretion amounting to patent and substantial denial of due
process, considering that the COMELEC is presumed to be most competent in
matters falling within its domain.[21]
The Court even went further to say that the rule that factual findings of
administrative bodies will not be disturbed by courts of justice, except when there is
absolutely no evidence or no substantial evidence in support of such findings,
should be applied with greater force when it concerns the COMELEC, as the framers
of the Constitution intended to place the COMELECcreated and explicitly made
independent by the Constitution itselfon a level higher than statutory
administrative organs. The factual finding of the COMELEC en banc is therefore
binding on the Court.[22]
The findings of facts of quasi-judicial agencies which have acquired expertise in the
specific matters entrusted to their jurisdiction are accorded by this Court not only
respect but even finality if they are supported by substantial evidence. Only
substantial, not preponderance, of evidence is necessary. Section 5, Rule 133 of the
Rules of Court provides that in cases filed before administrative or quasi-judicial
bodies, a fact may be deemed established if it is supported by substantial evidence,
or that amount of relevant evidence which a reasonable mind might accept as
adequate to justify a conclusion.[23]
The assailed Resolutions dated 31 July 2007 and 28 September 2007 of the
COMELEC First Division and en banc, respectively, were both supported by
substantial evidence and are, thus, binding and conclusive upon this Court.
Tys intent to establish a new domicile of choice in the Municipality of General
Macarthur, Eastern Samar, Philippines, became apparent when, immediately after
reacquiring his Philippine citizenship on 2 October 2005, he applied for a Philippine
passport indicating in his application that his residence in the Philippines was at A.
Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern Samar. For the years
2006 and 2007, Ty voluntarily submitted himself to the local tax jurisdiction of the
Municipality of General Macarthur, Eastern Samar, by paying community tax and
securing CTCs from the said municipality stating therein his address as A. Mabini St.,
Barangay 6, Poblacion, General Macarthur, Eastern Samar. Thereafter, Ty applied
for and was registered as a voter on 17 July 2006 in Precinct 0013A, Barangay 6,
Poblacion, General Macarthur, Eastern Samar.

In addition, Ty has also been bodily present in the Municipality of General

Macarthur, Eastern Samar, Philippines, since his arrival on 4 May 2006, inarguably,
just a little over a year prior to the 14 May 2007 local elections. Japzon maintains
that Tys trips abroad during said period, i.e., to Bangkok, Thailand (from 14 to 18
July 2006), and to the USA (from 31 October 2006 to 19 January 2007), indicate that
Ty had no intention to permanently reside in the Municipality of General Macarthur,
Eastern Samar, Philippines. The COMELEC First Division and en banc, as well as this
Court, however, view these trips differently. The fact that Ty did come back to the
Municipality of General Macarthur, Eastern Samar, Philippines, after said trips, is a
further manifestation of his animus manendi and animus revertendi.
There is no basis for this Court to require Ty to stay in and never leave at all the
Municipality of General Macarthur, Eastern Samar, for the full one-year period prior
to the 14 May 2007 local elections so that he could be considered a resident thereof.
To the contrary, the Court has previously ruled that absence from residence to
pursue studies or practice a profession or registration as a voter other than in the
place where one is elected, does not constitute loss of residence.[24] The Court
also notes, that even with his trips to other countries, Ty was actually present in the
Municipality of General Macarthur, Eastern Samar, Philippines, for at least nine of
the 12 months preceding the 14 May 2007 local elections. Even if length of actual
stay in a place is not necessarily determinative of the fact of residence therein, it
does strongly support and is only consistent with Tys avowed intent in the instant
case to establish residence/domicile in the Municipality of General Macarthur,
Eastern Samar.
Japzon repeatedly brings to the attention of this Court that Ty arrived in the
Municipality of General Macarthur, Eastern Samar, on 4 May 2006 only to comply
with the one-year residency requirement, so Ty could run as a mayoralty candidate
in the 14 May 2007 elections. In Aquino v. COMELEC,[25] the Court did not find
anything wrong in an individual changing residences so he could run for an elective
post, for as long as he is able to prove with reasonable certainty that he has
effected a change of residence for election law purposes for the period required by
law. As this Court already found in the present case, Ty has proven by substantial
evidence that he had established residence/domicile in the Municipality of General
Macarthur, Eastern Samar, by 4 May 2006, a little over a year prior to the 14 May
2007 local elections, in which he ran as a candidate for the Office of the Mayor and
in which he garnered the most number of votes.
Finally, when the evidence of the alleged lack of residence qualification of a
candidate for an elective position is weak or inconclusive and it clearly appears that
the purpose of the law would not be thwarted by upholding the victors right to the
office, the will of the electorate should be respected. For the purpose of election
laws is to give effect to, rather than frustrate, the will of the voters.[26] To
successfully challenge Tys disqualification, Japzon must clearly demonstrate that
Tys ineligibility is so patently antagonistic to constitutional and legal principles that
overriding such ineligibility and thereby giving effect to the apparent will of the
people would ultimately create greater prejudice to the very democratic institutions
and juristic traditions that our Constitution and laws so zealously protect and
promote. In this case, Japzon failed to substantiate his claim that Ty is ineligible to
be Mayor of the Municipality of General Macarthur, Eastern Samar, Philippines.

WHEREFORE, premises considered, the instant Petition for Certiorari is DISMISSED.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

Lewis v. Comelec
/---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---\
[2006V877E] LOIDA NICOLAS-LEWIS, GREGORIO B. MACABENTA, ALEJANDRO A.
ESCLAMADO, ARMANDO B. HEREDIA, REUBEN S. SEGURITAN, ERIC LACHICA
FURBEYRE, TERESITA A. CRUZ, JOSEFINA OPENA DISTERHOFT, MERCEDES V. OPENA,
CORNELIO R. NATIVIDAD, EVELYN D. NATIVIDAD, Petitioners, versus COMMISSION ON
ELECTIONS, Respondent.2006 Aug 4En BancG.R. No. 162759D E C I S I O N
GARCIA, J.:
In this petition for certiorari and mandamus, petitioners, referring to
themselves as "duals" or dual citizens, pray that they and others who retained or
reacquired Philippine citizenship under Republic Act (R.A.) No. 9225, the Citizenship
Retention and Re-Acquisition Act of 2003, be allowed to avail themselves of the
mechanism provided under the Overseas Absentee Voting Act of 2003[1] (R.A.
9189) and that the Commission on Elections (COMELEC) accordingly be ordered to
allow them to vote and register as absentee voters under the aegis of R.A. 9189.
The facts:
Petitioners are successful applicants for recognition of Philippine citizenship
under R.A. 9225 which accords to such applicants the right of suffrage, among
others. Long before the May 2004 national and local elections, petitioners sought
registration and certification as "overseas absentee voter" only to be advised by the
Philippine Embassy in the United States that, per a COMELEC letter to the
Department of Foreign Affairs dated September 23, 2003[2], they have yet no right
to vote in such elections owing to their lack of the one-year residence requirement
prescribed by the Constitution. The same letter, however, urged the different
Philippine posts abroad not to discontinue their campaign for voters registration, as
the residence restriction adverted to would contextually affect merely certain
individuals who would likely be eligible to vote in future elections.

Prodded for clarification by petitioner Loida Nicolas-Lewis in the light of the

ruling in Macalintal vs. COMELEC [3] on the residency requirement, the COMELEC
wrote in response:
Although R.A. 9225 enjoys the presumption of constitutionality , it is the
Commission's position that those who have availed of the law cannot exercise the
right of suffrage given under the OAVL for the reason that the OAVL was not enacted
for them. Hence, as Filipinos who have merely re-acquired their citizenship on 18
September 2003 at the earliest, and as law and jurisprudence now stand, they are
considered regular voters who have to meet the requirements of residency, among
others under Section 1, Article 5 of the Constitution. [4]
Faced with the prospect of not being able to vote in the May 2004 elections
owing to the COMELEC's refusal to include them in the National Registry of
Absentee Voters, petitioner Nicolas-Lewis et al., [5] filed on April 1, 2004 this
petition for certiorari and mandamus.
A little over a week before the May 10, 2004 elections, or on April 30, 2004,
the COMELEC filed a Comment,[6] therein praying for the denial of the petition. As
may be expected, petitioners were not able to register let alone vote in said
elections.
On May 20, 2004, the Office of the Solicitor General (OSG) filed a
Manifestation (in Lieu of Comment), therein stating that all qualified overseas
Filipinos, including dual citizens who care to exercise the right of suffrage, may do
so , observing, however, that the conclusion of the 2004 elections had rendered
the petition moot and academic.[7]
The holding of the 2004 elections had, as the OSG pointed out, indeed
rendered the petition moot and academic, but insofar only as petitioners
participation in such political exercise is concerned. The broader and transcendental
issue tendered or subsumed in the petition, i.e., the propriety of allowing duals to
participate and vote as absentee voter in future elections, however, remains
unresolved.
Observing the petitioners and the COMELECs respective formulations of the
issues, the same may be reduced into the question of whether or not petitioners
and others who might have meanwhile retained and/or reacquired Philippine
citizenship pursuant to R.A. 9225 may vote as absentee voter under R.A. 9189.
The Court resolves the poser in the affirmative, and thereby accords merit to
the petition.
In esse, this case is all about suffrage. A quick look at the governing
provisions on the right of suffrage is, therefore, indicated.
We start off with Sections 1 and 2 of Article V of the Constitution, respectively
reading as follows:

SECTION 1. Suffrage may be exercised by all citizens of the Philippines not

otherwise disqualified by law, who are at least eighteen years of age, and who shall
have resided in the Philippines for at least one year and in the place wherein they
propose to vote for at least six months immediately preceding the election. xxx.
SEC 2. The Congress shall provide a system for absentee voting by
qualified Filipinos abroad.
In a nutshell, the aforequoted Section 1 prescribes residency requirement as a
general eligibility factor for the right to vote. On the other hand, Section 2
authorizes Congress to devise a system wherein an absentee may vote, implying
that a non-resident may, as an exception to the residency prescription in the
preceding section, be allowed to vote.
In response to its above mandate, Congress enacted R.A. 9189 - the OAVL[8] identifying in its Section 4 who can vote under it and in the following section who
cannot, as follows:
Section 4. Coverage. All citizens of the Philippines abroad, who are not
otherwise disqualified by law, at least eighteen (18) years of age on the day of
elections, may vote for president, vice-president, senators and party-list
representatives.
Section 5. Disqualifications. The following shall be disqualified from voting
under this Act:
(a)
Philippine laws;

Those who have lost their Filipino citizenship in accordance with

(b)
Those who have expressly renounced their Philippine citizenship and
who have pledged allegiance to a foreign country;
(c)
Those who have [been] convicted in a final judgment by a court or
tribunal of an offense punishable by imprisonment of not less than one (1) year,
including those who have been found guilty of Disloyalty as defined under Article
137 of the Revised Penal Code, .;
(d)
An immigrant or a permanent resident who is recognized as such in
the host country, unless he/she executes, upon registration, an affidavit prepared
for the purpose by the Commission declaring that he/she shall resume actual
physical permanent residence in the Philippines not later than three (3) years from
approval of his/her registration under this Act. Such affidavit shall also state that
he/she has not applied for citizenship in another country. Failure to return shall be
the cause for the removal of the name of the immigrant or permanent resident from
the National Registry of Absentee Voters and his/her permanent disqualification to
vote in absentia.
(e)
Any citizen of the Philippines abroad previously declared insane or
incompetent by competent authority . (Words in bracket added.)

Notably, Section 5 lists those who cannot avail themselves of the absentee
voting mechanism. However, Section 5(d) of the enumeration respecting Filipino
immigrants and permanent residents in another country opens an exception and
qualifies the disqualification rule. Section 5(d) would, however, face a constitutional
challenge on the ground that, as narrated in Macalintal, it violates Section 1, Article V of the 1987 Constitution which requires that
the voter must be a resident in the Philippines for at least one year and in the place
where he proposes to vote for at least six months immediately preceding an
election. [The challenger] cites Caasi vs. Court of Appeals [9] to support his
claim [where] the Court held that a green card holder immigrant to the [US] is
deemed to have abandoned his domicile and residence in the Philippines.
[The challenger] further argues that Section 1, Article V of the Constitution
does not allow provisional registration or a promise by a voter to perform a
condition to be qualified to vote in a political exercise; that the legislature should
not be allowed to circumvent the requirement of the Constitution on the right of
suffrage by providing a condition thereon which in effect amends or alters the
aforesaid residence requirement to qualify a Filipino abroad to vote. He claims that
the right of suffrage should not be granted to anyone who, on the date of the
election, does not possess the qualifications provided for by Section 1, Article V of
the Constitution.[10] (Words in bracket added.)
As may be recalled, the Court upheld the constitutionality of Section 5(d) of
R.A. 9189 mainly on the strength of the following premises:
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically
disqualifies an immigrant or permanent resident who is recognized as such in the
host country because immigration or permanent residence in another country
implies renunciation of one's residence in his country of origin. However, same
Section allows an immigrant and permanent resident abroad to register as voter for
as long as he/she executes an affidavit to show that he/she has not abandoned his
domicile in pursuance of the constitutional intent expressed in Sections 1 and 2 of
Article V that all citizens of the Philippines not otherwise disqualified by law must
be entitled to exercise the right of suffrage and, that Congress must establish a
system for absentee voting; for otherwise, if actual, physical residence in the
Philippines is required, there is no sense for the framers of the Constitution to
mandate Congress to establish a system for absentee voting.
Contrary to the claim of [the challenger], the execution of the affidavit itself
is not the enabling or enfranchising act. The affidavit required in Section 5(d) is not
only proof of the intention of the immigrant or permanent resident to go back and
resume residency in the Philippines, but more significantly, it serves as an explicit
expression that he had not in fact abandoned his domicile of origin. Thus, it is not
correct to say that the execution of the affidavit under Section 5(d) violates the
Constitution that proscribes provisional registration or a promise by a voter to
perform a condition to be qualified to vote in a political exercise. [11]
Soon after Section 5(d) of R.A. 9189 passed the test of constitutionality,
Congress enacted R.A. 9225 the relevant portion of which reads:

SEC. 2. Declaration of Policy. It is hereby declared the policy of the State

that all Philippine citizens who become citizens of another country shall be deemed
not to have lost their Philippine citizenship under the conditions of this Act.
SEC. 3. Retention of Philippine Citizenship. Any provision of law to the
contrary notwithstanding, natural-born citizens of the Philippines who have lost their
Philippine citizenship by reason of their naturalization as citizens of a foreign
country are hereby deemed to have re-acquired Philippine citizenship upon taking
the following oath of allegiance to the Republic:
xxx

xxx

xxx

Natural-born citizens of the Philippines who, after the effectivity of this Act,
become citizens of a foreign country shall retain their Philippine citizenship upon
taking the aforesaid oath.
SEC. 4. Derivative Citizenship. The unmarried child, whether legitimate,
illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire
Philippine citizenship upon effectivity of this Act shall be deemed citizens of the
Philippines.
SEC. 5. Civil and Political Rights and Liabilities. Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights
and be subject to all attendant liabilities and responsibilities under existing laws of
the Philippines and the following conditions:
(1)
Those intending to exercise their right of suffrage must meet the
requirements under Section 1, Article V of the Constitution, Republic Act No. 9189,
otherwise known as The Overseas Absentee Voting Act of 2003 and other existing
laws;
(2)
Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship ;
3)

xxx

xxx

xxx.

(4) xxx

xxx

xxx;

(5)
That right to vote or be elected or appointed to any public office in
the Philippines cannot be exercised by, or extended to, those who:
(a)
are candidates for or are occupying any public office in the country
of which they are naturalized citizens; and/or
(b)
are in active service as commissioned or non-commissioned officers
in the armed forces of the country which they are naturalized citizens.

After what appears to be a successful application for recognition of Philippine

citizenship under R.A. 9189, petitioners now invoke their right to enjoy political
rights, specifically the right of suffrage, pursuant to Section 5 thereof.
Opposing the petitioners bid, however, respondent COMELEC invites
attention to the same Section 5 (1) providing that duals can enjoy their right to
vote, as an adjunct to political rights, only if they meet the requirements of Section
1, Article V of the Constitution, R.A. 9189 and other existing laws. Capitalizing on
what at first blush is the clashing provisions of the aforecited provision of the
Constitution, which, to repeat, requires residency in the Philippines for a certain
period, and R.A. 9189 which grants a Filipino non-resident absentee voting rights,
[12] COMELEC argues:
4.
DUALS MUST FIRST ESTABLISH THEIR DOMICILE/ RESIDENCE IN THE
PHILIPPINES
4.01.
The inclusion of such additional and specific requirements in RA 9225 is
logical. The duals, upon renouncement of their Filipino citizenship and acquisition
of foreign citizenship, have practically and legally abandoned their domicile and
severed their legal ties to the homeland as a consequence. Having subsequently
acquired a second citizenship (i.e., Filipino) then, duals must, for purposes of
voting, first of all, decisively and definitely establish their domicile through positive
acts; [13]
The Court disagrees.
As may be noted, there is no provision in the dual citizenship law - R.A. 9225 requiring "duals" to actually establish residence and physically stay in the
Philippines first before they can exercise their right to vote. On the contrary, R.A.
9225, in implicit acknowledgment that duals are most likely non-residents, grants
under its Section 5(1) the same right of suffrage as that granted an absentee voter
under R.A. 9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to
enfranchise as much as possible all overseas Filipinos who, save for the residency
requirements exacted of an ordinary voter under ordinary conditions, are qualified
to vote. Thus, wrote the Court in Macalintal:
It is clear from these discussions of the Constitutional Commission that
[it] intended to enfranchise as much as possible all Filipino citizens abroad who have
not abandoned their domicile of origin. The Commission even intended to extend to
young Filipinos who reach voting age abroad whose parents domicile of origin is in
the Philippines, and consider them qualified as voters for the first time.
It is in pursuance of that intention that the Commission provided for Section
2 [Article V] immediately after the residency requirement of Section 1. By the
doctrine of necessary implication in statutory construction, , the strategic location
of Section 2 indicates that the Constitutional Commission provided for an exception
to the actual residency requirement of Section 1 with respect to qualified Filipinos
abroad. The same Commission has in effect declared that qualified Filipinos who
are not in the Philippines may be allowed to vote even though they do not satisfy
the residency requirement in Section 1, Article V of the Constitution.

That Section 2 of Article V of the Constitution is an exception to the

residency requirement found in Section 1 of the same Article was in fact the subject
of debate when Senate Bill No. 2104, which became R.A. No. 9189, was deliberated
upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in relation to
the constitutional provisions. I think the sponsor and I would agree that the
Constitution is supreme in any statute that we may enact.
Let me read Section 1, Article V, of the Constitution .
xxx

xxx

xxx

Now, Mr. President, the Constitution says, who shall have resided in the
Philippines. They are permanent immigrants. They have changed residence so
they are barred under the Constitution. This is why I asked whether this committee
amendment which in fact does not alter the original text of the bill will have any
effect on this?
Senator Angara. Good question, Mr. President. And this has been asked in
various fora. This is in compliance with the Constitution. One, the interpretation
here of residence is synonymous with domicile.
As the gentleman and I know, Mr. President, domicile is the intent to return
to one's home. And the fact that a Filipino may have been physically absent from
the Philippines and may be physically a resident of the United States, for example,
but has a clear intent to return to the Philippines, will make him qualified as a
resident of the Philippines under this law.
This is consistent, Mr. President, with the constitutional mandate that we
that Congress must provide a franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle literally as demanding
physical presence, then there is no way we can provide for offshore voting to our
offshore kababayan, Mr. President.
Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of
Article V, it reads: The Congress shall provide a system for securing the secrecy
and sanctity of the ballot as well as a system for absentee voting by qualified
Filipinos abroad.
The key to this whole exercise, Mr. President, is qualified. In other words,
anything that we may do or say in granting our compatriots abroad must be
anchored on the proposition that they are qualified. Absent the qualification, they
cannot vote. And residents (sic) is a qualification.
xxx

xxx

xxx

Look at what the Constitution says In the place wherein they propose to
vote for at least six months immediately preceding the election.
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros . We are separated only by a
creek. But one who votes in Makati cannot vote in Pateros unless he resides in
Pateros for six months. That is how restrictive our Constitution is. .
As I have said, if a voter in Makati would want to vote in Pateros, yes, he
may do so. But he must do so, make the transfer six months before the election,
otherwise, he is not qualified to vote.
xxx

xxx

xxx

Senator Angara. It is a good point to raise, Mr. President. But it is a point

already well-debated even in the constitutional commission of 1986. And the
reason Section 2 of Article V was placed immediately after the six-month/one-year
residency requirement is to demonstrate unmistakably that Section 2 which
authorizes absentee voting is an exception to the six-month/one-year residency
requirement. That is the first principle, Mr. President, that one must remember.
The second reason, Mr. President, is that under our jurisprudence
residency has been interpreted as synonymous with domicile.
But the third more practical reason, is, if we follow the interpretation
of the gentleman, then it is legally and constitutionally impossible to give a
franchise to vote to overseas Filipinos who do not physically live in the country,
which is quite ridiculous because that is exactly the whole point of this exercise
to enfranchise them and empower them to vote. [14] (Emphasis and words in
bracket added; citations omitted)
Lest it be overlooked, no less than the COMELEC itself admits that the
Citizenship Retention and Re-Acquisition Act expanded the coverage of overseas
absentee voting. According to the poll body:
1.05
With the passage of RA 9225 the scope of overseas absentee voting has
been consequently expanded so as to include Filipinos who are also citizens of other
countries, subject, however, to the strict prerequisites indicated in the pertinent
provisions of RA 9225; [15]
Considering the unison intent of the Constitution and R.A. 9189 and the
expansion of the scope of that law with the passage of R.A. 9225, the irresistible
conclusion is that "duals" may now exercise the right of suffrage thru the absentee
voting scheme and as overseas absentee voters. R.A. 9189 defines the terms
adverted to in the following wise:
Absentee Voting refers to the process by which qualified citizens of the
Philippines abroad exercise their right to vote;

Overseas Absentee Voter refers to a citizen of the Philippines who is

qualified to register and vote under this Act, not otherwise disqualified by law, who
is abroad on the day of elections;
While perhaps not determinative of the issue tendered herein, we note
that the expanded thrust of R.A. 9189 extends also to what might be tag as the next
generation of "duals". This may be deduced from the inclusion of the provision on
derivative citizenship in R.A. 9225 which reads:
SEC. 4. Derivative Citizenship. The unmarried child, whether legitimate,
illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire
Philippine citizenship upon effectivity of this Act shall be deemed citizens of the
Philippines.
It is very likely that a considerable number of those unmarried
children below eighteen (18) years of age had never set foot in the Philippines.
Now then, if the next generation of "duals" may nonetheless avail themselves the
right to enjoy full civil and political rights under Section 5 of the Act, then there is
neither no rhyme nor reason why the petitioners and other present day "duals,"
provided they meet the requirements under Section 1, Article V of the Constitution
in relation to R.A. 9189, be denied the right of suffrage as an overseas absentee
voter. Congress could not have plausibly intended such absurd situation.
WHEREFORE, the instant petition is GRANTED. Accordingly, the Court rules
and so holds that those who retain or re-acquire Philippine citizenship under
Republic Act No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003,
may exercise the right to vote under the system of absentee voting in Republic Act
No. 9189, the Overseas Absentee Voting Act of 2003.
SO ORDERED.
CANCIO C. GARCIA
Associate Justice

AASJS v. Datumanong
/---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---\
[2007V553E] AASJS (ADVOCATES AND ADHERENTS OF SOCIAL JUSTICE FOR SCHOOL
TEACHERS AND ALLIED WORKERS) MEMBER HECTOR GUMANGAN CALILUNG,
Petitioner, versus THE HONORABLE SIMEON DATUMANONG, in his official capacity
as the Secretary of Justice, Respondent.2007 May 11En BancG.R. No.
160869DECISION

QUISUMBING, J.:
This is an original action for prohibition under Rule 65 of the 1997 Revised Rules of
Civil Procedure.
Petitioner filed the instant petition against respondent, then Secretary of Justice
Simeon Datumanong, the official tasked to implement laws governing citizenship.[1]
Petitioner prays that a writ of prohibition be issued to stop respondent from
implementing Republic Act No. 9225, entitled An Act Making the Citizenship of
Philippine Citizens Who Acquire Foreign Citizenship Permanent, Amending for the
Purpose Commonwealth Act No. 63, As Amended, and for Other Purposes.
Petitioner avers that Rep. Act No. 9225 is unconstitutional as it violates Section 5,
Article IV of the 1987 Constitution that states, Dual allegiance of citizens is inimical
to the national interest and shall be dealt with by law.
Rep. Act No. 9225, signed into law by President Gloria M. Arroyo on August 29,
2003, reads:
SECTION 1. Short Title.This Act shall be known as the Citizenship Retention and
Reacquisition Act of 2003.
SEC. 2. Declaration of Policy.It is hereby declared the policy of the State that all
Philippine citizens who become citizens of another country shall be deemed not to
have lost their Philippine citizenship under the conditions of this Act.
SEC. 3. Retention of Philippine Citizenship.Any provision of law to the contrary
notwithstanding, natural-born citizens of the Philippines who have lost their
Philippine citizenship by reason of their naturalization as citizens of a foreign
country are hereby deemed to have reacquired Philippine citizenship upon taking
the following oath of allegiance to the Republic:
I ___________________________, solemnly swear (or affirm) that I will support and
defend the Constitution of the Republic of the Philippines and obey the laws and
legal orders promulgated by the duly constituted authorities of the Philippines; and I
hereby declare that I recognize and accept the supreme authority of the Philippines
and will maintain true faith and allegiance thereto; and that I impose this obligation
upon myself voluntarily without mental reservation or purpose of evasion.
Natural-born citizens of the Philippines who, after the effectivity of this Act,
become citizens of a foreign country shall retain their Philippine citizenship upon
taking the aforesaid oath.
SEC. 4. Derivative Citizenship. The unmarried child, whether legitimate,
illegitimate or adopted, below eighteen (18) years of age, of those who reacquire
Philippine citizenship upon effectivity of this Act shall be deemed citizens of the
Philippines.
SEC. 5. Civil and Political Rights and Liabilities. Those who retain or
reacquire Philippine citizenship under this Act shall enjoy full civil and political rights

and be subject to all attendant liabilities and responsibilities under existing laws of
the Philippines and the following conditions:
(1) Those intending to exercise their right of suffrage must meet the requirements
under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise
known as The Overseas Absentee Voting Act of 2003 and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and swear to an oath of
allegiance to the Republic of the Philippines and its duly constituted authorities prior
to their assumption of office: Provided, That they renounce their oath of allegiance
to the country where they took that oath;
(4) Those intending to practice their profession in the Philippines shall apply with
the proper authority for a license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public office in the
Philippines cannot be exercised by, or extended to, those who:
(a) are candidates for or are occupying any public office in the country of which they
are naturalized citizens; and/or
(b) are in the active service as commissioned or noncommissioned officers in the
armed forces of the country which they are naturalized citizens.
SEC. 6. Separability Clause. If any section or provision of this Act is held
unconstitutional or invalid, any other section or provision not affected thereby shall
remain valid and effective.
SEC. 7. Repealing Clause. All laws, decrees, orders, rules and regulations
inconsistent with the provisions of this Act are hereby repealed or modified
accordingly.
SEC. 8. Effectivity Clause. This Act shall take effect after fifteen (15) days following
its publication in the Official Gazette or two (2) newspapers of general circulation.
In this petition for prohibition, the following issues have been raised: (1) Is Rep. Act
No. 9225 unconstitutional? (2) Does this Court have jurisdiction to pass upon the
issue of dual allegiance?
We shall discuss these issues jointly.
Petitioner contends that Rep. Act No. 9225 cheapens Philippine citizenship. He
avers that Sections 2 and 3 of Rep. Act No. 9225, together, allow dual allegiance
and not dual citizenship. Petitioner maintains that Section 2 allows all Filipinos,

either natural-born or naturalized, who become foreign citizens, to retain their

Philippine citizenship without losing their foreign citizenship. Section 3 permits dual
allegiance because said law allows natural-born citizens of the Philippines to regain
their Philippine citizenship by simply taking an oath of allegiance without forfeiting
their foreign allegiance.[2] The Constitution, however, is categorical that dual
allegiance is inimical to the national interest.
The Office of the Solicitor General (OSG) claims that Section 2 merely
declares as a state policy that Philippine citizens who become citizens of another
country shall be deemed not to have lost their Philippine citizenship. The OSG
further claims that the oath in Section 3 does not allow dual allegiance since the
oath taken by the former Filipino citizen is an effective renunciation and repudiation
of his foreign citizenship. The fact that the applicant taking the oath recognizes and
accepts the supreme authority of the Philippines is an unmistakable and categorical
affirmation of his undivided loyalty to the Republic.[3]
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:
xxxx
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
citizenship by 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 countrys concern, when dual
allegiance is involved.
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.

xxxx
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.
xxxx
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 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 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.[4] ( mphasis
supplied.)
From the above excerpts of the legislative record, it is clear that the intent of the
legislature in drafting Rep. Act No. 9225 is to do away with the provision in
Commonwealth Act No. 63[5] which takes away Philippine citizenship from naturalborn Filipinos who become naturalized citizens of other countries. What Rep. Act No.
9225 does is allow dual citizenship to natural-born Filipino citizens who have lost
Philippine citizenship by reason of their naturalization as citizens of a foreign
country. On its face, it does not recognize dual allegiance. By swearing to the
supreme authority of the Republic, the person implicitly renounces his foreign
citizenship. Plainly, from Section 3, Rep. Act No. 9225 stayed clear out of the
problem of dual allegiance and shifted the burden of confronting the issue of
whether or not there is dual allegiance to the concerned foreign country. What
happens to the other citizenship was not made a concern of Rep. Act No. 9225.
Petitioner likewise advances the proposition that although Congress has not yet
passed any law on the matter of dual allegiance, such absence of a law should not
be justification why this Court could not rule on the issue. He further contends that
while it is true that there is no enabling law yet on dual allegiance, the Supreme

Court, through Mercado v. Manzano,[6] already had drawn up the guidelines on how
to distinguish dual allegiance from dual citizenship.[7]
For its part, the OSG counters that pursuant to Section 5, Article IV of the
1987 Constitution, dual allegiance shall be dealt with by law. Thus, until a law on
dual allegiance is enacted by Congress, the Supreme Court is without any
jurisdiction to entertain issues regarding dual allegiance.[8]
To begin with, Section 5, Article IV of the Constitution is a declaration of a policy and
it is not a self-executing provision. The legislature still has to enact the law on dual
allegiance. In Sections 2 and 3 of Rep. Act No. 9225, the framers were not
concerned with dual citizenship per se, but with the status of naturalized citizens
who maintain their allegiance to their countries of origin even after their
naturalization.[9] Congress was given a mandate to draft a law that would set
specific parameters of what really constitutes dual allegiance.[10] Until this is done,
it would be premature for the judicial department, including this Court, to rule on
issues pertaining to dual allegiance.
Neither can we subscribe to the proposition of petitioner that a law is not needed
since the case of Mercado had already set the guidelines for determining dual
allegiance. Petitioner misreads Mercado. That case did not set the parameters of
what constitutes dual allegiance but merely made a distinction between dual
allegiance and dual citizenship.
Moreover, in Estrada v. Sandiganbayan,[11] we said that the courts must assume
that the legislature is ever conscious of the borders and edges of its plenary powers,
and passed laws with full knowledge of the facts and for the purpose of promoting
what is right and advancing the welfare of the majority.
Hence, in determining
whether the acts of the legislature are in tune with the fundamental law, we must
proceed with judicial restraint and act with caution and forbearance.[12] The
doctrine of separation of powers demands no less. We cannot arrogate the duty of
setting the parameters of what constitutes dual allegiance when the Constitution
itself has clearly delegated the duty of determining what acts constitute dual
allegiance for study and legislation by Congress.
WHEREFORE, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.
LEONARDO A. QUISUMBING
Associate Justice

RA 7941 Partylist Act

AN ACT PROVIDING FOR THE ELECTION OF PARTY-LIST REPRESENTATIVES THROUGH
THE PARTY-LIST SYSTEM, AND APPROPRIATING FUNDS THEREFOR
Section 1. Title. This Act shall be known as the "Party-List System Act."

Section 2. Declaration of part y. The State shall promote proportional representation

in the election of representatives to the House of Representatives through a partylist system of registered national, regional and sectoral parties or organizations or
coalitions thereof, which will enable Filipino citizens belonging to marginalized and
under-represented sectors, organizations and parties, and who lack well-defined
political constituencies but who could contribute to the formulation and enactment
of appropriate legislation that will benefit the nation as a whole, to become
members of the House of Representatives. Towards this end, the State shall develop
and guarantee a full, free and open party system in order to attain the broadcast
possible representation of party, sectoral or group interests in the House of
Representatives by enhancing their chances to compete for and win seats in the
legislature, and shall provide the simplest scheme possible.
Section 3. Definition of Terms. (a) The party-list system is a mechanism of
proportional representation in the election of representatives to the House of
Representatives from national, regional and sectoral parties or organizations or
coalitions thereof registered with the Commission on Elections (COMELEC).
Component parties or organizations of a coalition may participate independently
provided the coalition of which they form part does not participate in the party-list
system.
(b) A party means either a political party or a sectoral party or a coalition of parties.
(c) A political party refers to an organized group of citizens advocating an ideology
or platform, principles and policies for the general conduct of government and
which, as the most immediate means of securing their adoption, regularly
nominates and supports certain of its leaders and members as candidates for public
office.
It is a national party when its constituency is spread over the geographical territory
of at least a majority of the regions. It is a regional party when its constituency is
spread over the geographical territory of at least a majority of the cities and
provinces comprising the region.
(d) A sectoral party refers to an organized group of citizens belonging to any of the
sectors enumerated in Section 5 hereof whose principal advocacy pertains to the
special interest and concerns of their sector,
(e) A sectoral organization refers to a group of citizens or a coalition of groups of
citizens who share similar physical attributes or characteristics, employment,
interests or concerns.
(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral
parties or organizations for political and/or election purposes.
Section 4. Manifestation to Participate in the Party-List System. Any party,
organization, or coalition already registered with the Commission need not register
anew. However, such party, organization, or coalition shall file with the Commission,

not later than ninety (90) days before the election, a manifestation of its desire to
participate in the party-list system.
Section 5. Registration. Any organized group of persons may register as a party,
organization or coalition for purposes of the party-list system by filing with the
COMELEC not later than ninety (90) days before the election a petition verified by
its president or secretary stating its desire to participate in the party-list system as
a national, regional or sectoral party or organization or a coalition of such parties or
organizations, attaching thereto its constitution, by-laws, platform or program of
government, list of officers, coalition agreement and other relevant information as
the COMELEC may require: Provided, That the sectors shall include labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped,
women, youth, veterans, overseas workers, and professionals.
The COMELEC shall publish the petition in at least two (2) national newspapers of
general circulation.
The COMELEC shall, after due notice and hearing, resolve the petition within fifteen
(15) days from the date it was submitted for decision but in no case not later than
sixty (60) days before election.
Section 6. Refusal and/or Cancellation of Registration. The COMELEC may, motu
propio or upon verified complaint of any interested party, refuse or cancel, after due
notice and hearing, the registration of any national, regional or sectoral party,
organization or coalition on any of the following grounds:
(1) It is a religious sect or denomination, organization or association, organized for
religious purposes;
(2) It advocates violence or unlawful means to seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign government, foreign political party,
foundation, organization, whether directly or through any of its officers or members
or indirectly through third parties for partisan election purposes;
(5) It violates or fails to comply with laws, rules or regulations relating to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding elections or fails to obtain at
least two per centum (2%) of the votes cast under the party-list system in the two
(2) preceding elections for the constituency in which it has registered.
Section 7. Certified List of Registered Parties. The COMELEC shall, not later than
sixty (60) days before election, prepare a certified list of national, regional, or
sectoral parties, organizations or coalitions which have applied or who have

manifested their desire to participate under the party-list system and distribute
copies thereof to all precincts for posting in the polling places on election day. The
names of the part y-list nominees shall not be shown on the certified list.
Section 8. Nomination of Party-List Representatives. Each registered party,
organization or coalition shall submit to the COMELEC not later than forty-five (45)
days before the election a list of names, not less than five (5), from which party-list
representatives shall be chosen in case it obtains the required number of votes.
A person may be nominated in one (1) list only. Only persons who have given their
consent in writing may be named in the list. The list shall not include any candidate
for any elective office or a person who has lost his bid for an elective office in the
immediately preceding election. No change of names or alteration of the order of
nominees shall be allowed after the same shall have been submitted to the
COMELEC except in cases where the nominee dies, or withdraws in writing his
nomination, becomes incapacitated in which case the name of the substitute
nominee shall be placed last in the list. Incumbent sectoral representatives in the
House of Representatives who are nominated in the party-list system shall not be
considered resigned.
Section 9. Qualifications of Party-List Nominees. No person shall be nominated as
party-list representative unless he is a natural-born citizen of the Philippines, a
registered voter, a resident of the Philippines for a period of not less than one
(1)year immediately preceding the day of the election, able to read and write, a
bona fide member of the party or organization which he seeks to represent for at
least ninety (90) days preceding the day of the election, and is at least twenty-five
(25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five (25) but
not more than thirty (30) years of age on the day of the election. Any youth sectoral
representative who attains the age of thirty (30) during his term shall be allowed to
continue in office until the expiration of his term.
Section 10. Manner of Voting. Every voter shall be entitled to two (2) votes: the first
is a vote for candidate for member of the House of Representatives in his legislative
district, and the second, a vote for the party, organizations, or coalition he wants
represented in the house of Representatives: Provided, That a vote cast for a party,
sectoral organization, or coalition not entitled to be voted for shall not be counted:
Provided, finally, That the first election under the party-list system shall be held in
May 1998.
The COMELEC shall undertake the necessary information campaign for purposes of
educating the electorate on the matter of the party-list system.
Section 11. Number of Party-List Representatives. The party-list representatives
shall constitute twenty per centum (20%) of the total number of the members of the
House of Representatives including those under the party-list.
For purposes of the May 1998 elections, the first five (5) major political parties on
the basis of party representation in the House of Representatives at the start of the

Tenth Congress of the Philippines shall not be entitled to participate in the party-list
system.
In determining the allocation of seats for the second vote, the following procedure
shall be observed:
(a) The parties, organizations, and coalitions shall be ranked from the highest to the
lowest based on the number of votes they garnered during the elections.
(b) The parties, organizations, and coalitions receiving at least two percent (2%) of
the total votes cast for the party-list system shall be entitled to one seat each:
Provided, That those garnering more than two percent (2%) of the votes shall be
entitled to additional seats in proportion to their total number of votes : Provided,
finally, That each party, organization, or coalition shall be entitled to not more than
three (3) seats.
Section 12. Procedure in Allocating Seats for Party-List Representatives. The
COMELEC shall tally all the votes for the parties, organizations, or coalitions on a
nationwide basis, rank them according to the number of votes received and allocate
party-list representatives proportionately according to the percentage of votes
obtained by each party, organization, or coalition as against the total nationwide
votes cast for the party-list system.
Section 13. How Party-List Representatives are Chosen. Party-list representatives
shall be proclaimed by the COMELEC based on the list of names submitted by the
respective parties, organizations, or coalitions to the COMELEC according to their
ranking in said list.
Section 14. Term of Office. Party-list representatives shall be elected for a term of
three (3) years which shall begin, unless otherwise provided by law, at noon on the
thirtieth day of June next following their election. No party-list representatives shall
serve for more than three (3) consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an interruption in the continuity his
service for the full term for which he was elected.
Section 15. Change of Affiliation; Effect. Any elected party-list representative who
changes his political party or sectoral affiliation during his term of office shall forfeit
his seat: Provided, That if he changes his political party or sectoral affiliation within
six (6) months before an election, he shall not be eligible for nomination as party-list
representative under his new party or organization.
Section 16. Vacancy. In case of vacancy in the seats reserved for party-list
representatives, the vacancy shall be automatically filled by the next representative
from the list of nominees in the order submitted to the COMELEC by the same party,
organization, or coalition, who shall serve for the unexpired term. If the list is
exhausted, the party, organization coalition concerned shall submit additional
nominees.

Section 17. Rights of Party-List Representatives. Party-List Representatives shall be

entitled to the same salaries and emoluments as regular members of the House of
Representatives.
Section 18. Rules and Regulations. The COMELEC shall promulgate the necessary
rules and regulations as may be necessary to carry out the purposes of this Act.
Section 19. Appropriations. The amount necessary for the implementation of this
Act shall be provided in the regular appropriations for the Commission on Elections
starting fiscal year 1996 under the General Appropriations Act.
Starting 1995, the COMELEC is hereby authorized to utilize savings and other
available funds for purposes of its information campaign on the party-list system.
Section 20. Separability Clause. If any part of this Act is held invalid or
unconstitutional, the other parts or provisions thereof shall remain valid and
effective.
Section 21. Repealing Clause. All laws, decrees, executive orders, rules and
regulations, or parts thereof, inconsistent with the provisions of this Act are hereby
repealed.
Section 22. Effectivity. This Act shall take effect fifteen (15) days after its publication
in a newspaper of general circulation.
Approved, March 3, 1995.
Atienza v. Comelec
EN BANC
JOSE L. ATIENZA, JR., MATIAS
V. DEFENSOR, JR., RODOLFO G.
VALENCIA, DANILO E. SUAREZ,
SOLOMON R. CHUNGALAO,
SALVACION ZALDIVAR-PEREZ,
HARLIN CAST-ABAYON, MELVIN G.
MACUSI and ELEAZAR P. QUINTO,
Petitioners,
Present:

G.R. No. 188920

Puno, C.J.,
Carpio,
Corona,
Carpio Morales,
Velasco, Jr.,
Nachura,
- versus Brion,

Leonardo-De Castro,

Peralta,
Bersamin,
Del Castillo,
Abad,
Villarama, Jr.,
Perez, and
Mendoza, JJ.
COMMISSION ON ELECTIONS,
MANUEL A. ROXAS II,
FRANKLIN M. DRILON and
Promulgated:
J.R. NEREUS O. ACOSTA,
Respondents.
February 16, 2010
x ---------------------------------------------------------------------------------------- x
DECISION
ABAD, J.:
This petition is an offshoot of two earlier cases already resolved by the Court
involving a leadership dispute within a political party. In this case, the petitioners
question their expulsion from that party and assail the validity of the election of new
party leaders conducted by the respondents.
Statement of the Facts and the Case
For a better understanding of the controversy, a brief recall of the preceding
events is in order.
On July 5, 2005 respondent Franklin M. Drilon (Drilon), as erstwhile president of the
Liberal Party (LP), announced his partys withdrawal of support for the
administration of President Gloria Macapagal-Arroyo. But petitioner Jose L. Atienza,
Jr. (Atienza), LP Chairman, and a number of party members denounced Drilons
move, claiming that he made the announcement without consulting his party.
On March 2, 2006 petitioner Atienza hosted a party conference to supposedly
discuss local autonomy and party matters but, when convened, the assembly
proceeded to declare all positions in the LPs ruling body vacant and elected new
officers, with Atienza as LP president. Respondent Drilon immediately filed a
petition[1] with the Commission on Elections (COMELEC) to nullify the elections. He
claimed that it was illegal considering that the partys electing bodies, the National
Executive Council (NECO) and the National Political Council (NAPOLCO), were not
properly convened. Drilon also claimed that under the amended LP Constitution,[2]
party officers were elected to a fixed three-year term that was yet to end on
November 30, 2007.
On the other hand, petitioner Atienza claimed that the majority of the LPs
NECO and NAPOLCO attended the March 2, 2006 assembly. The election of new
officers on that occasion could be likened to people power, wherein the LP
majority removed respondent Drilon as president by direct action. Atienza also said

that the amendments[3] to the original LP Constitution, or the Salonga Constitution,

giving LP officers a fixed three-year term, had not been properly ratified.
Consequently, the term of Drilon and the other officers already ended on July 24,
2006.
On October 13, 2006, the COMELEC issued a resolution,[4] partially granting
respondent Drilons petition. It annulled the March 2, 2006 elections and ordered
the holding of a new election under COMELEC supervision. It held that the election
of petitioner Atienza and the others with him was invalid since the electing
assembly did not convene in accordance with the Salonga Constitution. But, since
the amendments to the Salonga Constitution had not been properly ratified, Drilons
term may be deemed to have ended. Thus, he held the position of LP president in a
holdover capacity until new officers were elected.
Both sides of the dispute came to this Court to challenge the COMELEC
rulings.
On April 17, 2007 a divided Court issued a resolution,[5] granting
respondent Drilons petition and denying that of petitioner Atienza. The Court held,
through the majority, that the COMELEC had jurisdiction over the intra-party
leadership dispute; that the Salonga Constitution had been validly amended; and
that, as a consequence, respondent Drilons term as LP president was to end only
on November 30, 2007.
Subsequently, the LP held a NECO meeting to elect new party leaders before
respondent Drilons term expired. Fifty-nine NECO members out of the 87 who were
supposedly qualified to vote attended. Before the election, however, several
persons associated with petitioner Atienza sought to clarify their membership status
and raised issues regarding the composition of the NECO. Eventually, that meeting
installed respondent Manuel A. Roxas II (Roxas) as the new LP president.
On January 11, 2008 petitioners Atienza, Matias V. Defensor, Jr., Rodolfo G.
Valencia, Danilo E. Suarez, Solomon R. Chungalao, Salvacion Zaldivar-Perez, Harlin
Cast-Abayon, Melvin G. Macusi, and Eleazar P. Quinto, filed a petition for mandatory
and prohibitory injunction[6] before the COMELEC against respondents Roxas, Drilon
and J.R. Nereus O. Acosta, the party secretary general. Atienza, et al. sought to
enjoin Roxas from assuming the presidency of the LP, claiming that the NECO
assembly which elected him was invalidly convened. They questioned the existence
of a quorum and claimed that the NECO composition ought to have been based on a
list appearing in the partys 60th Anniversary Souvenir Program. Both Atienza and
Drilon adopted that list as common exhibit in the earlier cases and it showed that
the NECO had 103 members.
Petitioners Atienza, et al. also complained that Atienza, the incumbent party
chairman, was not invited to the NECO meeting and that some members, like
petitioner Defensor, were given the status of guests during the meeting.
Atienzas allies allegedly raised these issues but respondent Drilon arbitrarily
thumbed them down and railroaded the proceedings. He suspended the meeting
and moved it to another room, where Roxas was elected without notice to Atienzas
allies.

On the other hand, respondents Roxas, et al. claimed that Roxas election as
LP president faithfully complied with the provisions of the amended LP Constitution.
The partys 60th Anniversary Souvenir Program could not be used for determining
the NECO members because supervening events changed the bodys number and
composition. Some NECO members had died, voluntarily resigned, or had gone on
leave after accepting positions in the government. Others had lost their re-election
bid or did not run in the May 2007 elections, making them ineligible to serve as
NECO members. LP members who got elected to public office also became part of
the NECO. Certain persons of national stature also became NECO members upon
respondent Drilons nomination, a privilege granted the LP president under the
amended LP Constitution. In other words, the NECO membership was not fixed or
static; it changed due to supervening circumstances.
Respondents Roxas, et al. also claimed that the party deemed petitioners
Atienza, Zaldivar-Perez, and Cast-Abayon resigned for holding the illegal election of
LP officers on March 2, 2006. This was pursuant to a March 14, 2006 NAPOLCO
resolution that NECO subsequently ratified. Meanwhile, certain NECO members, like
petitioners Defensor, Valencia, and Suarez, forfeited their party membership when
they ran under other political parties during the May 2007 elections. They were
dropped from the roster of LP members.
On June 18, 2009 the COMELEC issued the assailed resolution denying
petitioners Atienza, et al.s petition.
It noted that the May 2007 elections
necessarily changed the composition of the NECO since the amended LP
Constitution explicitly made incumbent senators, members of the House of
Representatives, governors and mayors members of that body. That some lost or
won these positions in the May 2007 elections affected the NECO membership.
Petitioners failed to prove that the NECO which elected Roxas as LP president was
not properly convened.
As for the validity of petitioners Atienza, et al.s expulsion as LP members, the
COMELEC observed that this was a membership issue that related to disciplinary
action within the political party. The COMELEC treated it as an internal party matter
that was beyond its jurisdiction to resolve.
Without filing a motion for reconsideration of the COMELEC resolution,
petitioners Atienza, et al. filed this petition for certiorari under Rule 65.
The Issues Presented
Respondents Roxas, et al. raise the following threshold issues:
1.
Whether or not the LP, which was not impleaded in the case, is an
indispensable party; and
2.
Whether or not petitioners Atienza, et al., as ousted LP members, have the
requisite legal standing to question Roxas election.
Petitioners Atienza, et al., on the other hand, raise the following issues:

3.
Whether or not the COMELEC gravely abused its discretion when it upheld the
NECO membership that elected respondent Roxas as LP president;
4.
Whether or not the COMELEC gravely abused its discretion when it resolved
the issue concerning the validity of the NECO meeting without first resolving the
issue concerning the expulsion of Atienza, et al. from the party; and
5.
Whether or not respondents Roxas, et al. violated petitioners Atienza, et al.s
constitutional right to due process by the latters expulsion from the party.
The Courts Ruling
One. Respondents Roxas, et al. assert that the Court should dismiss the petition for
failure of petitioners Atienza, et al. to implead the LP as an indispensable party.
Roxas, et al. point out that, since the petition seeks the issuance of a writ of
mandatory injunction against the NECO, the controversy could not be adjudicated
with finality without making the LP a party to the case.[7]
But petitioners Atienza, et al.s causes of action in this case consist in
respondents Roxas, et al.s disenfranchisement of Atienza, et al. from the election of
party leaders and in the illegal election of Roxas as party president. Atienza, et al.
were supposedly excluded from the elections by a series of despotic acts of
Roxas, et al., who controlled the proceedings. Among these acts are Atienza, et al.s
expulsion from the party, their exclusion from the NECO, and respondent Drilons
railroading of election proceedings. Atienza, et al. attributed all these illegal and
prejudicial acts to Roxas, et al.
Since no wrong had been imputed to the LP nor had some affirmative relief been
sought from it, the LP is not an indispensable party. Petitioners Atienza, et al.s
prayer for the undoing of respondents Roxas, et al.s acts and the reconvening of
the NECO are directed against Roxas, et al.
Two. Respondents Roxas, et al. also claim that petitioners Atienza, et al. have no
legal standing to question the election of Roxas as LP president because they are no
longer LP members, having been validly expelled from the party or having joined
other political parties.[8] As non-members, they have no stake in the outcome of
the action.
But, as the Court held in David v. Macapagal-Arroyo,[9] legal standing in suits is
governed by the real parties-in-interest rule under Section 2, Rule 3 of the Rules of
Court. This states that every action must be prosecuted or defended in the name
of the real party-in-interest. And real party-in-interest is one who stands to be
benefited or injured by the judgment in the suit or the party entitled to the avails of
the suit. In other words, the plaintiffs standing is based on his own right to the
relief sought. In raising petitioners Atienza, et al.s lack of standing as a threshold
issue, respondents Roxas, et al. would have the Court hypothetically assume the
truth of the allegations in the petition.

Here, it is precisely petitioners Atienza, et al.s allegations that respondents Roxas,

et al. deprived them of their rights as LP members by summarily excluding them
from the LP roster and not allowing them to take part in the election of its officers
and that not all who sat in the NECO were in the correct list of NECO members. If
Atienza, et al.s allegations were correct, they would have been irregularly expelled
from the party and the election of officers, void. Further, they would be entitled to
recognition as members of good standing and to the holding of a new election of
officers using the correct list of NECO members. To this extent, therefore, Atienza,
et al. who want to take part in another election would stand to be benefited or
prejudiced by the Courts decision in this case. Consequently, they have legal
standing to pursue this petition.
Three. In assailing respondent Roxas election as LP president, petitioners Atienza,
et al. claim that the NECO members allowed to take part in that election should
have been limited to those in the list of NECO members appearing in the partys
60th Anniversary Souvenir Program. Atienza, et al. allege that respondent Drilon, as
holdover LP president, adopted that list in the earlier cases before the COMELEC
and it should thus bind respondents Roxas, et al. The Courts decision in the earlier
cases, said Atienza, et al., anointed that list for the next party election. Thus,
Roxas, et al. in effect defied the Courts ruling when they removed Atienza as party
chairman and changed the NECOs composition.[10]
But the list of NECO members appearing in the partys 60th Anniversary Souvenir
Program was drawn before the May 2007 elections. After the 2007 elections,
changes in the NECO membership had to be redrawn to comply with what the
amended LP Constitution required.
Respondent Drilon adopted the souvenir
program as common exhibit in the earlier cases only to prove that the NECO, which
supposedly elected Atienza as new LP president on March 2, 2006, had been
improperly convened. It cannot be regarded as an immutable list, given the nature
and character of the NECO membership.
Nothing in the Courts resolution in the earlier cases implies that the NECO
membership should be pegged to the partys 60th Anniversary Souvenir Program.
There would have been no basis for such a position. The amended LP Constitution
did not intend the NECO membership to be permanent. Its Section 27[11] provides
that the NECO shall include all incumbent senators, members of the House of
Representatives, governors, and mayors who were LP members in good standing for
at least six months. It follows from this that with the national and local elections
taking place in May 2007, the number and composition of the NECO would have to
yield to changes brought about by the elections.
Former NECO members who lost the offices that entitled them to membership had
to be dropped. Newly elected ones who gained the privilege because of their offices
had to come in. Furthermore, former NECO members who passed away, resigned
from the party, or went on leave could not be expected to remain part of the NECO
that convened and held elections on November 26, 2007. In addition, Section 27 of
the amended LP Constitution expressly authorized the party president to nominate
persons of national stature to the NECO. Thus, petitioners Atienza, et al. cannot
validly object to the admission of 12 NECO members nominated by respondent
Drilon when he was LP president. Even if this move could be regarded as

respondents Roxas, et al.s way of ensuring their election as party officers, there
was certainly nothing irregular about the act under the amended LP Constitution.
The NECO was validly convened in accordance with the amended LP
Constitution. Respondents Roxas, et al. explained in details how they arrived at the
NECO composition for the purpose of electing the party leaders.[12]
The
explanation is logical and consistent with party rules. Consequently, the COMELEC
did not gravely abuse its discretion when it upheld the composition of the NECO that
elected Roxas as LP president.
Petitioner Atienza claims that the Courts resolution in the earlier cases recognized
his right as party chairman with a term, like respondent Drilon, that would last up to
November 30, 2007 and that, therefore, his ouster from that position violated the
Courts resolution. But the Courts resolution in the earlier cases did not preclude
the party from disciplining Atienza under Sections 29[13] and 46[14] of the
amended LP Constitution. The party could very well remove him or any officer for
cause as it saw fit.
Four. Petitioners Atienza, et al. lament that the COMELEC selectively exercised its
jurisdiction when it ruled on the composition of the NECO but refused to delve into
the legality of their expulsion from the party. The two issues, they said, weigh
heavily on the leadership controversy involved in the case. The previous rulings of
the Court, they claim, categorically upheld the jurisdiction of the COMELEC over
intra-party leadership disputes.[15]
But, as respondents Roxas, et al. point out, the key issue in this case is not
the validity of the expulsion of petitioners Atienza, et al. from the party, but the
legitimacy of the NECO assembly that elected respondent Roxas as LP president.
Given the COMELECs finding as upheld by this Court that the membership of the
NECO in question complied with the LP Constitution, the resolution of the issue of
whether or not the party validly expelled petitioners cannot affect the election of
officers that the NECO held.
While petitioners Atienza, et al. claim that the majority of LP members belong
to their faction, they did not specify who these members were and how their
numbers could possibly affect the composition of the NECO and the outcome of its
election of party leaders. Atienza, et al. has not bothered to assail the individual
qualifications of the NECO members who voted for Roxas. Nor did Atienza, et al.
present proof that the NECO had no quorum when it then assembled. In other
words, the claims of Atienza, et al. were totally unsupported by evidence.
Consequently, petitioners Atienza, et al. cannot claim that their expulsion from the
party impacts on the party leadership issue or on the election of respondent Roxas
as president so that it was indispensable for the COMELEC to adjudicate such claim.
Under the circumstances, the validity or invalidity of Atienza, et al.s expulsion was
purely a membership issue that had to be settled within the party. It is an internal
party matter over which the COMELEC has no jurisdiction.
What is more, some of petitioner Atienzas allies raised objections before the
NECO assembly regarding the status of members from their faction. Still, the NECO

proceeded with the election, implying that its membership, whose composition has
been upheld, voted out those objections.
The COMELECs jurisdiction over intra-party disputes is limited. It does not
have blanket authority to resolve any and all controversies involving political
parties. Political parties are generally free to conduct their activities without
interference from the state. The COMELEC may intervene in disputes internal to a
party only when necessary to the discharge of its constitutional functions.
The COMELECs jurisdiction over intra-party leadership disputes has already
been settled by the Court. The Court ruled in Kalaw v. Commission on Elections[16]
that the COMELECs powers and functions under Section 2, Article IX-C of the
Constitution, include the ascertainment of the identity of the political party and its
legitimate officers responsible for its acts. The Court also declared in another
case[17] that the COMELECs power to register political parties necessarily involved
the determination of the persons who must act on its behalf. Thus, the COMELEC
may resolve an intra-party leadership dispute, in a proper case brought before it, as
an incident of its power to register political parties.
The validity of respondent Roxas election as LP president is a leadership
issue that the COMELEC had to settle. Under the amended LP Constitution, the LP
president is the issuing authority for certificates of nomination of party candidates
for all national elective positions. It is also the LP president who can authorize other
LP officers to issue certificates of nomination for candidates to local elective posts.
[18] In simple terms, it is the LP president who certifies the official standard bearer
of the party.
The law also grants a registered political party certain rights and privileges
that will redound to the benefit of its official candidates. It imposes, too, legal
obligations upon registered political parties that have to be carried out through their
leaders. The resolution of the leadership issue is thus particularly significant in
ensuring the peaceful and orderly conduct of the elections.[19]
Five. Petitioners Atienza, et al. argue that their expulsion from the party is not a
simple issue of party membership or discipline; it involves a violation of their
constitutionally-protected right to due process of law. They claim that the NAPOLCO
and the NECO should have first summoned them to a hearing before summarily
expelling them from the party. According to Atienza, et al., proceedings on party
discipline are the equivalent of administrative proceedings[20] and are, therefore,
covered by the due process requirements laid down in Ang Tibay v. Court of
Industrial Relations.[21]
But the requirements of administrative due process do not apply to the internal
affairs of political parties. The due process standards set in Ang Tibay cover only
administrative bodies created by the state and through which certain governmental
acts or functions are performed. An administrative agency or instrumentality
contemplates an authority to which the state delegates governmental power for
the performance of a state function.[22] The constitutional limitations that
generally apply to the exercise of the states powers thus, apply too, to
administrative bodies.

The constitutional limitations on the exercise of the states powers are found in
Article III of the Constitution or the Bill of Rights. The Bill of Rights, which
guarantees against the taking of life, property, or liberty without due process under
Section 1 is generally a limitation on the states powers in relation to the rights of its
citizens. The right to due process is meant to protect ordinary citizens against
arbitrary government action, but not from acts committed by private individuals or
entities. In the latter case, the specific statutes that provide reliefs from such
private acts apply.
The right to due process guards against unwarranted
encroachment by the state into the fundamental rights of its citizens and cannot be
invoked in private controversies involving private parties.[23]
Although political parties play an important role in our democratic set-up as an
intermediary between the state and its citizens, it is still a private organization, not
a state instrument. The discipline of members by a political party does not involve
the right to life, liberty or property within the meaning of the due process clause. An
individual has no vested right, as against the state, to be accepted or to prevent his
removal by a political party. The only rights, if any, that party members may have,
in relation to other party members, correspond to those that may have been freely
agreed upon among themselves through their charter, which is a contract among
the party members. Members whose rights under their charter may have been
violated have recourse to courts of law for the enforcement of those rights, but not
as a due process issue against the government or any of its agencies.
But even when recourse to courts of law may be made, courts will ordinarily
not interfere in membership and disciplinary matters within a political party. A
political party is free to conduct its internal affairs, pursuant to its constitutionallyprotected right to free association. In Sinaca v. Mula,[24] the Court said that judicial
restraint in internal party matters serves the public interest by allowing the political
processes to operate without undue interference. It is also consistent with the state
policy of allowing a free and open party system to evolve, according to the free
choice of the people.[25]
To conclude, the COMELEC did not gravely abuse its discretion when it upheld
Roxas election as LP president but refused to rule on the validity of Atienza, et al.s
expulsion from the party. While the question of party leadership has implications on
the COMELECs performance of its functions under Section 2, Article IX-C of the
Constitution, the same cannot be said of the issue pertaining to Atienza, et al.s
expulsion from the LP. Such expulsion is for the moment an issue of party
membership and discipline, in which the COMELEC cannot intervene, given the
limited scope of its power over political parties.
WHEREFORE, the Court DISMISSES the petition and UPHOLDS the Resolution of the
Commission on Elections dated June 18, 2009 in COMELEC Case SPP 08-001.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice

BANAT v. Comelec
EN BANC
BARANGAY ASSOCIATION FOR
NATIONAL ADVANCEMENT
AND TRANSPARENCY (BANAT),
Petitioner,

G.R. No. 179271

- versus COMMISSION ON ELECTIONS

(sitting as the National Board of
Canvassers),
Respondent.
ARTS BUSINESS AND SCIENCE
PROFESSIONALS,
Intervenor.
AANGAT TAYO,
Intervenor.
COALITION OF ASSOCIATIONS
OF SENIOR CITIZENS IN THE
PHILIPPINES, INC. (SENIOR
CITIZENS),
Intervenor.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - x
BAYAN MUNA, ADVOCACY FOR
TEACHER EMPOWERMENT
THROUGH ACTION, COOPERATION
AND HARMONY TOWARDS
EDUCATIONAL REFORMS, INC.,
and ABONO,
Petitioners,

- versus -

G.R. No. 179295

Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,

BRION,
PERALTA, and
BERSAMIN, JJ.
COMMISSION ON ELECTIONS,
Respondent.

Promulgated:
_______________________

x---------------------------------------------------x
DECISION
CARPIO, J.:
The Case
Petitioner in G.R. No. 179271 Barangay Association for National
Advancement and Transparency (BANAT) in a petition for certiorari and
mandamus,[1] assails the Resolution[2] promulgated on 3 August 2007 by the
Commission on Elections (COMELEC) in NBC No. 07-041 (PL). The COMELECs
resolution in NBC No. 07-041 (PL) approved the recommendation of Atty. Alioden D.
Dalaig, Head of the National Board of Canvassers (NBC) Legal Group, to deny the
petition of BANAT for being moot. BANAT filed before the COMELEC En Banc, acting
as NBC, a Petition to Proclaim the Full Number of Party-List Representatives
Provided by the Constitution.
The following are intervenors in G.R. No. 179271: Arts Business and Science
Professionals (ABS), Aangat Tayo (AT), and Coalition of Associations of Senior
Citizens in the Philippines, Inc. (Senior Citizens).
Petitioners in G.R. No. 179295 Bayan Muna, Abono, and Advocacy for
Teacher Empowerment Through Action, Cooperation and Harmony Towards
Educational Reforms (A Teacher) in a petition for certiorari with mandamus and
prohibition,[3] assails NBC Resolution No. 07-60[4] promulgated on 9 July 2007. NBC
No. 07-60 made a partial proclamation of parties, organizations and coalitions that
obtained at least two percent of the total votes cast under the Party-List
System. The COMELEC announced that, upon completion of the canvass of the
party-list results, it would determine the total number of seats of each winning
party, organization, or coalition in accordance with Veterans Federation Party v.
COMELEC[5] (Veterans).
Estrella DL Santos, in her capacity as President and First Nominee of the
Veterans Freedom Party, filed a motion to intervene in both G.R. Nos. 179271 and
179295.
The Facts

The 14 May 2007 elections included the elections for the party-list
representatives. The COMELEC counted 15,950,900 votes cast for 93 parties under
the Party-List System.[6]
On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of PartyList Representatives Provided by the Constitution, docketed as NBC No. 07-041 (PL)
before the NBC. BANAT filed its petition because [t]he Chairman and the
Members of the [COMELEC] have recently been quoted in the national papers that
the [COMELEC] is duty bound to and shall implement the Veterans ruling, that is,
would apply the Panganiban formula in allocating party-list seats. [7] There were no
intervenors in BANATs petition before the NBC. BANAT filed a memorandum on 19
July 2007.
On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC
Resolution No. 07-60. NBC Resolution No. 07-60 proclaimed thirteen (13) parties as
winners in the party-list elections, namely: Buhay Hayaan Yumabong (BUHAY),
Bayan Muna, Citizens Battle Against Corruption (CIBAC), Gabrielas Women Party
(Gabriela), Association of Philippine Electric Cooperatives (APEC), A Teacher,
Akbayan! Citizens Action Party (AKBAYAN), Alagad, Luzon Farmers Party (BUTIL),
Cooperative-Natco Network Party (COOP-NATCCO), Anak Pawis, Alliance of Rural
Concerns (ARC), and Abono. We quote NBC Resolution No. 07-60 in its entirety
below:
WHEREAS, the Commission on Elections sitting en banc as
National Board of Canvassers, thru its Sub-Committee for Party-List, as
of 03 July 2007, had officially canvassed, in open and public
proceedings, a total of fifteen million two hundred eighty three
thousand six hundred fifty-nine (15,283,659) votes under the
Party-List System of Representation, in connection with the National
and Local Elections conducted last 14 May 2007;
WHEREAS, the study conducted by the Legal and Tabulation
Groups of the National Board of Canvassers reveals that the
projected/maximum total party-list votes cannot go any higher
than sixteen million seven hundred twenty three thousand one
hundred twenty-one (16,723,121) votes given the following
statistical data:
Projected/Maximum
Elections
i. Total
party-list
canvassed/tabulated

Party-List

votes

Votes

for

May

already 15,283,659

ii.
Total
party-list
votes
remaining
uncanvassed/
untabulated
(i.e.
canvass 1,337,032
deferred)
iii. Maximum party-list votes (based on 100%
outcome) from areas not yet submitted for
canvass (Bogo, Cebu; Bais City; Pantar, Lanao
del Norte; and Pagalungan, Maguindanao)
102,430

2007

Maximum Total Party-List Votes

16,723,121

WHEREAS, Section 11 of Republic Act No. 7941 (Party-List

System Act) provides in part:
The parties, organizations, and coalitions receiving
at least two percent (2%) of the total votes cast for the
party-list system shall be entitled to one seat each:
provided, that those garnering more than two percent (2%)
of the votes shall be entitled to additional seats in
proportion to their total number of votes: provided, finally,
that each party, organization, or coalition shall be entitled
to not more than three (3) seats.
WHEREAS, for the 2007 Elections, based on the above
projected total of party-list votes, the presumptive two percent (2%)
threshold can be pegged at three hundred thirty four thousand
four hundred sixty-two (334,462) votes;
WHEREAS, the Supreme Court, in Citizens Battle Against
Corruption (CIBAC) versus COMELEC, reiterated its ruling in Veterans
Federation Party versus COMELEC adopting a formula for the additional
seats of each party, organization or coalition receving more than the
required two percent (2%) votes, stating that the same shall be
determined only after all party-list ballots have been completely
canvassed;
WHEREAS, the parties, organizations, and coalitions that have
thus far garnered at least three hundred thirty four thousand four
hundred sixty-two (334,462) votes are as follows:
RANK

PARTY/ORGANIZATION/
COALITION

BUHAY

VOTES
RECEIVED
1,163,
218

BAYAN MUNA

972,
730

CIBAC

760,
260

GABRIELA

610,
451

APEC

538,
971

A TEACHER

476,
036

AKBAYAN

470,
872

ALAGAD

423,
076

BUTIL

405,
052

10

COOP-NATCO

390,
029

11

BATAS

386,
361

12

ANAK PAWIS

376,
036

13

ARC

338,
194

14

ABONO

337,
046

WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng

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

Buhay Hayaan Yumabong

BUHAY

Bayan Muna

BAYAN MUNA

Citizens Battle Against Corruption

CIBAC

Gabriela Womens Party

GABRIELA

Association
of
Cooperatives

Advocacy for Teacher Empowerment A TEACHER

Through Action, Cooperation and

Philippine

Electric APEC

Harmony Towards Educational Reforms,

Inc.
7

Akbayan! Citizens Action Party

AKBAYAN

Alagad

ALAGAD

Luzon Farmers Party

BUTIL

10 Cooperative-Natco Network Party

COOP-NATCCO

11 Anak Pawis

ANAKPAWIS

12 Alliance of Rural Concerns

ARC

13 Abono

ABONO

This is without prejudice to the proclamation of other parties,

organizations, or coalitions which may later on be established to have
obtained at least two percent (2%) of the total actual votes cast under
the Party-List System.
The total number of seats of each winning party, organization
or coalition shall be determined pursuant to Veterans Federation Party
versus COMELEC formula upon completion of the canvass of the partylist results.
The proclamation of Bagong Alyansang Tagapagtaguyod ng
Adhikaing Sambayanan (BATAS) is hereby deferred until final resolution
of SPC No. 07-250, in order not to render the proceedings therein moot
and academic.
Finally, all proclamation of the nominees of concerned parties,
organizations and coalitions with pending disputes shall likewise be
held in abeyance until final resolution of their respective cases.
Let the Clerk of the Commission implement this Resolution,
furnishing a copy thereof to the Speaker of the House of
Representatives of the Philippines.
SO ORDERED.[8] (Emphasis in the original)
Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC,
promulgated NBC Resolution No. 07-72, which declared the additional seats
allocated to the appropriate parties. We quote from the COMELECs interpretation
of the Veteransformula as found in NBC Resolution No. 07-72:
WHEREAS, on July 9, 2007, the Commission on Elections
sitting en banc as the National Board of Canvassers proclaimed
thirteen (13) qualified parties, organization[s] and coalitions based on
the presumptive two percent (2%) threshold of 334,462 votes from the

projected maximum total number of party-list votes of 16,723,121, and

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

Projected total number of

votes

BUHAY

1,178,747

BAYAN MUNA

977,476

CIBAC

755,964

GABRIELA

621,718

APEC

622,489

A TEACHER

492,369

AKBAYAN

462,674

ALAGAD

423,190

BUTIL

409,298

10

COOP-NATCO

412,920

11

ANAKPAWIS

370,165

12

ARC

375,846

13

ABONO

340,151

WHEREAS, based on the above Report, Buhay Hayaan

Yumabong (Buhay) obtained the highest number of votes among the
thirteen (13) qualified parties, organizations and coalitions, making it
the first party in accordance with Veterans Federation Party versus
COMELEC, reiterated in Citizens Battle Against Corruption (CIBAC)
versus COMELEC;
WHEREAS, qualified parties, organizations and coalitions
participating under the party-list system of representation that have
obtained one guaranteed (1) seat may be entitled to an additional seat
or seats based on the formula prescribed by the Supreme Court
in Veterans;
WHEREAS, in determining the additional seats for the first
party, the correct formula as expressed in Veterans, is:

Number of votes of first party

---------------------

Proportion of votes of first

party relative to total votes

for
Total votes for party-list system

party-list system

wherein the proportion of votes received by the first party (without

rounding off) shall entitle it to additional seats:
Proportion of votes received
by the first party

Additional seats

Equal to or at least 6%

Two
(2)
seats

Equal to or greater than 4% but less One

than 6%
seat
Less than 4%

additional

(1)

additional

No additional seat

WHEREAS, applying the above formula, Buhay obtained the

following percentage:
1,178,747
-------= 0.07248 or 7.2%
16,261,369
which entitles it to two (2) additional seats.
WHEREAS, in determining the additional seats for the other
qualified parties, organizations and coalitions, the correct formula as
expressed inVeterans and reiterated in CIBAC is, as follows:
No. of votes of
concerned
party
additional
Additional seats for
to
a concerned party

------------------No. of votes of
first party

No.
x

of

seats allocated
first party

WHEREAS, applying the above formula, the results are as

follows:
Party List

Percentage

Additional Seat

BAYAN MUNA

1.65

CIBAC

1.28

GABRIELA

1.05

APEC

1.05

A TEACHER

0.83

AKBAYAN

0.78

ALAGAD

0.71

BUTIL

0.69

COOP-NATCO

0.69

ANAKPAWIS

0.62

ARC

0.63

ABONO

0.57

NOW THEREFORE, by virtue of the powers vested in it by the

Constitution, Omnibus Election Code, Executive Order No. 144,
Republic Act Nos. 6646, 7166, 7941 and other elections laws, the
Commission on Elections en banc sitting as the National Board of
Canvassers, hereby RESOLVED, as it hereby RESOLVES, to proclaim the
following parties, organizations or coalitions as entitled to additional
seats, to wit:

Party List

Additional Seats

BUHAY

BAYAN MUNA

CIBAC

GABRIELA

APEC

This is without prejudice to the proclamation of other parties,

organizations or coalitions which may later on be established to have
obtained at least two per cent (2%) of the total votes cast under the
party-list system to entitle them to one (1) guaranteed seat, or to the
appropriate percentage of votes to entitle them to one (1) additional
seat.
Finally, all proclamation of the nominees of concerned parties,
organizations and coalitions with pending disputes shall likewise be
held in abeyance until final resolution of their respective cases.
Let the National Board of Canvassers Secretariat implement
this Resolution, furnishing a copy hereof to the Speaker of the House of
Representatives of the Philippines.

SO ORDERED.[9]
Acting on BANATs petition, the NBC promulgated NBC Resolution No. 07-88
on 3 August 2007, which reads as follows:
This pertains to the Petition to Proclaim the Full Number of
Party-List Representatives Provided by the Constitution filed by the
Barangay Association for National Advancement and Transparency
(BANAT).
Acting on the foregoing Petition of the Barangay Association for
National Advancement and Transparency (BANAT) party-list, Atty.
Alioden D. Dalaig, Head, National Board of Canvassers Legal Group
submitted his comments/observations and recommendation thereon
[NBC 07-041 (PL)], which reads:
COMMENTS / OBSERVATIONS:
Petitioner Barangay Association for National Advancement
and Transparency (BANAT), in its Petition to Proclaim the
Full Number of Party-List Representatives Provided by the
Constitution prayed for the following reliefs, to wit:
1.
That the full number -- twenty percent (20%) -- of
Party-List representatives as mandated by Section 5,
Article VI of the Constitution shall be proclaimed.
2.
Paragraph (b), Section 11 of RA 7941 which
prescribes the 2% threshold votes, should be harmonized
with Section 5, Article VI of the Constitution and with
Section 12 of the same RA 7941 in that it should be
applicable only to the first party-list representative seats
to be allotted on the basis of their initial/first ranking.
3.
The 3-seat limit prescribed by RA 7941 shall be
applied; and
4.
Initially, all party-list groups shall be given the
number of seats corresponding to every 2% of the votes
they received and the additional seats shall be allocated
in accordance with Section 12 of RA 7941, that is, in
proportion to the percentage of votes obtained by each
party-list group in relation to the total nationwide votes
cast in the party-list election, after deducting the
corresponding votes of those which were allotted seats
under
the
2%
threshold
rule. In
fine,
the
formula/procedure prescribed in the ALLOCATION OF
PARTY-LIST SEATS, ANNEX A of COMELEC RESOLUTION

2847 dated 25 June 1996, shall be used for [the] purpose

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

[14]

Per the certification[15] by COMELEC, the following party-list organizations have

been proclaimed as of 19 May 2008:
Party-List

No. of Seat(s)

1.1

Buhay

1.2

Bayan Muna

1.3

CIBAC

1.4

Gabriela

1.5

APEC

1.6

A Teacher

1.7

Akbayan

1.8

Alagad

1.9

Butil

1.10

Coop-Natco [sic]

1.11

Anak Pawis

1.12

ARC

1.13

Abono

1.14

AGAP

1.15

AMIN

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan

(BATAS), against which an Urgent Petition for Cancellation/Removal of Registration
and Disqualification of Party-list Nominee (with Prayer for the Issuance of
Restraining Order) has been filed before the COMELEC, was deferred pending final
resolution of SPC
No. 07-250.
Issues
BANAT brought the following issues before this Court:
1.
Is
the
twenty
percent
allocation
for
party-list
representatives
provided in Section 5(2), Article VI of the
Constitution mandatory
or is it merely a ceiling?
2.
7941

Is the three-seat limit provided in Section 11(b) of RA

constitutional?

3.
the

Is the two percent threshold and qualifier votes prescribed by

same Section 11(b) of RA 7941 constitutional?

4.

How shall the party-list representatives be allocated? [16]

Bayan Muna, A Teacher, and Abono, on the other hand, raised the following
issues in their petition:
I.
Respondent Commission on Elections, acting as National Board
of Canvassers, committed grave abuse of discretion amounting
to
lack or excess of jurisdiction when it promulgated NBC
Resolution
No. 07-60 to implement the First-Party Rule in the
allocation of
seats to qualified party-list organizations as said rule:
A.
proportional
B.

Violates

1.

2.
of
and
Section
3.

C.
Philippine
case of

principle

of

Violates the provisions of RA 7941 particularly:

in
Party
representation

Party
RA

the
constitutional
representation.

The 2-4-6 Formula used by the First Party Rule

allocating
additional
seats
for
the
First
violates
the
principle
of
proportional
under RA 7941.
The use of
additional
another for
11(b)

two formulas in the allocation

seats, one for the First Party
the qualifying parties, violates
of RA 7941.

The proportional relationships under the First

Rule are different from those required under
7941;

Violates the Four Inviolable Parameters of the

party-list system as provided for under the same
Veterans Federation Party, et al. v. COMELEC.

II.
Presuming that the Commission on Elections did not commit
grave
abuse of discretion amounting to lack or excess of
jurisdiction when it implemented the First-Party Rule in the allocation
of seats
to qualified party-list organizations, the same being merely
in
consonance with the ruling in Veterans Federations Party, et
al. v.
COMELEC, the instant Petition is a justiciable case as the
issues involved herein are constitutional in nature, involving the
correct
interpretation and implementation of RA 7941, and are
of transcendental importance to our nation.[17]
Considering the allegations in the petitions and the comments of the parties
in these cases, we defined the following issues in our advisory for the oral
arguments set on 22 April 2008:
1.
in
a

Is the twenty percent allocation for party-list representatives

Section 5(2), Article VI of the Constitution mandatory or merely
ceiling?

2.
Is the
constitutional?

three-seat

limit

in

Section

11(b)

of

RA

7941

3.
RA

Is the two percent threshold prescribed in Section 11(b) of

7941 to qualify for one seat constitutional?

4.

How shall the party-list representative seats be allocated?

5.
Does the Constitution prohibit the major political parties
from
participating in the party-list elections? If not, can the
major political parties be barred from participating in the partylist
elections?[18]
The Ruling of the Court
The petitions have partial merit. We maintain that a Philippine-style party-list
election has at least four inviolable parameters as clearly stated in Veterans. For
easy reference, these are:
First, the twenty percent allocation the combined number
of all party-list congressmen shall not exceed twenty percent of the
total membership of the House of Representatives, including those
elected under the party list;
Second, the two percent threshold only those parties
garnering a minimum of two percent of the total valid votes cast for
the party-list system are qualified to have a seat in the House of
Representatives;
Third, the three-seat limit each qualified party, regardless of
the number of votes it actually obtained, is entitled to a maximum of
three seats; that is, one qualifying and two additional seats;
Fourth, proportional representation the additional seats which
a qualified party is entitled to shall be computed in proportion to their
total number of votes.[19]
However, because the formula in Veterans has flaws in its mathematical
interpretation of the term proportional representation, this Court is compelled to
revisit the formula for the allocation of additional seats to party-list organizations.
Number of Party-List Representatives:
The Formula Mandated by the Constitution
Section 5, Article VI of the Constitution provides:

Section 5. (1) The House of Representatives shall be composed

of not more than two hundred and fifty members, unless otherwise
fixed by law, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area in
accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and those who, as provided by
law, shall be elected through a party-list system of registered national,
regional, and sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per
centum of the total number of representatives including those under
the party-list. For three consecutive terms after the ratification of this
Constitution, one-half of the seats allocated to party-list
representatives shall be filled, as provided by law, by selection or
election from the labor, peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors as may be
provided by law, except the religious sector.
The first paragraph of Section 11 of R.A. No. 7941 reads:
Section 11. Number of Party-List Representatives. The partylist representatives shall constitute twenty per centum (20%) of the
total number of the members of the House of Representatives
including those under the party-list.
xxx
Section 5(1), Article VI of the Constitution states that the House of
Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law. The House of Representatives shall be
composed of district representatives and party-list representatives. The
Constitution allows the legislature to modify the number of the members of the
House of Representatives.
Section 5(2), Article VI of the Constitution, on the other hand, states the ratio
of party-list representatives to the total number of representatives. We compute
the number of seats available to party-list representatives from the number of
legislative districts. On this point, we do not deviate from the first formula
in Veterans, thus:
Number
of
seats
available to legislative x .20 =
districts

Number of seats available

to
party-list representatives

.80

This formula allows for the corresponding increase in the number of seats available
for party-list representatives whenever a legislative district is created by law. Since

the 14th Congress of the Philippines has 220 district representatives, there are 55
seats available to party-list representatives.
220

x .20 =

55

.80
After prescribing the ratio of the number of party-list representatives to the
total number of representatives, the Constitution left the manner of allocating
the seats available to party-list representatives to the wisdom of the
legislature.
Allocation of Seats for Party-List Representatives:
The Statutory Limits Presented by the Two Percent Threshold
and the Three-Seat Cap
All parties agree on the formula to determine the maximum number of seats
reserved under the Party-List System, as well as on the formula to determine the
guaranteed seats to party-list candidates garnering at least two-percent of the total
party-list votes. However, there are numerous interpretations of the provisions of
R.A. No. 7941 on the allocation of additional seats under the Party-List
System. Veterans produced the First Party Rule, [20] and Justice Vicente V. Mendozas
dissent in Veterans presented Germanys Niemeyer formula[21] as an alternative.
The Constitution left to Congress the determination of the manner
of allocating the seats for party-list representatives. Congress enacted R.A. No.
7941, paragraphs (a) and (b) of Section 11 and Section 12 of which provide:
Section 11. Number of Party-List Representatives. x x x
[22]

In determining the allocation of seats for the second vote,

the following procedure shall be observed:

(a)
The parties, organizations, and coalitions shall be ranked from
the highest to the lowest based on the number of votes they garnered
during the elections.
(b)
The parties, organizations, and coalitions receiving at least two
percent (2%) of the total votes cast for the party-list system shall be
entitled to one seat each: Provided, That those garnering more
than two percent (2%) of the votes shall be entitled to
additional seats in proportion to their total number of
votes: Provided, finally, That each party, organization, or coalition
shall be entitled to not more than three (3) seats.
Section 12. Procedure in Allocating Seats for Party-List
Representatives. The COMELEC shall tally all the votes for the
parties, organizations, or coalitions on a nationwide basis, rank them
according to the number of votes received and allocate party-list

representatives proportionately according to the percentage of votes

obtained by each party, organization, or coalition as against the total
nationwide votes cast for the party-list system. (Emphasis supplied)
In G.R. No. 179271, BANAT presents two interpretations through three
formulas to allocate party-list representative seats.
The first interpretation allegedly harmonizes the provisions of Section 11(b)
on the 2% requirement with Section 12 of R.A. No. 7941. BANAT described this
procedure as follows:
(a)
The party-list representatives shall constitute twenty percent
(20%) of the total Members of the House of Representatives including
those from the party-list groups as prescribed by Section 5, Article VI of
the Constitution, Section 11 (1st par.) of RA 7941 and Comelec
Resolution No. 2847 dated 25 June 1996. Since there are 220 District
Representatives in the 14th Congress, there shall be 55 Party-List
Representatives. All seats shall have to be proclaimed.
(b)
All party-list groups shall initially be allotted one (1) seat for
every two per centum (2%) of the total party-list votes they obtained;
provided, that no party-list groups shall have more than three (3) seats
(Section 11, RA 7941).
(c)
The remaining seats shall, after deducting the seats obtained
by the party-list groups under the immediately preceding paragraph
and after deducting from their total the votes corresponding to those
seats, the remaining seats shall be allotted proportionately to all the
party-list groups which have not secured the maximum three (3) seats
under the 2% threshold rule, in accordance with Section 12 of RA 7941.
[23]

Forty-four (44) party-list seats will be awarded under BANATs first interpretation.
The second interpretation presented by BANAT assumes that the 2% vote
requirement is declared unconstitutional, and apportions the seats for party-list
representatives by following Section 12 of R.A. No. 7941. BANAT states that the
COMELEC:
(a)
shall tally all the votes for the parties, organizations, or
coalitions
on a nationwide basis;
(b)
rank them according to the number of votes received; and,
(c)
allocate party-list representatives proportionately according to
the percentage of votes obtained by each party, organization
or
coalition as against the total nationwide votes cast for the
party-list system.[24]

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

Table 1. Ranking of the participating parties from the highest to the

lowest based on the number of votes garnered during the elections. [27]

Ran
k

Party

Votes
Garnere
d

Party

Votes
Garnere
d

BUHAY

1,169,234 48

KALAHI

88,868

BAYAN MUNA 979,039

49

APOI

79,386

CIBAC

755,686

50

BP

78,541

GABRIELA

621,171

51

AHONBAYAN

78,424

APEC

619,657

52

BIGKIS

77,327

A TEACHER

490,379

53

PMAP

75,200

AKBAYAN

466,112

54

AKAPIN

74,686

Ran
k

ALAGAD

423,149

55

PBA

71,544

COOPNATCCO

409,883

56

GRECON

62,220

10

BUTIL

409,160

57

BTM

60,993

11

BATAS

385,810

58

A SMILE

58,717

12

ARC

374,288

59

NELFFI

57,872

13

ANAKPAWIS

370,261

60

AKSA

57,012

14

ABONO

339,990

61

BAGO

55,846

15

AMIN

338,185

62

BANDILA

54,751

16

AGAP

328,724

63

AHON

54,522

17

AN WARAY

321,503

64

ASAHAN MO

51,722

18

YACAP

310,889

65

AGBIAG!

50,837

19

FPJPM

300,923

66

SPI

50,478

20

UNI-MAD

245,382

67

BAHANDI

46,612

21

ABS

235,086

68

ADD

45,624

22

KAKUSA

228,999

69

AMANG

43,062

23

KABATAAN

228,637

70

ABAY PARAK

42,282

24

ABA-AKO

218,818

71

BABAE KA

36,512

25

ALIF

217,822

72

SB

34,835

26

SENIOR
CITIZENS

213,058

73

ASAP

34,098

27

AT

197,872

74

PEP

33,938

28

VFP

196,266

75

ABA ILONGGO 33,903

29

ANAD

188,521

76

VENDORS

33,691

30

BANAT

177,028

77

ADD-TRIBAL

32,896

31

ANG
KASANGGA

170,531

78

ALMANA

32,255

32

BANTAY

169,801

79

AANGAT
PILIPINO

KA 29,130

33

ABAKADA

166,747

80

AAPS

26,271

34

1-UTAK

164,980

81

HAPI

25,781

35

TUCP

162,647

82

AAWAS

22,946

36

COCOFED

155,920

83

SM

20,744

37

AGHAM

146,032

84

AG

16,916

38

ANAK

141,817

85

AGING PINOY

16,729

39

ABANSE!
PINAY

130,356

86

APO

16,421

40

PM

119,054

87

BIYAYANG
BUKID

16,241

41

AVE

110,769

88

ATS

14,161

42

SUARA

110,732

89

UMDJ

9,445

43

ASSALAM

110,440

90

BUKLOD
FILIPINA

8,915

44

DIWA

107,021

91

LYPAD

8,471

45

ANC

99,636

92

AA-KASOSYO

8,406

46

SANLAKAS

97,375

93

KASAPI

6,221

47

ABC

90,058

TOTAL

15,950,9
00

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

Rank

Party

BUHAY

1,169,23 7.33%
4

BAYAN MUNA

979,039

6.14%

CIBAC

755,686

4.74%

GABRIELA

621,171

3.89%

APEC

619,657

3.88%

A TEACHER

490,379

3.07%

AKBAYAN

466,112

2.92%

ALAGAD

423,149

2.65%

COOP-NATCCO

409,883

2.57%

10

BUTIL

409,160

2.57%

385,810

2.42%

[29]

11

BATAS

12

ARC

374,288

2.35%

13

ANAKPAWIS

370,261

2.32%

14

ABONO

339,990

2.13%

15

AMIN

338,185

2.12%

16

AGAP

328,724

2.06%

17

AN WARAY

321,503

2.02%

Total

17

18

YACAP

310,889

1.95%

19

FPJPM

300,923

1.89%

20

UNI-MAD

245,382

1.54%

From Table 2 above, we see that only 17 party-list candidates received at

least 2% from the total number of votes cast for party-list candidates. The 17
qualified party-list candidates, or the two-percenters, are the party-list candidates
that are entitled to one seat each, or the guaranteed seat. In this first round of
seat allocation, we distributed 17 guaranteed seats.
The second clause of Section 11(b) of R.A. No. 7941 provides that those
garnering more than two percent (2%) of the votes shall be entitled to additional
seats in proportion to their total number of votes. This is where petitioners
and intervenors problem with the formula in Veterans lies. Veterans interprets the
clause in proportion to their total number of votes to be in proportion to the
votes of the first party. This interpretation is contrary to the express language of
R.A. No. 7941.
We rule that, in computing the allocation of additional seats, the continued
operation of the two percent threshold for the distribution of the additional seats as
found
in
the
second
clause
of Section
11(b)
of
R.A.
No.
7941
is unconstitutional. This Court finds that the two percent threshold makes it
mathematically impossible to achieve the maximum number of available party list
seats when the number of available party list seats exceeds 50. The continued
operation of the two percent threshold in the distribution of the additional seats
frustrates the attainment of the permissive ceiling that 20% of the members of the
House of Representatives shall consist of party-list representatives.
To illustrate: There are 55 available party-list seats. Suppose there are 50
million votes cast for the 100 participants in the party list elections. A party that
has two percent of the votes cast, or one million votes, gets a guaranteed seat. Let
us further assume that the first 50 parties all get one million votes. Only 50 parties

get a seat despite the availability of 55 seats. Because of the operation of the two
percent threshold, this situation will repeat itself even if we increase the available
party-list seats to 60 seats and even if we increase the votes cast to 100
million. Thus, even if the maximum number of parties get two percent of the votes
for every party, it is always impossible for the number of occupied party-list seats to
exceed 50 seats as long as the two percent threshold is present.
We therefore strike down the two percent threshold only in relation to the
distribution of the additional seats as found in the second clause of Section 11(b) of
R.A. No. 7941. The two percent threshold presents an unwarranted obstacle to the
full implementation of Section 5(2), Article VI of the Constitution and prevents the
attainment of the broadest possible representation of party, sectoral or group
interests in the House of Representatives.[30]
In determining the allocation of seats for party-list representatives under
Section 11 of R.A. No. 7941, the following procedure shall be observed:
1.
The parties, organizations, and coalitions shall be ranked from the
highest to the lowest based on the number of votes they garnered during the
elections.
2.
The parties, organizations, and coalitions receiving at least two percent
(2%) of the total votes cast for the party-list system shall be entitled to one
guaranteed seat each.
3.
Those garnering sufficient number of votes, according to the ranking in
paragraph 1, shall be entitled to additional seats in proportion to their total number
of votes until all the additional seats are allocated.
4.
Each party, organization, or coalition shall be entitled to not more than
three (3) seats.
In computing the additional seats, the guaranteed seats shall no longer be
included because they have already been allocated, at one seat each, to every twopercenter. Thus, the remaining available seats for allocation as additional
seats are the maximum seats reserved under the Party List System less the
guaranteed seats. Fractional seats are disregarded in the absence of a provision in
R.A. No. 7941 allowing for a rounding off of fractional seats.
In declaring the two percent threshold unconstitutional, we do not limit our
allocation of additional seats in Table 3 below to the two-percenters. The
percentage of votes garnered by each party-list candidate is arrived at by dividing
the number of votes garnered by each party by 15,950,900, the total number of
votes cast for party-list candidates. There are two steps in the second round of seat
allocation. First, the percentage is multiplied by the remaining available seats, 38,
which is the difference between the 55 maximum seats reserved under the PartyList System and the 17 guaranteed seats of the two-percenters. The whole integer
of the product of the percentage and of the remaining available seats corresponds
to a partys share in the remaining available seats. Second, we assign one party-list
seat to each of the parties next in rank until all available seats are completely

distributed. We distributed all of the remaining 38 seats in the second round of seat
allocation. Finally, we apply the three-seat cap to determine the number of seats
each qualified party-list candidate is entitled. Thus:

Table 3. Distribution of Available Party-List Seats

Rank

Party

Votes
Garnere
d

Votes
Garnere Guarante
d over
ed Seat
Total
Votes
for
Party
List, in
%
(First
Round)
(B)
(A)

(B)
Addition
Applyin
plus
al
g
the
(C), in
Seats
three
whole
seat
intege
cap
rs

(Second
Round)
(C)

(D)

(E)

BUHAY

1,169,234 7.33%

2.79

N.A.

BAYAN
MUNA

979,039

6.14%

2.33

N.A.

CIBAC

755,686

4.74%

1.80

N.A.

GABRIELA 621,171

3.89%

1.48

N.A.

APEC

619,657

3.88%

1.48

N.A.

A Teacher

490,379

3.07%

1.17

N.A.

AKBAYAN

466,112

2.92%

1.11

N.A.

ALAGAD

423,149

2.65%

1.01

N.A.

COOPNATCCO

409,883

2.57%

N.A.

10

BUTIL

409,160

2.57%

N.A.

11

BATAS

385,810

2.42%

N.A.

12

ARC

374,288

2.35%

N.A.

13

ANAKPAWI 370,261
S

2.32%

N.A.

14

ABONO

2.13%

N.A.

8
9

[31]

339,990

15

AMIN

338,185

2.12%

N.A.

16

AGAP

328,724

2.06%

N.A.

17

AN WARAY 321,503

2.02%

N.A.

18

YACAP

310,889

1.95%

N.A.

19

FPJPM

300,923

1.89%

N.A.

20

UNI-MAD

245,382

1.54%

N.A.

21

ABS

235,086

1.47%

N.A.

22

KAKUSA

228,999

1.44%

N.A.

23

KABATAAN 228,637

1.43%

N.A.

24

ABA-AKO

218,818

1.37%

N.A.

25

ALIF

217,822

1.37%

N.A.

26

SENIOR
CITIZENS

213,058

1.34%

N.A.

27

AT

197,872

1.24%

N.A.

28

VFP

196,266

1.23%

N.A.

29

ANAD

188,521

1.18%

N.A.

30

BANAT

177,028

1.11%

N.A.

31

ANG
170,531
KASANGG
A

1.07%

N.A.

32

BANTAY

169,801

1.06%

N.A.

33

ABAKADA

166,747

1.05%

N.A.

34

1-UTAK

164,980

1.03%

N.A.

35

TUCP

162,647

1.02%

N.A.

36

COCOFED 155,920

0.98%

N.A.

Total

17

55

Applying the procedure of seat allocation as illustrated in Table 3 above, there

are 55 party-list representatives from the 36 winning party-list organizations. All 55
available party-list seats are filled. The additional seats allocated to the parties
with sufficient number of votes for one whole seat, in no case to exceed a total of
three seats for each party, are shown in column (D).
Participation of Major Political Parties in Party-List Elections

The Constitutional Commission adopted a multi-party system that allowed

all political parties to participate in the party-list elections. The
deliberations of the Constitutional Commission clearly bear this out, thus:
MR. MONSOD. Madam President, I just want to say that we
suggested or proposed the party list system because we wanted to
open up the political system to a pluralistic society through a
multiparty system. x x x We are for opening up the system, and
we would like very much for the sectors to be there. That is
why one of the ways to do that is to put a ceiling on the
number of representatives from any single party that can sit
within the 50 allocated under the party list system. x x x.
xxx
MR. MONSOD. Madam President, the candidacy for the 198
seats is not limited to political parties. My question is this: Are we
going to classify for example Christian Democrats and Social
Democrats as political parties? Can they run under the party list
concept or must they be under the district legislation side of it only?
MR. VILLACORTA. In reply to that query, I think these parties
that the Commissioner mentioned can field candidates for the Senate
as well as for the House of Representatives. Likewise, they can also
field sectoral candidates for the 20 percent or 30 percent,
whichever is adopted, of the seats that we are allocating under
the party list system.
MR. MONSOD. In other words, the Christian Democrats can
field district candidates and can also participate in the party list
system?
MR. VILLACORTA. Why not? When they come to the party
list system, they will be fielding only sectoral candidates.
MR. MONSOD. May I be
participate in the party list system?

clarified

on

that? Can

UNIDO

MR. VILLACORTA. Yes, why not? For as long as they field

candidates who come from the different marginalized sectors
that we shall designate in this Constitution.
MR. MONSOD. Suppose Senator Taada wants to run under
BAYAN group and says that he represents the farmers, would he
qualify?
MR. VILLACORTA. No, Senator Taada would not qualify.

MR. MONSOD. But UNIDO can field candidates under the party
list system and say Juan dela Cruz is a farmer. Who would pass on
whether he is a farmer or not?
MR. TADEO. Kay Commissioner Monsod, gusto ko lamang
linawin ito. Political parties, particularly minority political
parties, are not prohibited to participate in the party list
election if they can prove that they are also organized along
sectoral lines.
MR. MONSOD. What the Commissioner is saying is that all
political parties can participate because it is precisely the contention of
political parties that they represent the broad base of citizens and that
all sectors are represented in them. Would the Commissioner agree?
MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang
UNIDO na isang political party, it will dominate the party list at
mawawalang saysay din yung sector. Lalamunin mismo ng political
parties ang party list system. Gusto ko lamang bigyan ng diin ang
reserve. Hindi ito reserve seat sa marginalized sectors. Kung
titingnan natin itong 198 seats, reserved din ito sa political parties.
MR. MONSOD. Hindi po reserved iyon kasi anybody can run
there. But my question to Commissioner Villacorta and probably also
to Commissioner Tadeo is that under this system, would UNIDO be
banned from running under the party list system?
MR. VILLACORTA. No, as I said, UNIDO may field sectoral
candidates. On that condition alone, UNIDO may be allowed to
register for the party list system.
MR. MONSOD. May I inquire from Commissioner Tadeo if he
shares that answer?
MR. TADEO. The same.
MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral
lines.
xxxx
MR. OPLE. x x x In my opinion, this will also create the
stimulus for political parties and mass organizations to seek common
ground. For example, we have the PDP-Laban and the UNIDO. I see no
reason why they should not be able to make common goals with mass
organizations so that the very leadership of these parties can be
transformed through the participation of mass organizations. And if
this is true of the administration parties, this will be true of others like
the Partido ng Bayan which is now being formed. There is no question
that they will be attractive to many mass organizations. In the

opposition parties to which we belong, there will be a stimulus for us to

contact mass organizations so that with their participation, the policies
of such parties can be radically transformed because this amendment
will create conditions that will challenge both the mass organizations
and the political parties to come together. And the party list system is
certainly available, although it is open to all the parties. It is
understood that the parties will enter in the roll of the COMELEC the
names of representatives of mass organizations affiliated with
them. So that we may, in time, develop this excellent system that they
have in Europe where labor organizations and cooperatives, for
example, distribute themselves either in the Social Democratic Party
and the Christian Democratic Party in Germany, and their very
presence there has a transforming effect upon the philosophies and
the leadership of those parties.
It is also a fact well known to all that in the United States, the
AFL-CIO always vote with the Democratic Party. But the businessmen,
most of them, always vote with the Republican Party, meaning that
there is no reason at all why political parties and mass organizations
should not combine, reenforce, influence and interact with each other
so that the very objectives that we set in this Constitution for sectoral
representation are achieved in a wider, more lasting, and more
institutionalized way. Therefore, I support this [Monsod-Villacorta]
amendment. It installs sectoral representation as a constitutional gift,
but at the same time, it challenges the sector to rise to the majesty of
being elected representatives later on through a party list system; and
even beyond that, to become actual political parties capable of
contesting political power in the wider constitutional arena for major
political parties.
x x x [32] (Emphasis supplied)
R.A. No. 7941 provided the details for the concepts put forward by the
Constitutional Commission. Section 3 of R.A. No. 7941 reads:
Definition of Terms. (a) The party-list system is a mechanism of
proportional representation in the election of representatives to the
House of Representatives from national, regional and sectoral parties
or organizations or coalitions thereof registered with the Commission
on Elections (COMELEC). Component parties or organizations of a
coalition may participate independently provided the coalition of which
they form part does not participate in the party-list system.
(b) A party means either a political party or a sectoral party or
a coalition of parties.
(c) A political party refers to an organized group of citizens
advocating an ideology or platform, principles and policies for the
general conduct of government and which, as the most immediate
means of securing their adoption, regularly nominates and supports
certain of its leaders and members as candidates for public office.

It is a national party when its constituency is spread over the

geographical territory of at least a majority of the regions. It is a
regional party when its constituency is spread over the geographical
territory of at least a majority of the cities and provinces comprising
the region.
(d) A sectoral party refers to an organized group of citizens
belonging to any of the sectors enumerated in Section 5 hereof whose
principal advocacy pertains to the special interests and concerns of
their sector,
(e) A sectoral organization refers to a group of citizens or a
coalition of groups of citizens who share similar physical attributes or
characteristics, employment, interests or concerns.
(f) A coalition refers to an aggrupation of duly registered
national, regional, sectoral parties or organizations for political and/or
election purposes.
Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party
from dominating the party-list elections.
Neither the Constitution nor R.A. No. 7941 prohibits major political parties
from participating in the party-list system. On the contrary, the framers of the
Constitution clearly intended the major political parties to participate in party-list
elections through their sectoral wings. In fact, the members of the Constitutional
Commission voted down, 19-22, any permanent sectoral seats, and in the
alternative the reservation of the party-list system to the sectoral groups. [33] In
defining a party that participates in party-list elections as either a political party
or a sectoral party, R.A. No. 7941 also clearly intended that major political parties
will participate in the party-list elections. Excluding the major political parties in
party-list elections is manifestly against the Constitution, the intent of the
Constitutional Commission, and R.A. No. 7941. This Court cannot engage in sociopolitical engineering and judicially legislate the exclusion of major political parties
from the party-list elections in patent violation of the Constitution and the law.
Read together, R.A. No. 7941 and the deliberations of the Constitutional
Commission state that major political parties are allowed to establish, or form
coalitions with, sectoral organizations for electoral or political purposes. There
should not be a problem if, for example, the Liberal Party participates in the partylist election through the Kabataang Liberal ng Pilipinas (KALIPI), its sectoral youth
wing. The other major political parties can thus organize, or affiliate with, their
chosen sector or sectors. To further illustrate, the Nacionalista Party can establish a
fisherfolk wing to participate in the party-list election, and this fisherfolk wing can
field its fisherfolk nominees. Kabalikat ng Malayang Pilipino (KAMPI) can do the
same for the urban poor.
The qualifications of party-list nominees are prescribed in Section 9 of R.A.
No. 7941:

Qualifications of Party-List Nominees. No person shall be

nominated as party-list representative unless he is a natural born
citizen of the Philippines, a registered voter, a resident of the
Philippines for a period of not less than one (1) year immediately
preceding the day of the elections, able to read and write, bona
fide member of the party or organization which he seeks to represent
for at least ninety (90) days preceding the day of the election, and is at
least twenty-five (25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be
twenty-five (25) but not more than thirty (30) years of age on the day
of
the
election. Any
youth
sectoral
representative
who
attains
the age of thirty (30) during his term shall be allowed to
continue until the expiration of his term.
Under Section 9 of R.A. No. 7941, it is not necessary that the party-list
organizations nominee wallow in poverty, destitution and infirmity [34] as there is
no financial status required in the law. It is enough that the nominee of the sectoral
party/organization/coalition belongs to the marginalized and underrepresented
sectors,[35] that is, if the nominee represents the fisherfolk, he or she must be a
fisherfolk, or if the nominee represents the senior citizens, he or she must be a
senior citizen.
Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the
entire 20% allocation of party-list representatives found in the Constitution. The
Constitution, in paragraph 1, Section 5 of Article VI, left the determination of the
number of the members of the House of Representatives to Congress: The House
of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, x x x. The 20% allocation of party-list
representatives is merely a ceiling; party-list representatives cannot be more than
20% of the members of the House of Representatives. However, we cannot allow
the continued existence of a provision in the law which will systematically prevent
the constitutionally allocated 20% party-list representatives from being filled. The
three-seat cap, as a limitation to the number of seats that a qualified party-list
organization may occupy, remains a valid statutory device that prevents any party
from dominating the party-list elections. Seats for party-list representatives shall
thus be allocated in accordance with the procedure used in Table 3 above.
However, by a vote of 8-7, the Court decided to continue the ruling
in Veterans disallowing major political parties from participating in the party-list
elections, directly or indirectly. Those who voted to continue disallowing major
political parties from the party-list elections joined Chief Justice Reynato S. Puno in
his separate opinion. On the formula to allocate party-list seats, the Court is
unanimous in concurring with this ponencia.
WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the
Resolution of the COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as
the Resolution dated 9 July 2007 in NBC No. 07-60. We declare unconstitutional

the two percent threshold in the distribution of additional party-list seats. The
allocation of additional seats under the Party-List System shall be in accordance
with the procedure used in Table 3 of this Decision. Major political parties are
disallowed from participating in party-list elections. This Decision is immediately
executory. No pronouncement as to costs.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice

Atong Paglaum v. Comelec

G.R. No. 203766

April 2, 2013

ATONG PAGLAUM, INC., represented by its President, Mr. Alan Igot, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
PERLAS-BERNABE,*
DECISION
CARPIO, J.:
The Cases
These cases constitute 54 Petitions for Certiorari and Petitions for Certiorari and
Prohibition1 filed by 52 party-list groups and organizations assailing the Resolutions issued by
the Commission on Elections (COMELEC) disqualifying them from participating in the 13 May
2013 party-list elections, either by denial of their petitions for registration under the party-list
system, or cancellation of their registration and accreditation as party-list organizations.
This Court resolved to consolidate the 54 petitions in the Resolutions dated 13 November
2012,2 20 November 2012,3 27 November 2012,4 4 December 2012,5 11 December 2012,6 and
19 February 2013.7
The Facts Pursuant to the provisions of Republic Act No. 7941 (R.A. No. 7941) and COMELEC
Resolution Nos. 9366 and 9531, approximately 280 groups and organizations registered and
manifested their desire to participate in the 13 May 2013 party-list elections.
G.R.
No.

SPP No.

Group

Grounds for Denial

A. Via the COMELEC En Bancs automatic review of

Divisions resolutions approving registration of groups/organizations

the

COMELEC

Resolution dated 23 November 20128

1

204379

12-099
(PLM)

Alagad
Sining (ASIN)

ng - The "artists" sector is not

considered
marginalized
and
underrepresented;
Failure
to
prove
track
record;
and
- Failure of the nominees to
qualify under RA 7941 and
Ang Bagong Bayani.

Omnibus Resolution dated 27 November 20129

2

204455

12-041
(PLM)

Manila
Savings
Loan
Association,
(Manila
Teachers)

204426

12-011
(PLM)

Association
Local
Entrepreneurs
and
Inc. (ALA-EH)

Teachers - A non-stock savings and

and loan
association
cannot
be
considered
marginalized
and
Inc. underrepresented;
and
The
first
and
second
nominees are not teachers by
profession.
of - Failure to show that its
Athletics members
belong
to
the
marginalized;
and
Hobbyists, - Failure of the nominees to
qualify.

Resolution dated 27 November 201210

4

204435

12-057
(PLM)

1
Advocating
Autonomy
(1AAAP)

Alliance - Failure of the nominees to

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

Resolution dated 27 November 201211

5

204367

12-104 (PL) Akbay

Kalusugan
(AKIN), Inc.

- Failure of the group to show

that its nominees belong to
the urban poor sector.

Resolution dated 29 November 201212

6

204370

12-011 (PP) Ako

(AAB)

An

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

- Lack of track record in

representing
peasants
and
farmers;
and
Nominees
are
neither
farmers nor peasants.
Resolution dated 4 December 201213
7

204436

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

Abyan
Party (AI)

Ilonggo - Failure to show that the

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

Resolution dated 4 December 201214

8

204485

12-175 (PL) Alliance

of - Failure to establish that the
Organizations,
group
can
represent
14
Networks and Associations sectors;
The
sectors
of
of
homeowners
the
Philippines, associations,
entrepreneurs
Inc. (ALONA)
and
cooperatives
are
not
marginalized
and
underrepresented;
and
- The nominees do not belong
to
the
marginalized
and
underrepresented.

B. Via the COMELEC En Bancs review on motion for reconsideration

of the COMELEC Divisions resolutions denying registration of groups
and organizations
Resolution dated 7 November 201215
9

204139

12-127 (PL) Alab

Mamamahayag
(ALAM)

ng Failure
to
prove
track
record
as
an
organization;
- Failure to show that the
group actually represents the
marginalized
and
underrepresented;
and
- Failure to establish that the
group
can
represent
all
sectors it seeks to represent.

Resolution dated 7 November 201216

1
0

204402

12-061 (PP) Kalikasan

(KALIKASAN)

Party-List The
group
reflects
advocacy
for
environment,
and
is
representative
of
marginalized

an
the
not
the
and

underrepresented;
- There
is
no
proof
that
majority
of
its
members
belong
to
the
marginalized
and
underrepresented;
The
group
represents
sectors
with
conflicting
interests;
and
- The nominees do not belong
to the sector which the group
claims to represent.
Resolution dated 14 November 201217
11 204394

12-145 (PL) Association

Guard,
Helper,
Rider,
Domestic
Helper,
Janitor,
and
Nanny
of
Philippines,
(GUARDJAN)

of
Utility
Aider,
Driver/

Failure
to
prove
membership
base
and
track
record;
- Failure to present activities
that
sufficiently
benefited
its
intended
constituency;
and
Agent - The nominees do not belong
to any of the sectors which
the the group seeks to represent.
Inc.

Resolution dated 5 December 201218

1
2

204490

12-073
(PLM)

Pilipinas
Pinoy (PPP)

Para

sa - Failure to show that the

group
represents
a
marginalized
and
underrepresented
sector,
as
Region
12
has
district
representatives;
and
- Failure to show a track
record
of
undertaking
programs for the welfare of
the sector the group seeks to
represent.

In a Resolution dated 5 December 2012,19 the COMELEC En Banc affirmed the COMELEC
Second Divisions resolution to grant Partido ng Bayan ng Bidas (PBB) registration and
accreditation as a political party in the National Capital Region. However, PBB was denied
participation in the 13 May 2013 party-list elections because PBB does not represent any
"marginalized and underrepresented" sector; PBB failed to apply for registration as a party-list
group; and PBB failed to establish its track record as an organization that seeks to uplift the
lives
of
the
"marginalized
and
underrepresented."20
These 13 petitioners (ASIN, Manila Teachers, ALA-EH, 1AAAP, AKIN, AAB, AI, ALONA, ALAM,
KALIKASAN, GUARDJAN, PPP, and PBB) were not able to secure a mandatory injunction from
this Court. The COMELEC, on 7 January 2013 issued Resolution No. 9604, 21 and excluded the
names of these 13 petitioners in the printing of the official ballot for the 13 May 2013 party-list
elections.
Pursuant to paragraph 222 of Resolution No. 9513, the COMELEC En Banc scheduled summary

evidentiary hearings to determine whether the groups and organizations that filed
manifestations of intent to participate in the 13 May 2013 party-list elections have continually
complied with the requirements of R.A. No. 7941 and Ang Bagong Bayani-OFW Labor Party v.
COMELEC23 (Ang Bagong Bayani). The COMELEC disqualified the following groups and
organizations from participating in the 13 May 2013 party-list elections:
G.R. No.

SPP
No.

Group

Grounds for Denial

Resolution dated 10 October 201224

1

20381819

12-154
(PLM)
12-177
(PLM)

AKO
Political
(AKB)

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

Omnibus Resolution dated 11 October 201225

2

203766

12-161
(PLM)

Atong
Inc.
Paglaum)

Paglaum, Cancelled
registration
and
(Atong accreditation
- The nominees do not belong
to
the
sectors
which
the
party
represents;
and
The
party
failed
to
file
its
Statement
of
Contributions
and
Expenditures
for
the
2010 Elections.

203981

12-187
(PLM)

Association
Righteousness
Advocacy
Leadership
(ARAL)

204002

12-188
(PLM)

Alliance
Rural
(ARC)

for Cancelled
registration
and
accreditation
on Failure
to
comply,
and
for
violation
of
election
laws;
The
nominees
do
not
represent
the
sectors
which
the
party
represents;
and
- There is doubt that the party
is
organized
for
religious
purposes.

for Cancelled
registration
and
Concerns accreditation
Failure
of
the
nominees
to
qualify;
and
- Failure of the party to prove

that
majority
of
its
belong
to
the
sectors
to represent.
5

204318

12-220
(PLM)

United
Movement
Against
Foundation
(UNIMAD)

it

members
seeks

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

Omnibus Resolution dated 16 October 201226

6

204100

12-196
(PLM)

1-Bro
Philippine
Guardians
Brotherhood,
Inc. (1BRO-PGBI)

Cancelled
registration
Failure
to
define
the
sector
it
seeks
to
represent;
and
- The nominees do not belong
to
a
marginalized
and
underrepresented sector.

204122

12-223
(PLM)

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

Cancelled
registration
The
party
is
a
military
fraternity;
The
sector
of
community
volunteer
workers
is
too
broad
to
allow
for
meaningful
representation;
and
- The nominees do not appear
to
belong
to
the
sector
of
community
volunteer
workers.

20426

12-257
(PLM)

Blessed
Federation
Farmers
Fishermen
International,
Inc.
BLESSED
Party-List)

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

Resolution dated 16 October 201227

9

203960

12-260
(PLM)

1st
Consumers
Alliance

Cancelled
The
sector
for consumers

of

registration
rural
energy
is
not

Rural
Inc. (1-CARE)

Energy, marginalized
and
underrepresented;
The
partys
track
record
is
related
to
electric
cooperatives
and
not
rural
energy
consumers;
and
- The nominees do not belong
to
the
sector
of
rural
energy
consumers.

Resolution dated 16 October 201228

10 203922

12-201
(PLM)

Association
Philippine
Electric
Cooperatives
(APEC)

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

Resolution dated 23 October 201229

11 204174

12-232
(PLM)

Aangat
Party-List
( AT )

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

Omnibus Resolution dated 24 October 201230

12 203976

12-288
(PLM)

Alliance
Rural
Agrarian
Reconstruction,
Inc. (ARARO)

for Cancelled
registration
and
and accreditation
The
interests
of
the
peasant
and
urban
poor
sectors
that
the
party
represents
differ;
- The nominees do not belong
to
the
sectors
that
the
party
seeks
to
represent;
- Failure to show that three of
the
nominees
are
bona
fide
party
members;
and
Lack
of
a
Board
resolution
to
participate
in
the
party-list
elections.

Omnibus Resolution dated 24 October 201231

13 204240

12-279
(PLM)

Agri-Agra
Reporma
Para
Magsasaka
Pilipinas
Movement
(AGRI)

na Cancelled
registration
sa - The party ceased to exist for
ng more
than
a
year
immediately
after
the
May
2010
elections;
- The nominees do not belong
to
the
sector
of
peasants
and
farmers that the party seeks to
represent;
Only
four
nominees
were
submitted
to
the
COMELEC;
and
Failure
to
show
meaningful
activities for its constituency.

14 203936

12-248
(PLM)

Aksyon
Magsasaka-Partido
Tinig
Masa (AKMA-PTM)

Cancelled
registration
Failure
to
show
that
ng majority
of
its
members
are
marginalized
and
underrepresented;
- Failure to prove that four of
its
nine
nominees
actually
belong
to
the
farmers
sector;
and
- Failure to show that five of
its
nine
nominees
work
on
uplifting
the
lives
of
the
members of the sector.

15 204126

12-263
(PLM)

Kaagapay
Nagkakaisang
Agilang
Pilipinong
Magsasaka
(KAP)

ng Cancelled
registration
The
Manifestation
of
Intent
and
Certificate
of
Nomination
were
not
signed
by
an
appropriate
officer
of
the
party;
Failure
to
show
track
record
for
the
farmers
and
peasants
sector;
and
Failure
to
show
that
nominees
actually
belong
to
the
sector,
or
that
they
have
undertaken
meaningful
activities for the sector.

16 204364

12-180
(PLM)

Adhikain
at
Kilusan
ng
Ordinaryong
Tao
Para
sa
Lupa,
Pabahay,
Hanapbuhay
at
Kaunlaran
(AKO-BAHAY)

17 204141

12-229
(PLM)

The
Marcos

Cancelled
registration
Failure
to
show
that
nominees
actually
belong
to
the
sector,
or
that
they
have
undertaken
meaningful
activities for the sector.

True Cancelled
Loyalist Failure

to

registration
show
that

(for
God,
Country
and
People)
Association
of
the
Philippines,
Inc. (BANTAY)
18 204408

12-217
(PLM)

Pilipino
Association
Country

Poor
Advancement
and
( PA C YAW )

19 204153

12-277
(PLM)

Pasang
Nationwide
Party
MASDA)

20 203958

12-015
(PLM)

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

majority
of
its
members
are
marginalized
and
underrepresented;
and
- Failure to prove that two of
its
nominees
actually
belong
to
the
marginalized
and
underrepresented.

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

Resolution dated 30 October 201232

21 204428

12-256
(PLM)

Ang
Pinoy (AG)

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

Resolution dated 7 November 201233

22 204094

12-185
(PLM)

Alliance
Nationalism
Democracy
(ANAD)

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

Omnibus Resolution dated 7 November 201234

23 204239

12-060
(PLM)

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

24 204236

12-254
(PLM)

Firm
Association,
(FIRM 24-K)

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

24-K Cancelled
registration
and
Inc. accreditation
The
nominees
do
not
belong
to
the
sector
that
the
party
seeks
to
represent
(urban
poor
and
peasants
of
the
National
Capital
Region);
Only
two
of
its
nominees
reside
in
the
National
Capital
Region;
and
Failure
to
comply
with
the
track record requirement.

25 204341

12-269
(PLM)

Action
League Cancelled
registration
and
of
Indigenous accreditation
Masses (ALIM)
Failure
to
establish
that
its
nominees
are
members
of
the
indigenous
people
in
the
Mindanao
and
Cordilleras
sector
that
the
party
seeks
to
represent;
Only
two
of
the
partys
nominees
reside
in
the
Mindanao
and
Cordilleras;
and
Three
of
the
nominees
do
not
appear
to
belong
to
the
marginalized.

Resolution dated 7 November 201235

26 204358

12-204
(PLM)

Alliance
Advocates
Mining
Advancement
for
Progress
(AAMA)

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

Resolution dated 7 November 201236

27 204359

12-272
(PLM)

Social
Movement
Active
and
Transparency
(SMART)

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

Resolution dated 7 November 201237

28 204238

12-173
(PLM)

Alliance
Bicolnon
(ABP)

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

Resolution dated 7 November 201238

29 204323

12-210
(PLM)

Bayani
List (BAYANI)

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

Resolution dated 7 November 201239

30 204321

12-252
(PLM)

Ang
Natin
(AANI)

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

Resolution dated 7 November 201240

31 204125

12-292
(PLM)

Agapay
Indigenous
Peoples
Alliance,
(A-IPRA)

ng Cancelled
registration
and
accreditation
Rights - Failure to prove that its five
Inc. nominees
are
members
of
the
indigenous
people
sector;
- Failure to prove that its five
nominees
actively
participated
in
the
undertakings
of
the
party;
and
- Failure to prove that its five nominees are
bona
fide
members.

Resolution dated 7 November 201241

32 204216

12-202
(PLM)

Philippine
Coconut
Producers
Federation,
(COCOFED)

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

sector
of
producers.

coconut

farmers

and

Resolution dated 7 November 201242

33 204220

12-238
(PLM)

Abang
Party-List
(ABANG
LINGKOD)

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

Resolution dated 14 November 201243

34 204158

12-158
(PLM)

Action
Cancelled
registration
and
Brotherhood for Active accreditation - Failure to show that the
Dreamers,
Inc. party
is
actually
able
to
(ABROAD)
represent
all
of
the
sectors
it
claims
to
represent;
Failure
to
show
a
complete
track
record
of
its
activities
since
its
registration;
and
The
nominees
are
not
part
of
any
of
the
sectors
which
the party seeks to represent.

Resolution dated 28 November 201244

35 204374

12-228
(PLM)

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

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

Resolution dated 28 November 201245

36 204356

12-136
(PLM)

Butil
Party (BUTIL)

Farmers Cancelled
accreditation
Failure
to
agriculture

registration
establish
and

and
that
the
cooperative

sectors
are
marginalized
and
underrepresented;
and
The
partys
nominees
neither
appear
to
belong
to
the
sectors
they
seek
to
represent,
nor
to
have
actively
participated
in
the
undertakings of the party.
Resolution dated 3 December 201246
37 204486

12-194
(PLM)

1st
Kabalikat
Bayan
Ginhawang
Sangkatauhan
(1st
KABAGIS)

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

Resolution dated 4 December 201247

38 204410

12-198
(PLM)

1-United
Transport
Koalisyon (1-UTAK)

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

Resolution dated 4 December 201248

39 204421,
204425

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

Coalition
Senior
in
Philippines,
(SENIOR
CITIZENS)

of
Citizens
the
Inc.

Cancelled
The
party
laws
because
had
a
agreement.

registration
violated
election
its
nominees
term-sharing

These 39 petitioners (AKB, Atong Paglaum, ARAL, ARC, UNIMAD, 1BRO-PGBI,

1GANAP/GUARDIANS, A BLESSED Party-List, 1-CARE, APEC, AT, ARARO, AGRI, AKMAPTM, KAP, AKO-BAHAY, BANTAY, PACYAW, PASANG MASDA, KAKUSA, AG, ANAD,
GREENFORCE, FIRM 24-K, ALIM, AAMA, SMART, ABP, BAYANI, AANI, A-IPRA, COCOFED,
ABANG LINGKOD, ABROAD, BINHI, BUTIL, 1st KABAGIS, 1-UTAK, SENIOR CITIZENS) were
able to secure a mandatory injunction from this Court, directing the COMELEC to include the
names of these 39 petitioners in the printing of the official ballot for the 13 May 2013 party-list
elections.
Petitioners prayed for the issuance of a temporary restraining order and/or writ of preliminary
injunction. This Court issued Status Quo Ante Orders in all petitions. This Decision governs only
the 54 consolidated petitions that were granted Status Quo Ante Orders, namely:

G.R. No.

SPP No.

Group

Resolution dated 13 November 2012

203818-19

12-154
(PLM)
12-177
(PLM)

AKO Bicol Political Party (AKB)

203981

12-187
(PLM)

Association
for
Leadership (ARAL)

204002

12-188
(PLM)

Alliance for Rural Concerns (ARC)

203922

12-201
(PLM)

Association
(APEC)

203960

12-260
(PLM)

1st
Consumers
(1-CARE)

203936

12-248
(PLM)

Aksyon
Magsasaka-Partido
(AKMA-PTM)

203958

12-015
(PLM)

Kapatiran ng
Inc. (KAKUSA)

203976

12-288
(PLM)

Alliance
for
Inc. (ARARO)

of

Righteousness

Philippine

Alliance

mga
Rural

Electric

for

Rural

Nakulong
and

Advocacy

on

Cooperatives

Energy,

Inc.

Tinig

ng

Masa

na

Walang

Sala,

Agrarian

Reconstruction,

Resolution dated 20 November 2012

204094

12-185
(PLM)

Alliance
(ANAD)

for

Nationalism

204125

12-292
(PLM)

Agapay
ng
Inc. (A-IPRA)

204100

12-196
(PLM)

1-Bro
Philippine
(1BRO-PGBI)

Indigenous

and

Peoples

Guardians

Democracy

Rights

Alliance,

Brotherhood,

Inc.

Resolution dated 27 November 2012

204141

12-229
(PLM)

The
True
Marcos
Loyalist
and People) Association of
(BANTAY)

(for
God,
Country
the Philippines, Inc.

204240

12-279
(PLM)

Agri-Agra na Reporma
Pilipinas Movement (AGRI)

204216

12-202
(PLM)

Philippine
Coconut
(COCOFED)

Producers

204158

12-158
(PLM)

Action
Brotherhood
(ABROAD)

for

Para

sa

Active

Magsasaka

ng

Federation,

Inc.

Dreamer,

Inc.

Resolutions dated 4 December 2012

204122

12-223

Guardians

Nationalist

Philippines,

Inc.

(PLM)

(1GANAP/GUARDIANS)

203766

12-161
(PLM)

Atong Paglaum, Inc. (Atong Paglaum)

204318

12-220
(PLM)

United
Movement
(UNIMAD)

204263

12-257
(PLM)

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

204174

12-232
(PLM)

Aangat Tayo Party-List Party (AT)

204126

12-263
(PLM)

Kaagapay
ng
Magsasaka (KAP)

204364

12-180
(PLM)

Adhikain at Kilusan
Lupa,
Pabahay,
(AKO-BAHAY)

204139

12-127 (PL)

Alab ng Mamamahayag (ALAM)

204220

12-238
(PLM)

Abang
LINGKOD)

204236

12-254
(PLM)

Firm 24-K Association, Inc. (FIRM 24-K)

204238

12-173
(PLM)

Alliance of Bicolnon Party (ABP)

204239

12-060
(PLM)

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

204321

12-252
(PLM)

Ang Agrikultura Natin Isulong (AANI)

204323

12-210
(PLM)

Bayani Party List (BAYANI)

204341

12-269
(PLM)

Action League of Indigenous Masses (ALIM)

204358

12-204
(PLM)

Alliance
of
Advocates
in
for National Progress (AAMA)

204359

12-272
(PLM)

Social
Movement
Transparency (SMART)

204356

12-136
(PLM)

Butil Farmers Party (BUTIL)

Against

Nagkakaisang

Drugs

Foundation

Agilang

Fishermen

Pilipinong

ng Ordinaryong Tao Para sa

Hanapbuhay
at
Kaunlaran

Lingkod

Party-List

for

Mining
Active

(ABANG

Sons

and

Advancement
Reform

and

Resolution dated 11 December 2012

204402

12-061 (PL)

Kalikasan Party-List (KALIKASAN)

204394

12-145 (PL)

Association
of
Guard,
Utility
Helper,
Rider,
Driver/Domestic
Helper,
Janitor,
and
Nanny
of
the
Philippines,

Aider,
Agent
Inc.

(GUARDJAN)
204408

12-217
(PLM)

Pilipino Association for Country

Youth Advancement and Welfare (PACYAW)

Urban

204428

12-256
(PLM)

Ang Galing Pinoy (AG)

204490

12-073
(PLM)

Pilipinas Para sa Pinoy (PPP)

204379

12-099
(PLM)

Alagad ng Sining (ASIN)

204367

12-104 (PL)

Akbay Kalusugan (AKIN)

204426

12-011
(PLM)

Association
of
Local
and Hobbyists, Inc. (ALA-EH)

Athletics

204455

12-041
(PLM)

Manila Teachers Savings

Inc. (Manila Teachers)

and

204374

12-228
(PLM)

Binhi-Partido ng mga
Magsasaka (BINHI)

204370

12-011 (PP)

Ako An Bisaya (AAB)

204435

12-057
(PLM)

1
Alliance
(1AAAP)

204486

12-194
(PLM)

1st
Kabalikat
ng
Sangkatauhan (1st KABAGIS)

204410

12-198
(PLM)

1-United Transport Koalisyon (1-UTAK)

204421,
204425

12-157
(PLM)
12-191
(PLM)

Coalition of Senior Citizens

Inc. (SENIOR CITIZENS)

204436

12-009
12-165
(PLM)

204485

12-175 (PL)

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

204484

11-002

Partido ng Bayan ng Bida (PBB)

Entrepreneurs

Loan

Magsasaka

Advocating

Association,

Para

sa

Autonomy
Bayan

in

Poor

mga

Party
Ginhawang

the

Philippines,

(PP), Abyan Ilonggo Party (AI)

and

Resolution dated 11 December 2012

204153

12-277
(PLM)

Pasang
MASDA)

Masda

Nationwide

Party

(PASANG

The Issues
We rule upon two issues: first, whether the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in disqualifying petitioners from participating in the 13

May 2013 party-list elections, either by denial of their new petitions for registration under the
party-list system, or by cancellation of their existing registration and accreditation as party-list
organizations; and second, whether the criteria for participating in the party-list system laid
down in Ang Bagong Bayani and Barangay Association for National Advancement and
Transparency v. Commission on Elections49 (BANAT) should be applied by the COMELEC in the
coming 13 May 2013 party-list elections.
The Courts Ruling
We hold that the COMELEC did not commit grave abuse of discretion in following prevailing
decisions of this Court in disqualifying petitioners from participating in the coming 13 May 2013
party-list elections. However, since the Court adopts in this Decision new parameters in the
qualification of national, regional, and sectoral parties under the party-list system, thereby
abandoning the rulings in the decisions applied by the COMELEC in disqualifying petitioners,
we remand to the COMELEC all the present petitions for the COMELEC to determine who are
qualified to register under the party-list system, and to participate in the coming 13 May 2013
party-list elections, under the new parameters prescribed in this Decision.
The Party-List System
The 1987 Constitution provides the basis for the party-list system of representation. Simply put,
the party-list system is intended to democratize political power by giving political parties that
cannot win in legislative district elections a chance to win seats in the House of
Representatives.50 The voter elects two representatives in the House of Representatives: one
for his or her legislative district, and another for his or her party-list group or organization of
choice. The 1987 Constitution provides:
Section 5, Article VI
(1) The House of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be elected through a party-list
system of registered national, regional, and sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated to party-list representatives
shall be filled, as provided by law, by selection or election from the labor, peasant, urban
poor, indigenous cultural communities, women, youth, and such other sectors as may be
provided by law, except the religious sector.

Sections 7 and 8, Article IX-C

Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except
for those registered under the party-list system as provided in this Constitution.
Sec. 8. Political parties, or organizations or coalitions registered under the party-list system,
shall not be represented in the voters registration boards, boards of election inspectors, boards

of canvassers, or other similar bodies. However, they shall be entitled to appoint poll watchers in
accordance with law.
Commissioner Christian S. Monsod, the main sponsor of the party-list system, stressed that
"the party-list system is not synonymous with that of the sectoral representation."51 The
constitutional provisions on the party-list system should be read in light of the following
discussion among its framers:
MR. MONSOD: x x x.
I would like to make a distinction from the beginning that the proposal for the party list system is
not synonymous with that of the sectoral representation. Precisely, the party list system seeks to
avoid the dilemma of choice of sectors and who constitute the members of the sectors. In
making the proposal on the party list system, we were made aware of the problems precisely
cited by Commissioner Bacani of which sectors will have reserved seats. In effect, a sectoral
representation in the Assembly would mean that certain sectors would have reserved seats; that
they will choose among themselves who would sit in those reserved seats. And then, we have
the problem of which sector because as we will notice in Proclamation No. 9, the sectors cited
were the farmers, fishermen, workers, students, professionals, business, military, academic,
ethnic and other similar groups. So these are the nine sectors that were identified here as
"sectoral representatives" to be represented in this Commission. The problem we had in trying
to approach sectoral representation in the Assembly was whether to stop at these nine sectors
or include other sectors. And we went through the exercise in a caucus of which sector should
be included which went up to 14 sectors. And as we all know, the longer we make our
enumeration, the more limiting the law become because when we make an enumeration we
exclude those who are not in the enumeration. Second, we had the problem of who comprise
the farmers. Let us just say the farmers and the laborers. These days, there are many citizens
who are called "hyphenated citizens." A doctor may be a farmer; a lawyer may also be a farmer.
And so, it is up to the discretion of the person to say "I am a farmer" so he would be included in
that sector.
The third problem is that when we go into a reserved seat system of sectoral representation in
the Assembly, we are, in effect, giving some people two votes and other people one vote. We
sought to avoid these problems by presenting a party list system. Under the party list system,
there are no reserved seats for sectors. Let us say, laborers and farmers can form a sectoral
party or a sectoral organization that will then register and present candidates of their party. How
do the mechanics go? Essentially, under the party list system, every voter has two votes, so
there is no discrimination. First, he will vote for the representative of his legislative district. That
is one vote. In that same ballot, he will be asked: What party or organization or coalition do you
wish to be represented in the Assembly? And here will be attached a list of the parties,
organizations or coalitions that have been registered with the COMELEC and are entitled to be
put in that list. This can be a regional party, a sectoral party, a national party, UNIDO,
Magsasaka or a regional party in Mindanao. One need not be a farmer to say that he wants the
farmers' party to be represented in the Assembly. Any citizen can vote for any party. At the end
of the day, the COMELEC will then tabulate the votes that had been garnered by each party or
each organization one does not have to be a political party and register in order to participate
as a party and count the votes and from there derive the percentage of the votes that had
been cast in favor of a party, organization or coalition.

When such parties register with the COMELEC, we are assuming that 50 of the 250 seats will
be for the party list system. So, we have a limit of 30 percent of 50. That means that the
maximum that any party can get out of these 50 seats is 15. When the parties register they then
submit a list of 15 names. They have to submit these names because these nominees have to
meet the minimum qualifications of a Member of the National Assembly. At the end of the day,
when the votes are tabulated, one gets the percentages. Let us say, UNIDO gets 10 percent or
15 percent of the votes; KMU gets 5 percent; a womens party gets 2 1/2 percent and anybody
who has at least 2 1/2 percent of the vote qualifies and the 50 seats are apportioned among all
of these parties who get at least 2 1/2 percent of the vote.
What does that mean? It means that any group or party who has a constituency of, say, 500,000
nationwide gets a seat in the National Assembly. What is the justification for that? When we
allocate legislative districts, we are saying that any district that has 200,000 votes gets a seat.
There is no reason why a group that has a national constituency, even if it is a sectoral or
special interest group, should not have a voice in the National Assembly. It also means that, let
us say, there are three or four labor groups, they all register as a party or as a group. If each of
them gets only one percent or five of them get one percent, they are not entitled to any
representative. So, they will begin to think that if they really have a common interest, they
should band together, form a coalition and get five percent of the vote and, therefore, have two
seats in the Assembly. Those are the dynamics of a party list system.
We feel that this approach gets around the mechanics of sectoral representation while at the
same time making sure that those who really have a national constituency or sectoral
constituency will get a chance to have a seat in the National Assembly. These sectors or these
groups may not have the constituency to win a seat on a legislative district basis. They may not
be able to win a seat on a district basis but surely, they will have votes on a nationwide basis.
The purpose of this is to open the system. In the past elections, we found out that there were
certain groups or parties that, if we count their votes nationwide; have about 1,000,000 or
1,500,000 votes. But they were always third place or fourth place in each of the districts. So,
they have no voice in the Assembly. But this way, they would have five or six representatives in
the Assembly even if they would not win individually in legislative districts. So, that is essentially
the mechanics, the purpose and objectives of the party list system.
BISHOP BACANI: Madam President, am I right in interpreting that when we speak now of party
list system though we refer to sectors, we would be referring to sectoral party list rather than
sectors and party list?
MR. MONSOD: As a matter of fact, if this body accepts the party list system, we do not even
have to mention sectors because the sectors would be included in the party list system. They
can be sectoral parties within the party list system.
xxxx
MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party
list system because we wanted to open up the political system to a pluralistic society through a
multiparty system. x x x We are for opening up the system, and we would like very much
for the sectors to be there. That is why one of the ways to do that is to put a ceiling on
the number of representatives from any single party that can sit within the 50 allocated
under the party list system. x x x.

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

MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that condition
alone, UNIDO may be allowed to register for the party list system.
MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer?
MR. TADEO. The same.
MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines.
MR. MONSOD: Sino po ang magsasabi kung iyong kandidato ng UNIDO ay hindi talagang
labor leader or isang laborer? Halimbawa, abogado ito.
MR. TADEO: Iyong mechanics.
MR. MONSOD: Hindi po mechanics iyon because we are trying to solve an inherent problem of
sectoral representation. My question is: Suppose UNIDO fields a labor leader, would he qualify?
MR. TADEO: The COMELEC may look into the truth of whether or not a political party is
really organized along a specific sectoral line. If such is verified or confirmed, the
political party may submit a list of individuals who are actually members of such sectors.
The lists are to be published to give individuals or organizations belonging to such
sector the chance to present evidence contradicting claims of membership in the said
sector or to question the claims of the existence of such sectoral organizations or
parties. This proceeding shall be conducted by the COMELEC and shall be summary in
character. In other words, COMELEC decisions on this matter are final and
unappealable.52 (Emphasis supplied)
Indisputably, the framers of the 1987 Constitution intended the party-list system to include not
only sectoral parties but also non-sectoral parties. The framers intended the sectoral parties to
constitute a part, but not the entirety, of the party-list system. As explained by Commissioner
Wilfredo Villacorta, political parties can participate in the party-list system "For as long
as they field candidates who come from the different marginalized sectors that we shall
designate in this Constitution."53
In fact, the framers voted down, 19-22, a proposal to reserve permanent seats to sectoral
parties in the House of Representatives, or alternatively, to reserve the party-list system
exclusively to sectoral parties. As clearly explained by Justice Jose C. Vitug in his Dissenting
Opinion in Ang Bagong Bayani:
The draft provisions on what was to become Article VI, Section 5, subsection (2), of the 1987
Constitution took off from two staunch positions the first headed by Commissioner Villacorta,
advocating that of the 20 per centum of the total seats in Congress to be allocated to party-list
representatives half were to be reserved to appointees from the marginalized and
underrepresented sectors. The proposal was opposed by some Commissioners. Mr. Monsod
expressed the difficulty in delimiting the sectors that needed representation. He was of the view
that reserving seats for the marginalized and underrepresented sectors would stunt their
development into full-pledged parties equipped with electoral machinery potent enough to
further the sectoral interests to be represented. The Villacorta group, on the other hand, was
apprehensive that pitting the unorganized and less-moneyed sectoral groups in an electoral
contest would be like placing babes in the lion's den, so to speak, with the bigger and more

established political parties ultimately gobbling them up. R.A. 7941 recognized this concern
when it banned the first five major political parties on the basis of party representation in the
House of Representatives from participating in the party-list system for the first party-list
elections held in 1998 (and to be automatically lifted starting with the 2001 elections). The
advocates for permanent seats for sectoral representatives made an effort towards a
compromise that the party-list system be open only to underrepresented and marginalized
sectors. This proposal was further whittled down by allocating only half of the seats under the
party-list system to candidates from the sectors which would garner the required number of
votes. The majority was unyielding. Voting 19-22, the proposal for permanent seats, and in the
alternative the reservation of the party-list system to the sectoral groups, was voted down. The
only concession the Villacorta group was able to muster was an assurance of reserved seats for
selected sectors for three consecutive terms after the enactment of the 1987 Constitution, by
which time they would be expected to gather and solidify their electoral base and brace
themselves in the multi-party electoral contest with the more veteran political
groups.54(Emphasis supplied)
Thus, in the end, the proposal to give permanent reserved seats to certain sectors was
outvoted. Instead, the reservation of seats to sectoral representatives was only allowed for the
first three consecutive terms.55 There can be no doubt whatsoever that the framers of the 1987
Constitution expressly rejected the proposal to make the party-list system exclusively for
sectoral parties only, and that they clearly intended the party-list system to include both sectoral
and non-sectoral parties.
The common denominator between sectoral and non-sectoral parties is that they cannot expect
to win in legislative district elections but they can garner, in nationwide elections, at least the
same number of votes that winning candidates can garner in legislative district elections. The
party-list system will be the entry point to membership in the House of Representatives for both
these non-traditional parties that could not compete in legislative district elections.
The indisputable intent of the framers of the 1987 Constitution to include in the party-list system
both sectoral and non-sectoral parties is clearly written in Section 5(1), Article VI of the
Constitution, which states:
Section 5. (1) The House of Representative shall be composed of not more that two hundred
and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with
the number of their respective inhabitants, and on the basis of a uniform and progressive ratio,
and those who, as provided by law, shall be elected through a party-list system of
registered national, regional, and sectoral parties or organizations. (Emphasis supplied)
Section 5(1), Article VI of the Constitution is crystal-clear that there shall be "a party-list
system of registered national, regional, and sectoral parties or organizations." The
commas after the words "national," and "regional," separate national and regional parties from
sectoral parties. Had the framers of the 1987 Constitution intended national and regional parties
to be at the same time sectoral, they would have stated "national and regional sectoral parties."
They did not, precisely because it was never their intention to make the party-list system
exclusively sectoral.
What the framers intended, and what they expressly wrote in Section 5(1), could not be any
clearer: the party-list system is composed of three different groups, and the sectoral parties

belong to only one of the three groups. The text of Section 5(1) leaves no room for any doubt
that national and regional parties are separate from sectoral parties.
Thus, the party-list system is composed of three different groups: (1) national parties or
organizations; (2) regional parties or organizations; and (3) sectoral parties or organizations.
National and regional parties or organizations are different from sectoral parties or
organizations. National and regional parties or organizations need not be organized along
sectoral lines and need not represent any particular sector.
Moreover, Section 5(2), Article VI of the 1987 Constitution mandates that, during the first three
consecutive terms of Congress after the ratification of the 1987 Constitution, "one-half of the
seats allocated to party-list representatives shall be filled, as provided by law, by selection or
election from the labor, peasant, urban poor, indigenous cultural communities, women, youth,
and such other sectors as may be provided by law, except the religious sector." This provision
clearly shows again that the party-list system is not exclusively for sectoral parties for two
obvious reasons.
First, the other one-half of the seats allocated to party-list representatives would naturally be
open to non-sectoral party-list representatives, clearly negating the idea that the party-list
system is exclusively for sectoral parties representing the "marginalized and underrepresented."
Second, the reservation of one-half of the party-list seats to sectoral parties applies only for the
first "three consecutive terms after the ratification of this Constitution," clearly making the partylist system fully open after the end of the first three congressional terms. This means that, after
this period, there will be no seats reserved for any class or type of party that qualifies under the
three groups constituting the party-list system.
Hence, the clear intent, express wording, and party-list structure ordained in Section 5(1)
and (2), Article VI of the 1987 Constitution cannot be disputed: the party-list system is not
for sectoral parties only, but also for non-sectoral parties.
Republic Act No. 7941 or the Party-List System Act, which is the law that implements the partylist system prescribed in the Constitution, provides:
Section 3. Definition of Terms. (a) The party-list system is a mechanism of proportional
representation in the election of representatives to the House of Representatives from national,
regional and sectoral parties or organizations or coalitions thereof registered with the
Commission on Elections (COMELEC). Component parties or organizations of a coalition may
participate independently provided the coalition of which they form part does not participate in
the party-list system.
(b) A party means either a political party or a sectoral party or a coalition of parties.
(c) A political party refers to an organized group of citizens advocating an ideology or
platform, principles and policies for the general conduct of government and which, as
the most immediate means of securing their adoption, regularly nominates and
supports certain of its leaders and members as candidates for public office.
It is a national party when its constituency is spread over the geographical territory of at least
a majority of the regions. It is a regional party when its constituency is spread over the
geographical territory of at least a majority of the cities and provinces comprising the region.

(d) A sectoral party refers to an organized group of citizens belonging to any of the
sectors enumerated in Section 5 hereof whose principal advocacy pertains to the
special interest and concerns of their sector.
(e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens who
share similar physical attributes or characteristics, employment, interests or concerns.
(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or
organizations for political and/or election purposes. (Emphasis supplied)

Section 3(a) of R.A. No. 7941 defines a "party" as "either a political party or a sectoral
party or a coalition of parties." Clearly, a political party is different from a sectoral party. Section
3(c) of R.A. No. 7941 further provides that a "political party refers to an organized group of
citizens advocating an ideology or platform, principles and policies for the general
conduct of government." On the other hand, Section 3(d) of R.A. No. 7941 provides that a
"sectoral party refers to an organized group of citizens belonging to any of the sectors
enumerated in Section 5 hereof whose principal advocacy pertains to the special interest
and concerns of their sector." R.A. No. 7941 provides different definitions for a political and a
sectoral party. Obviously, they are separate and distinct from each other.
R.A. No. 7941 does not require national and regional parties or organizations to represent
the "marginalized and underrepresented" sectors. To require all national and regional
parties under the party-list system to represent the "marginalized and underrepresented" is to
deprive and exclude, by judicial fiat, ideology-based and cause-oriented parties from the partylist system. How will these ideology-based and cause-oriented parties, who cannot win in
legislative district elections, participate in the electoral process if they are excluded from the
party-list system? To exclude them from the party-list system is to prevent them from joining the
parliamentary struggle, leaving as their only option the armed struggle. To exclude them from
the party-list system is, apart from being obviously senseless, patently contrary to the clear
intent and express wording of the 1987 Constitution and R.A. No. 7941.
Under the party-list system, an ideology-based or cause-oriented political party is clearly
different from a sectoral party. A political party need not be organized as a sectoral party and
need not represent any particular sector. There is no requirement in R.A. No. 7941 that a
national or regional political party must represent a "marginalized and underrepresented" sector.
It is sufficient that the political party consists of citizens who advocate the same ideology or
platform, or the same governance principles and policies, regardless of their economic status
as citizens.
Section 5 of R.A. No. 7941 states that "the sectors shall include labor, peasant, fisherfolk, urban
poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans,
overseas workers, andprofessionals."56 The sectors mentioned in Section 5 are not all
necessarily "marginalized and underrepresented." For sure, "professionals" are not by definition
"marginalized and underrepresented," not even the elderly, women, and the youth. However,
professionals, the elderly, women, and the youth may "lack well-defined political constituencies,"
and can thus organize themselves into sectoral parties in advocacy of the special interests and
concerns of their respective sectors.
Section 6 of R.A. No. 7941 provides another compelling reason for holding that the law does not
require national or regional parties, as well as certain sectoral parties in Section 5 of R.A. No.

7941, to represent the "marginalized and underrepresented." Section 6 provides the grounds for
the COMELEC to refuse or cancel the registration of parties or organizations after due notice
and hearing.
Section 6. Refusal and/or Cancellation of Registration. The COMELEC may, motu proprio or
upon verified complaint of any interested party, refuse or cancel, after due notice and hearing,
the registration of any national, regional or sectoral party, organization or coalition on any of the
following grounds:
(1) It is a religious sect or denomination, organization or association organized for religious
purposes;
(2) It advocates violence or unlawful means to seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign government, foreign political party, foundation,
organization, whether directly or through any of its officers or members or indirectly through
third parties for partisan election purposes;
(5) It violates or fails to comply with laws, rules or regulations relating to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two
per centum (2%) of the votes cast under the party-list system in the two (2) preceding
elections for the constituency in which it has registered.

None of the 8 grounds to refuse or cancel registration refers to non-representation of the

"marginalized and underrepresented."
The phrase "marginalized and underrepresented" appears only once in R.A. No. 7941, in
Section 2 on Declaration of Policy.57 Section 2 seeks "to promote proportional representation in
the election of representatives to the House of Representatives through the party-list system,"
which will enable Filipinos belonging to the"marginalized and underrepresented sectors,
organizations and parties, and who lack well-defined political constituencies," to become
members of the House of Representatives. While the policy declaration in Section 2 of R.A. No.
7941 broadly refers to "marginalized and underrepresented sectors, organizations and parties,"
the specific implementing provisions of R.A. No. 7941 do not define or require that the sectors,
organizations or parties must be "marginalized and underrepresented." On the contrary, to even
interpret that all the sectors mentioned in Section 5 are "marginalized and underrepresented"
would lead to absurdities.
How then should we harmonize the broad policy declaration in Section 2 of R.A. No. 7941 with
its specific implementing provisions, bearing in mind the applicable provisions of the 1987
Constitution on the matter?

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

Section 11 of R.A. No. 7941 expressly prohibited the "first five (5) major political parties on
the basis of party representation in the House of Representatives at the start of the Tenth
Congress" from participating in the May 1988 party-list elections. 59 Thus, major political
parties can participate in subsequent party-list elections since the prohibition is
expressly limited only to the 1988 party-list elections. However, major political parties
should participate in party-list elections only through their sectoral wings. The participation of
major political parties through their sectoral wings, a majority of whose members are
"marginalized and underrepresented" or lacking in "well-defined political constituencies," will
facilitate the entry of the "marginalized and underrepresented" and those who "lack well-defined
political constituencies" as members of the House of Representatives.
The 1987 Constitution and R.A. No. 7941 allow major political parties to participate in party-list
elections so as to encourage them to work assiduously in extending their constituencies to the
"marginalized and underrepresented" and to those who "lack well-defined political
constituencies." The participation of major political parties in party-list elections must be geared
towards the entry, as members of the House of Representatives, of the "marginalized and
underrepresented" and those who "lack well-defined political constituencies," giving them a
voice in law-making. Thus,to participate in party-list elections, a major political party that fields
candidates in the legislative district elections must organize a sectoral wing, like a labor,
peasant, fisherfolk, urban poor, professional, women or youth wing, that can register under the
party-list system.
Such sectoral wing of a major political party must have its own constitution, by-laws, platform or
program of government, officers and members, a majority of whom must belong to the sector
represented. The sectoral wing is in itself an independent sectoral party, and is linked to a major
political party through a coalition. This linkage is allowed by Section 3 of R.A. No. 7941, which
provides that "component parties or organizations of a coalition may participate independently
(in party-list elections) provided the coalition of which they form part does not participate in the
party-list system."
Section 9 of R.A. No. 7941 prescribes the qualifications of party-list nominees. This provision
prescribes a special qualification only for the nominee from the youth sector.
Section 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list
representative unless he is a natural-born citizen of the Philippines, a registered voter, a
resident of the Philippines for a period of not less than one (1) year immediately preceding the
day of the election, able to read and write, a bona fide member of the party or organization
which he seeks to represent for at least ninety (90) days preceding the day of the election, and
is at least twenty-five (25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than
thirty (30) years of age on the day of the election.
Any youth sectoral representative who attains the age of thirty (30) during his term shall be
allowed to continue in office until the expiration of his term.
1wphi1

A party-list nominee must be a bona fide member of the party or organization which he or she
seeks to represent.In the case of sectoral parties, to be a bona fide party-list nominee one
must either belong to the sector represented, or have a track record of advocacy for such
sector.

In disqualifying petitioners, the COMELEC used the criteria prescribed in Ang Bagong Bayani
and BANAT. Ang Bagong Bayani laid down the guidelines for qualifying those who desire to
participate in the party-list system:
First, the political party, sector, organization or coalition must represent the marginalized
and underrepresented groups identified in Section 5 of RA 7941. x x x
Second, while even major political parties are expressly allowed by RA 7941 and the
Constitution to participate in the party-list system, they must comply with the declared statutory
policy of enabling "Filipino citizens belonging to marginalized and underrepresented sectors x x
x to be elected to the House of Representatives." x x x.
xxxx
Third, x x x the religious sector may not be represented in the party-list system. x x x.
xxxx
Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941, which
enumerates the grounds for disqualification as follows:
"(1) It is a religious sect or denomination, organization or association, organized for religious
purposes;
(2) It advocates violence or unlawful means to seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign government, foreign political party, foundation,
organization, whether directly or through any of its officers or members or indirectly through
third parties for partisan election purposes;
(5) It violates or fails to comply with laws, rules or regulations relating to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two
per centum (2%) of the votes cast under the party-list system in the two (2) preceding
elections for the constituency in which it has registered."

Fifth, the party or organization must not be an adjunct of, or a project organized or an entity
funded or assisted by, the government. x x x.
xxxx
Sixth, the party must not only comply with the requirements of the law; its nominees must
likewise do so. Section 9 of RA 7941 reads as follows:

"SEC 9. Qualifications of Party-List Nominees. - No person shall be nominated as party-list

representative unless he is a natural-born citizen of the Philippines, a registered voter, a
resident of the Philippines for a period of not less than one (1)year immediately preceding the
day of the election, able to read and write, a bona fidemember of the party or organization which
he seeks to represent for at least ninety (90) days preceding the day of the election, and is at
least twenty-five (25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than
thirty (30) years of age on the day of the election. Any youth sectoral representative who attains
the age of thirty (30) during his term shall be allowed to continue in office until the expiration of
his term."
Seventh, not only the candidate party or organization must represent marginalized and
underrepresented sectors; so also must its nominees. x x x.
Eighth, x x x the nominee must likewise be able to contribute to the formulation and enactment
of appropriate legislation that will benefit the nation as a whole. (Emphasis supplied)
In 2009, by a vote of 8-7 in BANAT, this Court stretched the Ang Bagong Bayani ruling further. In
BANAT, the majority officially excluded major political parties from participating in party-list
elections,60 abandoning even the lip-service that Ang Bagong Bayani accorded to the 1987
Constitution and R.A.No. 7941 that major political parties can participate in party-list elections.
The minority in BANAT, however, believed that major political parties can participate in the partylist system through their sectoral wings. The minority expressed that "[e]xcluding the major
political parties in party-list elections is manifestly against the Constitution, the intent of the
Constitutional Commission, and R.A. No. 7941. This Court cannot engage in socio-political
engineering and judicially legislate the exclusion of major political parties from the party-list
elections in patent violation of the Constitution and the law." 61 The experimentations in sociopolitical engineering have only resulted in confusion and absurdity in the party-list system. Such
experimentations, in clear contravention of the 1987 Constitution and R.A. No. 7941, must now
come to an end.
We cannot, however, fault the COMELEC for following prevailing jurisprudence in disqualifying
petitioners. In following prevailing jurisprudence, the COMELEC could not have committed
grave abuse of discretion. However, for the coming 13 May 2013 party-list elections, we must
now impose and mandate the party-list system actually envisioned and authorized under the
1987 Constitution and R.A. No. 7941. In BANAT, this Court devised a new formula in the
allocation of party-list seats, reversing the COMELEC's allocation which followed the then
prevailing formula in Ang Bagong Bayani. In BANAT, however, the Court did not declare that the
COMELEC committed grave abuse of discretion. Similarly, even as we acknowledge here that
the COMELEC did not commit grave abuse of discretion, we declare that it would not be in
accord with the 1987 Constitution and R.A. No. 7941 to apply the criteria in Ang Bagong
Bayani and BANAT in determining who are qualified to participate in the coming 13 May 2013
party-list elections. For this purpose, we suspend our rule 62 that a party may appeal to this
Court from decisions or orders of the COMELEC only if the COMELEC committed grave abuse
of discretion.

Thus, we remand all the present petitions to the COMELEC. In determining who may participate
in the coming 13 May 2013 and subsequent party-list elections, the COMELEC shall adhere to
the following parameters:
1. Three different groups may participate in the party-list system: (1) national parties or
organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations.
2. National parties or organizations and regional parties or organizations do not need to
organize along sectoral lines and do not need to represent any "marginalized and
underrepresented" sector.
3. Political parties can participate in party-list elections provided they register under the
party-list system and do not field candidates in legislative district elections. A political party,
whether major or not, that fields candidates in legislative district elections can participate in
party-list elections only through its sectoral wing that can separately register under the partylist system. The sectoral wing is by itself an independent sectoral party, and is linked to a
political party through a coalition.
4. Sectoral parties or organizations may either be "marginalized and underrepresented" or
lacking in "well-defined political constituencies." It is enough that their principal advocacy
pertains to the special interest and concerns of their sector. The sectors that are
"marginalized and underrepresented" include labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, handicapped, veterans, and overseas workers. The sectors
that lack "well-defined political constituencies" include professionals, the elderly, women, and
the youth.
5. A majority of the members of sectoral parties or organizations that represent the
"marginalized and underrepresented" must belong to the "marginalized and
underrepresented" sector they represent. Similarly, a majority of the members of sectoral
parties or organizations that lack "well-defined political constituencies" must belong to the
sector they represent. The nominees of sectoral parties or organizations that represent the
"marginalized and underrepresented," or that represent those who lack "well-defined political
constituencies," either must belong to their respective sectors, or must have a track record of
advocacy for their respective sectors. The nominees of national and regional parties or
organizations must be bona-fide members of such parties or organizations.
6. National, regional, and sectoral parties or organizations shall not be disqualified if some of
their nominees are disqualified, provided that they have at least one nominee who remains
qualified.

The COMELEC excluded from participating in the 13 May 2013 party-list elections those that did
not satisfy these two criteria: (1) all national, regional, and sectoral groups or organizations must
represent the "marginalized and underrepresented" sectors, and (2) all nominees must belong
to the "marginalized and underrepresented" sector they represent. Petitioners may have been
disqualified by the COMELEC because as political or regional parties they are not organized
along sectoral lines and do not represent the "marginalized and underrepresented." Also,
petitioners' nominees who do not belong to the sectors they represent may have been
disqualified, although they may have a track record of advocacy for their sectors. Likewise,
nominees of non-sectoral parties may have been disqualified because they do not belong to any
sector. Moreover, a party may have been disqualified because one or more of its nominees
failed to qualify, even if the party has at least one remaining qualified nominee. As discussed

above, the disqualification of petitioners, and their nominees, under such circumstances is
contrary to the 1987 Constitution and R.A. No. 7941.
This Court is sworn to uphold the 1987 Constitution, apply its provisions faithfully, and desist
from engaging in socio-economic or political experimentations contrary to what the Constitution
has ordained. Judicial power does not include the power to re-write the Constitution. Thus, the
present petitions should be remanded to the COMELEC not because the COMELEC committed
grave abuse of discretion in disqualifying petitioners, but because petitioners may now possibly
qualify to participate in the coming 13 May 2013 party-list elections under the new parameters
prescribed by this Court.
WHEREFORE, all the present 54 petitions are GRANTED. The 13 petitions, which have been
granted Status Quo Ante Orders but without mandatory injunction to include the names of
petitioners in the printing of ballots, are remanded to the Commission on Elections only for
determination whether petitioners are qualified to register under the party-list system under the
parameters prescribed in this Decision but they shall not participate in the 13 May 2013 part-list
elections. The 41 petitions, which have been granted mandatory injunctions to include the
names of petitioners in the printing of ballots, are remanded to the Commission on Elections for
determination whether petitioners are qualified to register under the party-list system and to
participate in the 13 May 2013 party-list elections under the parameters prescribed in this
Decision. The Commission on Elections may conduct summary evidentiary hearings for this
purpose. This Decision is immediately executory.
SO ORDERED.
ANTONIO
Associate Justice

Citizenship
1935 Constitution
Section 1. The following
are
citizens
of
the
Philippines:
1. Those
who
are
citizens
of
the
Philippine Islands at
the time of the
adoption
of
this
Constitution.
2. Those born in the
Philippine Islands of
foreign
parents
who, before the
adoption
of
this

T.

1973 Constitution
Section 1. The following
are
citizens
of
the
Philippines:
1. Those
who
are
citizens
of
the
Philippines at the
time of the adoption
of this Constitution.
2. Those
whose
fathers and mothers
are citizens of the
Philippines.
3. Those who elect
Philippine

CARPIO

1987 Constitution
Section 1. The following
are
citizens
of
the
Philippines:
1. Those
who
are
citizens
of
the
Philippines at the
time of the adoption
of this Constitution;
2. Those
whose
fathers or mothers
are citizens of the
Philippines;
3. Those born before
January 17, 1973, of

Constitution,
had
been
elected
to
public office in the
Philippine Islands.
3. Those
whose
fathers are citizens
of the Philippines.
4. Those
whose
mothers are citizens
of the Philippines
and, upon reaching
the age of majority,
elect
Philippine
citizenship.
5. Those
who
are
naturalized
in
accordance
with
law.
Section
2.
Philippine
citizenship may be lost or
reacquired in the manner
provided by law.

citizenship pursuant
to the provisions of
the Constitution of
nineteen
hundred
and thirty-five.
4. Those
who
are
naturalized
in
accordance
with
law.
Section 2. A female citizen
of the Philippines who
marries an alien retains
her Philippine citizenship,
unless by her act or
omission she is deemed,
under the law, to have
renounced her citizenship.
Section
3.
Philippine
citizenship may be lost or
reacquired in the manner
provided by law.
Section 4. A natural-born
citizen is one who is a
citizen of the Philippines
from birth without having
to perform any act to
acquire or perfect his
Philippine citizenship.

Tecson v. Comelec
EN BANC
[G.R. No. 161434. March 3, 2004]

Filipino
mothers,
who elect Philippine
Citizenship
upon
reaching the age of
majority; and
4. Those
who
are
naturalized in the
accordance
with
law.
Section 2. Natural-born
citizens are those who are
citizens of the Philippines
from birth without having
to perform any act to
acquire or perfect their
Philippine
citizenship.
Those who elect Philippine
citizenship in accordance
with
paragraph
(3),
Section 1 hereof shall be
deemed
natural-born
citizens.
Section
3.
Philippine
citizenship may be lost or
reacquired in the manner
provided by law.
Section 4. Citizens of the
Philippines
who
marry
aliens shall retain their
citizenship, unless by their
act or omission they are
deemed, under the law to
have renounced it.
Section 5. Dual allegiance
of citizens is inimical to
the national interest and
shall be dealt with by law.

MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners, vs. The
COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a. FERNANDO POE, JR.)
and VICTORINO X. FORNIER, respondents.
[G.R. No. 161634. March 3, 2004]
ZOILO ANTONIO VELEZ, petitioner, vs. RONALD ALLAN KELLEY POE, a.k.a.
FERNANDO POE, JR., respondent.
[G. R. No. 161824. March 3, 2004]
VICTORINO X. FORNIER, petitioner, vs. HON. COMMISSION ON ELECTIONS and
RONALD ALLAN KELLEY POE, ALSO KNOWN AS FERNANDO POE JR., respondents.
DECISION
VITUG, J.:
Citizenship is a treasured right conferred on those whom the state believes are
deserving of the privilege. It is a precious heritage, as well as an inestimable
acquisition,[1] that cannot be taken lightly by anyone - either by those who enjoy it
or by those who dispute it.
Before the Court are three consolidated cases, all of which raise a single question of
profound importance to the nation. The issue of citizenship is brought up to
challenge the qualifications of a presidential candidate to hold the highest office of
the land. Our people are waiting for the judgment of the Court with bated breath.
Is Fernando Poe, Jr., the hero of silver screen, and now one of the main contenders
for the presidency, a natural-born Filipino or is he not?
The moment of introspection takes us face to face with Spanish and American
colonial roots and reminds us of the rich heritage of civil law and common law
traditions, the fusion resulting in a hybrid of laws and jurisprudence that could be no
less than distinctly Filipino.
Antecedent Case Settings
On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando
Poe, Jr. (hereinafter "FPJ"), filed his certificate of candidacy for the position of
President of the Republic of the Philippines under the Koalisyon ng Nagkakaisang
Pilipino (KNP) Party, in the forthcoming national elections. In his certificate of
candidacy, FPJ, representing himself to be a natural-born citizen of the Philippines,
stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his date of birth to be 20
August 1939 and his place of birth to be Manila.
Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier,
Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also
known as Fernando Poe, Jr., Respondents," initiated, on 09 January 2004, a petition
docketed SPA No. 04-003 before the Commission on Elections ("COMELEC") to
disqualify FPJ and to deny due course or to cancel his certificate of candidacy upon
the thesis that FPJ made a material misrepresentation in his certificate of candidacy
by claiming to be a natural-born Filipino citizen when in truth, according to Fornier,
his parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his
father, Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish

subject. Granting, petitioner asseverated, that Allan F. Poe was a Filipino citizen, he
could not have transmitted his Filipino citizenship to FPJ, the latter being an
illegitimate child of an alien mother. Petitioner based the allegation of the
illegitimate birth of respondent on two assertions - first, Allan F. Poe contracted a
prior marriage to a certain Paulita Gomez before his marriage to Bessie Kelley and,
second, even if no such prior marriage had existed, Allan F. Poe, married Bessie
Kelly only a year after the birth of respondent.
In the hearing before the Third Division of the COMELEC on 19 January 2004,
petitioner, in support of his claim, presented several documentary exhibits - 1) a
copy of the certificate of birth of FPJ, 2) a certified photocopy of an affidavit
executed in Spanish by Paulita Poe y Gomez attesting to her having filed a case for
bigamy and concubinage against the father of respondent, Allan F. Poe, after
discovering his bigamous relationship with Bessie Kelley, 3) an English translation of
the affidavit aforesaid, 4) a certified photocopy of the certificate of birth of Allan F.
Poe, 5) a certification issued by the Director of the Records Management and
Archives Office, attesting to the fact that there was no record in the National
Archives that a Lorenzo Poe or Lorenzo Pou resided or entered the Philippines before
1907, and 6) a certification from the Officer-In-Charge of the Archives Division of the
National Archives to the effect that no available information could be found in the
files of the National Archives regarding the birth of Allan F. Poe.
On his part, respondent, presented twenty-two documentary pieces of evidence, the
more significant ones being - a) a certification issued by Estrella M. Domingo of the
Archives Division of the National Archives that there appeared to be no available
information regarding the birth of Allan F. Poe in the registry of births for San Carlos,
Pangasinan, b) a certification issued by the Officer-In-Charge of the Archives
Division of the National Archives that no available information about the marriage of
Allan F. Poe and Paulita Gomez could be found, c) a certificate of birth of Ronald
Allan Poe, d) Original Certificate of Title No. P-2247 of the Registry of Deeds for the
Province of Pangasinan, in the name of Lorenzo Pou, e) copies of Tax Declaration No.
20844, No. 20643, No. 23477 and No. 23478 in the name of Lorenzo Pou, f) a copy
of the certificate of death of Lorenzo Pou, g) a copy of the purported marriage
contract between Fernando Pou and Bessie Kelley, and h) a certification issued by
the City Civil Registrar of San Carlos City, Pangasinan, stating that the records of
birth in the said office during the period of from 1900 until May 1946 were totally
destroyed during World War II.
On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit.
Three days later, or on 26 January 2004, Fornier filed his motion for reconsideration.
The motion was denied on 06 February 2004 by the COMELEC en banc. On 10
February 2004, petitioner assailed the decision of the COMELEC before this Court
conformably with Rule 64, in relation to Rule 65, of the Revised Rules of Civil
Procedure.
The petition, docketed G. R. No. 161824, likewise prayed for a
temporary restraining order, a writ of preliminary injunction or any other resolution
that would stay the finality and/or execution of the COMELEC resolutions.
The other petitions, later consolidated with G. R. No. 161824, would include G. R.
No. 161434, entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The
Commission on Elections, Ronald Allan Kelley Poe (a.k.a. Fernando Poe, Jr.), and

Victorino X. Fornier," and the other, docketed G. R. No. 161634, entitled "Zoilo
Antonio G. Velez, vs. Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.," both
challenging the jurisdiction of the COMELEC and asserting that, under Article VII,
Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had
original and exclusive jurisdiction to resolve the basic issue on the case.
Jurisdiction of the Court
In G. R. No. 161824
In seeking the disqualification of the candidacy of FPJ and to have the COMELEC
deny due course to or cancel FPJs certificate of candidacy for alleged
misrepresentation of a material fact (i.e., that FPJ was a natural-born citizen) before
the COMELEC, petitioner Fornier invoked Section 78 of the Omnibus Election Code
Section 78. Petition to deny due course 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
in consonance with the general powers of COMELEC expressed in Section 52 of the
Omnibus Election Code Section 52. Powers and functions of the Commission on Elections. In addition to
the powers and functions conferred upon it by the Constitution, the Commission
shall have exclusive charge of the enforcement and administration of all laws
relative to the conduct of elections for the purpose of ensuring free, orderly and
honest elections and in relation to Article 69 of the Omnibus Election Code which would authorize
"any interested party" to file a verified petition to deny or cancel the certificate of
candidacy of any nuisance candidate.
Decisions of the COMELEC on disqualification cases may be reviewed by the
Supreme Court per Rule 64[2] in an action for certiorari under Rule 65[3] of the
Revised Rules of Civil Procedure. Section 7, Article IX, of the 1987 Constitution also
reads
"Each Commission shall decide by a majority vote of all its Members any case or
matter brought before it within sixty days from the date of its submission for
decision or resolution. A case or matter is deemed submitted for decision or
resolution upon the filing of the last pleading, brief, or memorandum, required by
the rules of the Commission or by the Commission itself. Unless otherwise provided
by this Constitution or by law, any decision, order, or ruling of each Commission
may be brought to the Supreme Court on certiorari by the aggrieved party within
thirty days from receipt of a copy thereof."
Additionally, Section 1, Article VIII, of the same Constitution provides that judicial
power is vested in one Supreme Court and in such lower courts as may be
established by law which power includes the duty of the courts of justice to settle

actual controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly
elevated to, and could well be taken cognizance of by, this Court. A contrary view
could be a gross denial to our people of their fundamental right to be fully informed,
and to make a proper choice, on who could or should be elected to occupy the
highest government post in the land.
In G. R. No. 161434 and G. R. No. 161634
Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634, invoke
the provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in
assailing the jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003
and in urging the Supreme Court to instead take on the petitions they directly
instituted before it. The Constitutional provision cited reads:
"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating
to the election, returns, and qualifications of the President or Vice-President, and
may promulgate its rules for the purpose."
The provision is an innovation of the 1987 Constitution. The omission in the 1935
and the 1973 Constitution to designate any tribunal to be the sole judge of
presidential and vice-presidential contests, has constrained this Court to declare, in
Lopez vs. Roxas,[4] as not (being) justiciable controversies or disputes involving
contests on the elections, returns and qualifications of the President or VicePresident. The constitutional lapse prompted Congress, on 21 June 1957, to enact
Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral
Tribunal to Try, Hear and Decide Protests Contesting the Election of the PresidentElect and the Vice-President-Elect of the Philippines and Providing for the Manner of
Hearing the Same." Republic Act 1793 designated the Chief Justice and the
Associate Justices of the Supreme Court to be the members of the tribunal.
Although the subsequent adoption of the parliamentary form of government under
the 1973 Constitution might have implicitly affected Republic Act No. 1793, the
statutory set-up, nonetheless, would now be deemed revived under the present
Section 4, paragraph 7, of the 1987 Constitution.
Ordinary usage would characterize a "contest" in reference to a post-election
scenario. Election contests consist of either an election protest or a quo warranto
which, although two distinct remedies, would have one objective in view, i.e., to
dislodge the winning candidate from office. A perusal of the phraseology in Rule 12,
Rule 13, and Rule 14 of the "Rules of the Presidential Electoral Tribunal,"
promulgated by the Supreme Court en banc on 18 April 1992, would support this
premise Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to
the election, returns, and qualifications of the President or Vice-President of the
Philippines.

Rule 13. How Initiated. - An election contest is initiated by the filing of an election
protest or a petition for quo warranto against the President or Vice-President. An
election protest shall not include a petition for quo warranto. A petition for quo
warranto shall not include an election protest.
Rule 14. Election Protest. - Only the registered candidate for President or for VicePresident of the Philippines who received the second or third highest number of
votes may contest the election of the President or the Vice-President, as the case
may be, by filing a verified petition with the Clerk of the Presidential Electoral
Tribunal within thirty (30) days after the proclamation of the winner.
The rules categorically speak of the jurisdiction of the tribunal over contests relating
to the election, returns and qualifications of the "President" or "Vice-President", of
the Philippines, and not of "candidates" for President or Vice-President. A quo
warranto proceeding is generally defined as being an action against a person who
usurps, intrudes into, or unlawfully holds or exercises a public office.[5] In such
context, the election contest can only contemplate a post-election scenario. In Rule
14, only a registered candidate who would have received either the second or third
highest number of votes could file an election protest. This rule again presupposes
a post-election scenario.
It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4,
paragraph 7, of the 1987 Constitution, would not include cases directly brought
before it, questioning the qualifications of a candidate for the presidency or vicepresidency before the elections are held.
Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs.
Commission on Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio Velez
vs. Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." would have to be dismissed for
want of jurisdiction.
The Citizenship Issue
Now, to the basic issue; it should be helpful to first give a brief historical
background on the concept of citizenship.
Perhaps, the earliest understanding of citizenship was that given by Aristotle, who,
sometime in 384 to 322 B.C., described the "citizen" to refer to a man who shared in
the administration of justice and in the holding of an office.[6] Aristotle saw its
significance if only to determine the constituency of the "State," which he described
as being composed of such persons who would be adequate in number to achieve a
self-sufficient existence.[7] The concept grew to include one who would both govern
and be governed, for which qualifications like autonomy, judgment and loyalty could
be expected. Citizenship was seen to deal with rights and entitlements, on the one
hand, and with concomitant obligations, on the other.[8] In its ideal setting, a citizen
was active in public life and fundamentally willing to submit his private interests to
the general interest of society.

The concept of citizenship had undergone changes over the centuries. In the 18th
century, the concept was limited, by and large, to civil citizenship, which
established the rights necessary for individual freedom, such as rights to property,
personal liberty and justice.[9] Its meaning expanded during the 19th century to
include political citizenship, which encompassed the right to participate in the
exercise of political power.[10] The 20th century saw the next stage of the
development of social citizenship, which laid emphasis on the right of the citizen to
economic well-being and social security.[11] The idea of citizenship has gained
expression in the modern welfare state as it so developed in Western Europe. An
ongoing and final stage of development, in keeping with the rapidly shrinking global
village, might well be the internationalization of citizenship.[12]
The Local Setting - from Spanish
Times to the Present
There was no such term as "Philippine citizens" during the Spanish regime but
"subjects of Spain" or "Spanish subjects."[13] In church records, the natives were
called 'indios', denoting a low regard for the inhabitants of the archipelago. Spanish
laws on citizenship became highly codified during the 19th century but their sheer
number made it difficult to point to one comprehensive law. Not all of these
citizenship laws of Spain however, were made to apply to the Philippine Islands
except for those explicitly extended by Royal Decrees.[14]
Spanish laws on citizenship were traced back to the Novisima Recopilacion,
promulgated in Spain on 16 July 1805 but as to whether the law was extended to
the Philippines remained to be the subject of differing views among experts;[15]
however, three royal decrees were undisputably made applicable to Spaniards in
the Philippines - the Order de la Regencia of 14 August 1841,[16] the Royal Decree
of 23 August 1868 specifically defining the political status of children born in the
Philippine Islands,[17] and finally, the Ley Extranjera de Ultramar of 04 July 1870,
which was expressly made applicable to the Philippines by the Royal Decree of 13
July 1870.[18]
The Spanish Constitution of 1876 was never extended to the Philippine Islands
because of the express mandate of its Article 89, according to which the provisions
of the Ultramar among which this country was included, would be governed by
special laws.[19]
It was only the Civil Code of Spain, made effective in this jurisdiction on 18
December 1889, which came out with the first categorical enumeration of who were
Spanish citizens. (a)

Persons born in Spanish territory,

(b)
Children of a Spanish father or mother, even if they were born outside of
Spain,
(c)

Foreigners who have obtained naturalization papers,

(d)
Those who, without such papers, may have become domiciled inhabitants of
any town of the Monarchy.[20]
The year 1898 was another turning point in Philippine history. Already in the state
of decline as a superpower, Spain was forced to so cede her sole colony in the East
to an upcoming world power, the United States.
An accepted principle of
international law dictated that a change in sovereignty, while resulting in an
abrogation of all political laws then in force, would have no effect on civil laws,
which would remain virtually intact.
The Treaty of Paris was entered into on 10 December 1898 between Spain and the
United States.[21] Under Article IX of the treaty, the civil rights and political status
of the native inhabitants of the territories ceded to the United States would be
determined by its Congress "Spanish subjects, natives of the Peninsula, residing in the territory over which
Spain by the present treaty relinquishes or cedes her sovereignty may remain in
such territory or may remove therefrom, retaining in either event all their rights of
property, including the right to sell or dispose of such property or of its proceeds;
and they shall also have the right to carry on their industry, commerce, and
professions, being subject in respect thereof to such laws as are applicable to
foreigners. In case they remain in the territory they may preserve their allegiance
to the Crown of Spain by making, before a court of record, within a year from the
date of the exchange of ratifications of this treaty, a declaration of their decision to
preserve such allegiance; in default of which declaration they shall be held to have
renounced it and to have adopted the nationality of the territory in which they
reside.
Thus
"The civil rights and political status of the native inhabitants of the territories hereby
ceded to the United States shall be determined by the Congress."[22]
Upon the ratification of the treaty, and pending legislation by the United States
Congress on the subject, the native inhabitants of the Philippines ceased to be
Spanish subjects. Although they did not become American citizens, they, however,
also ceased to be "aliens" under American laws and were thus issued passports
describing them to be citizens of the Philippines entitled to the protection of the
United States.
The term "citizens of the Philippine Islands" appeared for the first time in the
Philippine Bill of 1902, also commonly referred to as the Philippine Organic Act of
1902, the first comprehensive legislation of the Congress of the United States on
the Philippines ".... that all inhabitants of the Philippine Islands continuing to reside therein, who
were Spanish subjects on the 11th day of April, 1891, and then resided in said
Islands, and their children born subsequent thereto, shall be deemed and held to be
citizens of the Philippine Islands and as such entitled to the protection of the United
States, except such as shall have elected to preserve their allegiance to the Crown

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

Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a
citizen of the Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11
April 1899, 2) residing in the Philippines on said date, and, 3) since that date, not a
citizen of some other country.
While there was, at one brief time, divergent views on whether or not jus soli was a
mode of acquiring citizenship, the 1935 Constitution brought to an end to any such
link with common law, by adopting, once and for all, jus sanguinis or blood
relationship as being the basis of Filipino citizenship Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines
(1) Those who are citizens of the Philippine Islands at the time of the adoption of
this Constitution
(2)
Those born in the Philippines Islands of foreign parents who, before the
adoption of this Constitution, had been elected to public office in the Philippine
Islands.
(3) Those whose fathers are citizens of the Philippines.
(4)
Those whose mothers are citizens of the Philippines and upon reaching the
age of majority, elect Philippine citizenship.
(5)

Those who are naturalized in accordance with law.

Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil
law provisions at the time, which provided that women would automatically lose
their Filipino citizenship and acquire that of their foreign husbands, resulted in
discriminatory situations that effectively incapacitated the women from transmitting
their Filipino citizenship to their legitimate children and required illegitimate children
of Filipino mothers to still elect Filipino citizenship upon reaching the age of majority.
Seeking to correct this anomaly, as well as fully cognizant of the newly found status
of Filipino women as equals to men, the framers of the 1973 Constitution crafted the
provisions of the new Constitution on citizenship to reflect such concerns Section 1, Article III, 1973 Constitution - The following are citizens of the
Philippines:
(1)
Those who are citizens of the Philippines at the time of the adoption of this
Constitution.
(2) Those whose fathers or mothers are citizens of the Philippines.
(3)
Those who elect Philippine citizenship pursuant to the provisions of the
Constitution of nineteen hundred and thirty-five.
(4)

Those who are naturalized in accordance with law.

For good measure, Section 2 of the same article also further provided that
"A female citizen of the Philippines who marries an alien retains her Philippine
citizenship, unless by her act or omission she is deemed, under the law to have
renounced her citizenship."
The 1987 Constitution generally adopted the provisions of the 1973 Constitution,
except for subsection (3) thereof that aimed to correct the irregular situation
generated by the questionable proviso in the 1935 Constitution.
Section I, Article IV, 1987 Constitution now provides:
The following are citizens of the Philippines:
(1)
Those who are citizens of the Philippines at the time of the adoption of this
Constitution.
(2)

Those whose fathers or mothers are citizens of the Philippines.

(3)
Those born before January 17, 1973 of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and
(4)

Those who are naturalized in accordance with law.

The Case Of FPJ

Section 2, Article VII, of the 1987 Constitution expresses:
"No person may be elected President unless he is a natural-born citizen of the
Philippines, a registered voter, able to read and write, at least forty years of age on
the day of the election, and a resident of the Philippines for at least ten years
immediately preceding such election."
The term "natural-born citizens," is defined to include "those who are citizens of the
Philippines from birth without having to perform any act to acquire or perfect their
Philippine citizenship."[27]
The date, month and year of birth of FPJ appeared to be 20 August 1939 during the
regime of the 1935 Constitution. Through its history, four modes of acquiring
citizenship - naturalization, jus soli, res judicata and jus sanguinis[28] had been in
vogue. Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a
natural-born citizen of the Philippines.
Jus soli, per Roa vs. Collector of
Customs[29] (1912), did not last long. With the adoption of the 1935 Constitution
and the reversal of Roa in Tan Chong vs. Secretary of Labor[30] (1947), jus
sanguinis or blood relationship would now become the primary basis of citizenship
by birth.
Documentary evidence adduced by petitioner would tend to indicate that the
earliest established direct ascendant of FPJ was his paternal grandfather Lorenzo
Pou, married to Marta Reyes, the father of Allan F. Poe. While the record of birth of

Lorenzo Pou had not been presented in evidence, his death certificate, however,
identified him to be a Filipino, a resident of San Carlos, Pangasinan, and 84 years old
at the time of his death on 11 September 1954. The certificate of birth of the father
of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Espaol father,
Lorenzo Pou, and a mestiza Espaol mother, Marta Reyes. Introduced by petitioner
was an uncertified copy of a supposed certificate of the alleged marriage of Allan
F. Poe and Paulita Gomez on 05 July 1936. The marriage certificate of Allan F. Poe
and Bessie Kelley reflected the date of their marriage to be on 16 September 1940.
In the same certificate, Allan F. Poe was stated to be twenty-five years old,
unmarried, and a Filipino citizen, and Bessie Kelley to be twenty-two years old,
unmarried, and an American citizen. The birth certificate of FPJ, would disclose that
he was born on 20 August 1939 to Allan F. Poe, a Filipino, twenty-four years old,
married to Bessie Kelly, an American citizen, twenty-one years old and married.
Considering the reservations made by the parties on the veracity of some of the
entries on the birth certificate of respondent and the marriage certificate of his
parents, the only conclusions that could be drawn with some degree of certainty
from the documents would be that 1.

The parents of FPJ were Allan F. Poe and Bessie Kelley;

2.

FPJ was born to them on 20 August 1939;

3.
Allan F. Poe and Bessie Kelley were married to each other on 16 September,
1940;
4.
5.
old.

The father of Allan F. Poe was Lorenzo Poe; and

At the time of his death on 11 September 1954, Lorenzo Poe was 84 years

Would the above facts be sufficient or insufficient to establish the fact that FPJ is a
natural-born Filipino citizen? The marriage certificate of Allan F. Poe and Bessie
Kelley, the birth certificate of FPJ, and the death certificate of Lorenzo Pou are
documents of public record in the custody of a public officer. The documents have
been submitted in evidence by both contending parties during the proceedings
before the COMELEC.
The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for
respondent. The marriage certificate of Allan F. Poe to Bessie Kelley was submitted
as Exhibit "21" for respondent. The death certificate of Lorenzo Pou was submitted
by respondent as his Exhibit "5." While the last two documents were submitted in
evidence for respondent, the admissibility thereof, particularly in reference to the
facts which they purported to show, i.e., the marriage certificate in relation to the
date of marriage of Allan F. Poe to Bessie Kelley and the death certificate relative to
the death of Lorenzo Pou on 11 September 1954 in San Carlos, Pangasinan, were all
admitted by petitioner, who had utilized those material statements in his argument.
All three documents were certified true copies of the originals.
Section 3, Rule 130, Rules of Court states that -

Original document must be produced; exceptions. - When the subject of inquiry is

the contents of a document, no evidence shall be admissible other than the original
document itself, except in the following cases:
x x x

xxx

xxx

(d)
When the original is a public record in the custody of a public office or is
recorded in a public office.
Being public documents, the death certificate of Lorenzo Pou, the marriage
certificate of Allan F. Poe and Bessie Kelly, and the birth certificate of FPJ, constitute
prima facie proof of their contents. Section 44, Rule 130, of the Rules of Court
provides:
Entries in official records. Entries in official records made in the performance of his
duty by a public officer of the Philippines, or by a person in the performance of a
duty specially enjoined by law, are prima facie evidence of the facts therein stated.
The trustworthiness of public documents and the value given to the entries made
therein could be grounded on 1) the sense of official duty in the preparation of the
statement made, 2) the penalty which is usually affixed to a breach of that duty, 3)
the routine and disinterested origin of most such statements, and 4) the publicity of
record which makes more likely the prior exposure of such errors as might have
occurred.[31]
The death certificate of Lorenzo Pou would indicate that he died on 11 September
1954, at the age of 84 years, in San Carlos, Pangasinan. It could thus be assumed
that Lorenzo Pou was born sometime in the year 1870 when the Philippines was still
a colony of Spain. Petitioner would argue that Lorenzo Pou was not in the
Philippines during the crucial period of from 1898 to 1902 considering that there
was no existing record about such fact in the Records Management and Archives
Office. Petitioner, however, likewise failed to show that Lorenzo Pou was at any
other place during the same period. In his death certificate, the residence of
Lorenzo Pou was stated to be San Carlos, Pangasinan. In the absence of any
evidence to the contrary, it should be sound to conclude, or at least to presume,
that the place of residence of a person at the time of his death was also his
residence before death. It would be extremely doubtful if the Records Management
and Archives Office would have had complete records of all residents of the
Philippines from 1898 to 1902.
Proof of Paternity and Filiation
Under Civil Law.
Petitioner submits, in any case, that in establishing filiation (relationship or civil
status of the child to the father [or mother]) or paternity (relationship or civil status
of the father to the child) of an illegitimate child, FPJ evidently being an illegitimate
son according to petitioner, the mandatory rules under civil law must be used.

Under the Civil Code of Spain, which was in force in the Philippines from 08
December 1889 up until the day prior to 30 August 1950 when the Civil Code of the
Philippines took effect, acknowledgment was required to establish filiation or
paternity. Acknowledgment was either judicial (compulsory) or voluntary. Judicial or
compulsory acknowledgment was possible only if done during the lifetime of the
putative parent; voluntary acknowledgment could only be had in a record of birth, a
will, or a public document.[32] Complementary to the new code was Act No. 3753 or
the Civil Registry Law expressing in Section 5 thereof, that In case of an illegitimate child, the birth certificate shall be signed and sworn to
jointly by the parents of the infant or only by the mother if the father refuses. In the
latter case, it shall not be permissible to state or reveal in the document the name
of the father who refuses to acknowledge the child, or to give therein any
information by which such father could be identified.
In order that the birth certificate could then be utilized to prove voluntary
acknowledgment of filiation or paternity, the certificate was required to be signed or
sworn to by the father. The failure of such requirement rendered the same useless
as being an authoritative document of recognition.[33] In Mendoza vs. Mella,[34]
the Court ruled "Since Rodolfo was born in 1935, after the registry law was enacted, the question
here really is whether or not his birth certificate (Exhibit 1), which is merely a
certified copy of the registry record, may be relied upon as sufficient proof of his
having been voluntarily recognized. No such reliance, in our judgment, may be
placed upon it. While it contains the names of both parents, there is no showing
that they signed the original, let alone swore to its contents as required in Section 5
of Act No. 3753. For all that might have happened, it was not even they or either of
them who furnished the data to be entered in the civil register. Petitioners say that
in any event the birth certificate is in the nature of a public document wherein
voluntary recognition of a natural child may also be made, according to the same
Article 131. True enough, but in such a case, there must be a clear statement in the
document that the parent recognizes the child as his or her own."
In the birth certificate of respondent FPJ, presented by both parties, nowhere in the
document was the signature of Allan F. Poe found. There being no will apparently
executed, or at least shown to have been executed, by decedent Allan F. Poe, the
only other proof of voluntary recognition remained to be "some other public
document." In Pareja vs. Pareja,[35] this Court defined what could constitute such a
document as proof of voluntary acknowledgment:
"Under the Spanish Civil Code there are two classes of public documents, those
executed by private individuals which must be authenticated by notaries, and those
issued by competent public officials by reason of their office. The public document
pointed out in Article 131 as one of the means by which recognition may be made
belongs to the first class."
Let us leave it at that for the moment.

The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate

children into voluntary, legal or compulsory. Voluntary recognition was required to
be expressedly made in a record of birth, a will, a statement before a court of record
or in any authentic writing. Legal acknowledgment took place in favor of full blood
brothers and sisters of an illegitimate child who was recognized or judicially
declared as natural. Compulsory acknowledgment could be demanded generally in
cases when the child had in his favor any evidence to prove filiation. Unlike an
action to claim legitimacy which would last during the lifetime of the child, and
might pass exceptionally to the heirs of the child, an action to claim
acknowledgment, however, could only be brought during the lifetime of the
presumed parent.
Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic
writing," so as to be an authentic writing for purposes of voluntary recognition,
simply as being a genuine or indubitable writing of the father. The term would
include a public instrument (one duly acknowledged before a notary public or other
competent official) or a private writing admitted by the father to be his.
The Family Code has further liberalized the rules; Article 172, Article 173, and
Article 175 provide:
Art. 172.
following:
(1)

The filiation of legitimate children is established by any of the

The record of birth appearing in the civil register or a final judgment; or

(2)
An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved
by:
(1)

The open and continuous possession of the status of a legitimate child; or

(2)

Any other means allowed by the Rules of Court and special laws.

Art. 173.
The action to claim legitimacy may be brought by the child during his
or her lifetime and shall be transmitted to the heirs should the child die during
minority or in a state of insanity. In these cases, the heirs shall have a period of five
years within which to institute the action.
The action already commenced by the child shall survive notwithstanding the
death of either or both of the parties.
x x x

xxx

x x x.

Art. 175. Illegitimate children may establish their illegitimate filiation in the same
way and on the same, evidence as legitimate children.

The action must be brought within the same period specified in Article 173, except
when the action is based on the second paragraph of Article 172, in which case the
action may be brought during the lifetime of the alleged parent.
The provisions of the Family Code are retroactively applied; Article 256 of the code
reads:
"Art. 256.
This Code shall have retroactive effect insofar as it does not prejudice
or impair vested or acquired rights in accordance with the Civil Code or other laws.
Thus, in Vda. de Sy-Quia vs. Court of Appeals,[36] the Court has ruled:
"We hold that whether Jose was a voluntarily recognized natural child should be
decided under Article 278 of the Civil Code of the Philippines. Article 2260 of that
Code provides that 'the voluntary recognition of a natural child shall take place
according to this Code, even if the child was born before the effectivity of this body
of laws' or before August 30, 1950. Hence, Article 278 may be given retroactive
effect."
It should be apparent that the growing trend to liberalize the acknowledgment or
recognition of illegitimate children is an attempt to break away from the traditional
idea of keeping well apart legitimate and non-legitimate relationships within the
family in favor of the greater interest and welfare of the child. The provisions are
intended to merely govern the private and personal affairs of the family. There is
little, if any, to indicate that the legitimate or illegitimate civil status of the
individual would also affect his political rights or, in general, his relationship to the
State. While, indeed, provisions on "citizenship" could be found in the Civil Code,
such provisions must be taken in the context of private relations, the domain of civil
law; particularly "Civil Law is that branch of law which has for its double purpose the organization of
the family and the regulation of property. It has thus [been] defined as the mass of
precepts which determine and regulate the relations of assistance, authority and
obedience among members of a family, and those which exist among members of a
society for the protection of private interests."[37]
In Yaez de Barnuevo vs. Fuster,[38] the Court has held:
"In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating to
family rights and duties, or to the status, condition and legal capacity of persons,
govern Spaniards although they reside in a foreign country; that, in consequence,
'all questions of a civil nature, such as those dealing with the validity or nullity of
the matrimonial bond, the domicile of the husband and wife, their support, as
between them, the separation of their properties, the rules governing property,
marital authority, division of conjugal property, the classification of their property,
legal causes for divorce, the extent of the latter, the authority to decree it, and, in
general, the civil effects of marriage and divorce upon the persons and properties of
the spouses, are questions that are governed exclusively by the national law of the
husband and wife."

The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in

Article 15 of the Civil Code, stating that "Laws relating to family rights and duties, or to the status, condition and legal
capacity of persons are binding upon citizens of the Philippines, even though living
abroad" that explains the need to incorporate in the code a reiteration of the Constitutional
provisions on citizenship. Similarly, citizenship is significant in civil relationships
found in different parts of the Civil Code,[39] such as on successional rights and
family relations.[40]
In adoption, for instance, an adopted child would be
considered the child of his adoptive parents and accorded the same rights as their
legitimate child but such legal fiction extended only to define his rights under civil
law[41] and not his political status.
Civil law provisions point to an obvious bias against illegitimacy. This discriminatory
attitude may be traced to the Spanish family and property laws, which, while
defining proprietary and successional rights of members of the family, provided
distinctions in the rights of legitimate and illegitimate children. In the monarchial
set-up of old Spain, the distribution and inheritance of titles and wealth were strictly
according to bloodlines and the concern to keep these bloodlines uncontaminated
by foreign blood was paramount.
These distinctions between legitimacy and illegitimacy were codified in the Spanish
Civil Code, and the invidious discrimination survived when the Spanish Civil Code
became the primary source of our own Civil Code. Such distinction, however,
remains and should remain only in the sphere of civil law and not unduly impede or
impinge on the domain of political law.
The proof of filiation or paternity for purposes of determining his citizenship status
should thus be deemed independent from and not inextricably tied up with that
prescribed for civil law purposes. The Civil Code or Family Code provisions on proof
of filiation or paternity, although good law, do not have preclusive effects on
matters alien to personal and family relations. The ordinary rules on evidence could
well and should govern. For instance, the matter about pedigree is not necessarily
precluded from being applicable by the Civil Code or Family Code provisions.
Section 39, Rule 130, of the Rules of Court provides Act or Declaration about pedigree. The act or declaration of a person deceased, or
unable to testify, in respect to the pedigree of another person related to him by
birth or marriage, may be received in evidence where it occurred before the
controversy, and the relationship between the two persons is shown by evidence
other than such act or declaration. The word `pedigree includes relationship,
family genealogy, birth, marriage, death, the dates when and the places where
these facts occurred, and the names of the relatives. It embraces also facts of
family history intimately connected with pedigree.
For the above rule to apply, it would be necessary that (a) the declarant is already
dead or unable to testify, (b) the pedigree of a person must be at issue, (c) the

declarant must be a relative of the person whose pedigree is in question, (d)

declaration must be made before the controversy has occurred, and (e) the
relationship between the declarant and the person whose pedigree is in question
must be shown by evidence other than such act or declaration.
Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of
Bessie Kelley Poe submitted as Exhibit 20 before the COMELEC, might be accepted
to prove the acts of Allan F. Poe, recognizing his own paternal relationship with FPJ,
i.e, living together with Bessie Kelley and his children (including respondent FPJ) in
one house, and as one family "I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in
Stockton, California, U.S.A., after being sworn in accordance with law do hereby
declare that:
1.

I am the sister of the late Bessie Kelley Poe.

2.

Bessie Kelley Poe was the wife of Fernando Poe, Sr.

3.
Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more
popularly known in the Philippines as `Fernando Poe, Jr., or `FPJ.
4.
Ronald Allan Poe `FPJ was born on August 20, 1939 at St. Luke's Hospital,
Magdalena Street, Manila.
x x x

xxx

xxx

7.
Fernando Poe Sr., and my sister Bessie, met and became engaged while they
were students at the University of the Philippines in 1936. I was also introduced to
Fernando Poe, Sr., by my sister that same year.
8.

Fernando Poe, Sr., and my sister Bessie had their first child in 1938.

9.
Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth,
Ronald, Allan and Fernando II, and myself lived together with our mother at our
family's house on Dakota St. (now Jorge Bocobo St.), Malate until the liberation of
Manila in 1945, except for some months between 1943-1944.
10.
Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more
children after Ronald Allan Poe.
x x x

xxx

xxx

18. I am executing this Declaration to attest to the fact that my nephew, Ronald
Allan Poe is a natural born Filipino, and that he is the legitimate child of Fernando
Poe, Sr.
Done in City of Stockton, California, U.S.A., this 12th day of January 2004.
Ruby Kelley Mangahas

Declarant
DNA Testing
In case proof of filiation or paternity would be unlikely to satisfactorily establish or
would be difficult to obtain, DNA testing, which examines genetic codes obtained
from body cells of the illegitimate child and any physical residue of the long dead
parent could be resorted to. A positive match would clear up filiation or paternity.
In Tijing vs. Court of Appeals,[42] this Court has acknowledged the strong weight of
DNA testing "Parentage will still be resolved using conventional methods unless we adopt the
modern and scientific ways available. Fortunately, we have now the facility and
expertise in using DNA test for identification and parentage testing. The University
of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis
Laboratory has now the capability to conduct DNA typing using short tandem repeat
(STR) analysis. The analysis is based on the fact that the DNA of a child/person has
two (2) copies, one copy from the mother and the other from the father. The DNA
from the mother, the alleged father and the child are analyzed to establish
parentage. Of course, being a novel scientific technique, the use of DNA test as
evidence is still open to challenge. Eventually, as the appropriate case comes,
courts should not hesitate to rule on the admissibility of DNA evidence. For it was
said, that courts should apply the results of science when competently obtained in
aid of situations presented, since to reject said result is to deny progress."
Petitioners Argument For
Jurisprudential Conclusiveness
Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not
have transmitted his citizenship to respondent FPJ, the latter being an illegitimate
child. According to petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe, on
July 5, 1936, contracted marriage with a certain Paulita Gomez, making his
subsequent marriage to Bessie Kelley bigamous and respondent FPJ an illegitimate
child. The veracity of the supposed certificate of marriage between Allan F. Poe and
Paulita Gomez could be most doubtful at best. But the documentary evidence
introduced by no less than respondent himself, consisting of a birth certificate of
respondent and a marriage certificate of his parents showed that FPJ was born on 20
August 1939 to a Filipino father and an American mother who were married to each
other a year later, or on 16 September 1940. Birth to unmarried parents would
make FPJ an illegitimate child. Petitioner contended that as an illegitimate child, FPJ
so followed the citizenship of his mother, Bessie Kelley, an American citizen, basing
his stand on the ruling of this Court in Morano vs. Vivo,[43] citing Chiongbian vs. de
Leon[44] and Serra vs. Republic.[45]
On the above score, the disquisition made by amicus curiae Joaquin G. Bernas, SJ, is
most convincing; he states "We must analyze these cases and ask what the lis mota was in each of them. If
the pronouncement of the Court on jus sanguinis was on the lis mota, the

pronouncement would be a decision constituting doctrine under the rule of stare

decisis.
But if the pronouncement was irrelevant to the lis mota, the
pronouncement would not be a decision but a mere obiter dictum which did not
establish doctrine. I therefore invite the Court to look closely into these cases.
First, Morano vs. Vivo. The case was not about an illegitimate child of a Filipino
father. It was about a stepson of a Filipino, a stepson who was the child of a
Chinese mother and a Chinese father. The issue was whether the stepson followed
the naturalization of the stepfather. Nothing about jus sanguinis there. The stepson
did not have the blood of the naturalized stepfather.
Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a
Filipino father. It was about a legitimate son of a father who had become Filipino by
election to public office before the 1935 Constitution pursuant to Article IV, Section
1(2) of the 1935 Constitution. No one was illegitimate here.
Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino
father. Serra was an illegitimate child of a Chinese father and a Filipino mother. The
issue was whether one who was already a Filipino because of his mother who still
needed to be naturalized. There is nothing there about invidious jus sanguinis.
Finally, Paa vs. Chan.[46] This is a more complicated case. The case was about
the citizenship of Quintin Chan who was the son of Leoncio Chan. Quintin Chan
claimed that his father, Leoncio, was the illegitimate son of a Chinese father and a
Filipino mother. Quintin therefore argued that he got his citizenship from Leoncio,
his father. But the Supreme Court said that there was no valid proof that Leoncio
was in fact the son of a Filipina mother. The Court therefore concluded that Leoncio
was not Filipino. If Leoncio was not Filipino, neither was his son Quintin. Quintin
therefore was not only not a natural-born Filipino but was not even a Filipino.
The Court should have stopped there. But instead it followed with an obiter
dictum. The Court said obiter that even if Leoncio, Quintin's father, were Filipino,
Quintin would not be Filipino because Quintin was illegitimate. This statement
about Quintin, based on a contrary to fact assumption, was absolutely unnecessary
for the case. x x x It was obiter dictum, pure and simple, simply repeating the
obiter dictum in Morano vs. Vivo.
x x x

xxx

xxx

"Aside from the fact that such a pronouncement would have no textual foundation
in the Constitution, it would also violate the equal protection clause of the
Constitution not once but twice. First, it would make an illegitimate distinction
between a legitimate child and an illegitimate child, and second, it would make an
illegitimate distinction between the illegitimate child of a Filipino father and the
illegitimate child of a Filipino mother.
The doctrine on constitutionally allowable distinctions was established long ago by
People vs. Cayat.[47] I would grant that the distinction between legitimate children
and illegitimate children rests on real differences. x x x But real differences alone

do not justify invidious distinction. Real differences may justify distinction for one
purpose but not for another purpose.
x x x What is the relevance of legitimacy or illegitimacy to elective public service?
What possible state interest can there be for disqualifying an illegitimate child from
becoming a public officer. It was not the fault of the child that his parents had illicit
liaison. Why deprive the child of the fullness of political rights for no fault of his
own? To disqualify an illegitimate child from holding an important public office is to
punish him for the indiscretion of his parents. There is neither justice nor rationality
in that. And if there is neither justice nor rationality in the distinction, then the
distinction transgresses the equal protection clause and must be reprobated.
The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this
Court), Professor Ruben Balane and Dean Martin Magallona, at bottom, have
expressed similar views. The thesis of petitioner, unfortunately hinging solely on
pure obiter dicta, should indeed fail.
Where jurisprudence regarded an illegitimate child as taking after the citizenship of
its mother, it did so for the benefit the child. It was to ensure a Filipino nationality
for the illegitimate child of an alien father in line with the assumption that the
mother had custody, would exercise parental authority and had the duty to support
her illegitimate child. It was to help the child, not to prejudice or discriminate
against him.
The fact of the matter perhaps the most significant consideration is that the
1935 Constitution, the fundamental law prevailing on the day, month and year of
birth of respondent FPJ, can never be more explicit than it is. Providing neither
conditions nor distinctions, the Constitution states that among the citizens of the
Philippines are those whose fathers are citizens of the Philippines. There utterly is
no cogent justification to prescribe conditions or distinctions where there clearly are
none provided.
In Sum
(1)
The Court, in the exercise of its power of judicial review, possesses
jurisdiction over the petition in G. R. No. 161824, filed under Rule 64, in relation to
Rule 65, of the Revised Rules of Civil Procedure. G.R. No. 161824 assails the
resolution of the COMELEC for alleged grave abuse of discretion in dismissing, for
lack of merit, the petition in SPA No. 04-003 which has prayed for the
disqualification of respondent FPJ from running for the position of President in the
10th May 2004 national elections on the contention that FPJ has committed material
representation in his certificate of candidacy by representing himself to be a
natural-born citizen of the Philippines.
(2)
The Court must dismiss, for lack of jurisdiction and prematurity, the
petitions in G. R. No. 161434 and No. 161634 both having been directly elevated to
this Court in the latters capacity as the only tribunal to resolve a presidential and
vice-presidential election contest under the Constitution. Evidently, the primary
jurisdiction of the Court can directly be invoked only after, not before, the elections
are held.

(3)
In ascertaining, in G.R. No. 161824, whether grave abuse of discretion
has been committed by the COMELEC, it is necessary to take on the matter of
whether or not respondent FPJ is a natural-born citizen, which, in turn, depended on
whether or not the father of respondent, Allan F. Poe, would have himself been a
Filipino citizen and, in the affirmative, whether or not the alleged illegitimacy of
respondent prevents him from taking after the Filipino citizenship of his putative
father. Any conclusion on the Filipino citizenship of Lorenzo Pou could only be drawn
from the presumption that having died in 1954 at 84 years old, Lorenzo would have
been born sometime in the year 1870, when the Philippines was under Spanish rule,
and that San Carlos, Pangasinan, his place of residence upon his death in 1954, in
the absence of any other evidence, could have well been his place of residence
before death, such that Lorenzo Pou would have benefited from the en masse
Filipinization that the Philippine Bill had effected in 1902. That citizenship (of
Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe, father of
respondent FPJ. The 1935 Constitution, during which regime respondent FPJ has
seen first light, confers citizenship to all persons whose fathers are Filipino citizens
regardless of whether such children are legitimate or illegitimate.
(4)
But while the totality of the evidence may not establish conclusively that
respondent FPJ is a natural-born citizen of the Philippines, the evidence on hand still
would preponderate in his favor enough to hold that he cannot be held guilty of
having made a material misrepresentation in his certificate of candidacy in violation
of Section 78, in relation to Section 74, of the Omnibus Election Code. Petitioner has
utterly failed to substantiate his case before the Court, notwithstanding the ample
opportunity given to the parties to present their position and evidence, and to prove
whether or not there has been material misrepresentation, which, as so ruled in
Romualdez-Marcos vs. COMELEC,[48] must not only be material, but also deliberate
and willful.
WHEREFORE, the Court RESOLVES to DISMISS
1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr.,
Petitioners, versus Commission on Elections, Ronald Allan Kelley Poe (a.k.a.
"Fernando Poe, Jr.,) and Victorino X. Fornier, Respondents," and G. R. No. 161634,
entitled "Zoilo Antonio Velez, Petitioner, versus Ronald Allan Kelley Poe, a.k.a.
Fernando Poe, Jr., Respondent," for want of jurisdiction.
2.
G. R. No. 161824, entitled Victorino X. Fornier, Petitioner, versus Hon.
Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe,
Jr., for failure to show grave abuse of discretion on the part of respondent
Commission on Elections in dismissing the petition in SPA No. 04-003.
No Costs.
SO ORDERED.
Davide, Jr., C.J., see separate opinion, concurring.
Puno, J., on leave but was allowed to vote; see separate opinion.

Panganiban, J., on official leave; allowed to vote but did not send his vote on the
matter.
Quisumbing, J., joins the dissent of Justices Tinga and Morales; case should have
been remanded.
Ynares-Santiago, J., concurs and also with J. Punos separate opinion.
Sandoval-Gutierrez, J., concurs, please see separate opinion.
Carpio, J., see dissenting opinion.
Austria-Martinez, J., concurs, please see separate opinion.
Corona, J., joins the dissenting opinion of Justice Morales.
Carpio-Morales, J., see dissenting opinion.
Callejo, Sr., J., please see concurring opinion.
Azcuna, J., concurs in a separate opinion.
Tinga, J., dissents per separate opinion.

Moya Lim Yao v. Commissioner of Immigration

G.R. No. L-21289 October 4, 1971
MOY YA LIM YAO alias EDILBERTO AGUINALDO LIM and LAU YUEN YEUNG,
petitioners-appellants,
vs.
THE COMMISSIONER OF IMMIGRATION, respondent-appellee.
Aruego, Mamaril & Associates for petitioners-appellants.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Frine' C.
Zaballero and Solicitor Sumilang V. Bernardo for respondent-appellee.

BARREDO, J.:
Appeal from the following decision of the Court of First Instance of Manila in its Civil
Case No. 49705 entitled Moy Ya Lim Yao, etc., et al. vs. The Commissioner of
Immigration which, brief as it is, sufficiently depicts the factual setting of and the
fundamental issues involved in this case thus:
In the instant case, petitioners seek the issuance of a writ of injunction against the
Commissioner of Immigration, "restraining the latter and/or his authorized
representative from ordering plaintiff Lau Yuen Yeung to leave the Philippines and
causing her arrest and deportation and the confiscation of her bond, upon her
failure to do so."
The prayer for preliminary injunction embodied in the complaint, having been
denied, the case was heard on the merits and the parties submitted their respective
evidence.
The facts of the case, as substantially and correctly stated by the Solicitor General
are these:

On February 8, 1961, Lau Yuen Yeung applied for a passport visa to enter the
Philippines as a non-immigrant. In the interrogation made in connection with her
application for a temporary visitor's visa to enter the Philippines, she stated that
she was a Chinese residing at Kowloon, Hongkong, and that she desired to take a
pleasure trip to the Philippines to visit her great (grand) uncle Lau Ching Ping for a
period of one month (Exhibits "l," "1-a," and "2"). She was permitted to come into
the Philippines on March 13, 1961, and was permitted to stay for a period of one
month which would expire on April 13, 1961. On the date of her arrival, Asher Y,
Cheng filed a bond in the amount of P1,000.00 to undertake, among others that said
Lau Yuen Yeung would actually depart from the Philippines on or before the
expiration of her authorized period of stay in this country or within the period as in
his discretion the Commissioner of Immigration or his authorized representative
might properly allow. After repeated extensions, petitioner Lau Yuen Yeung was
allowed to stay in the Philippines up to February 13, 1962 (Exhibit "4"). On January
25, 1962, she contracted marriage with Moy Ya Lim Yao alias Edilberto Aguinaldo
Lim an alleged Filipino citizen. Because of the contemplated action of respondent to
confiscate her bond and order her arrest and immediate deportation, after the
expiration of her authorized stay, she brought this action for injunction with
preliminary injunction. At the hearing which took place one and a half years after
her arrival, it was admitted that petitioner Lau Yuen Yeung could not write either
English or Tagalog. Except for a few words, she could not speak either English or
Tagalog. She could not name any Filipino neighbor, with a Filipino name except one,
Rosa. She did not know the names of her brothers-in-law, or sisters-in-law.
Under the facts unfolded above, the Court is of the considered opinion, and so
holds, that the instant petition for injunction cannot be sustained for the same
reason as set forth in the Order of this Court, dated March 19, 1962, the pertinent
portions of which read:
First, Section 15 of the Revised Naturalization Law provides:
Effect of the naturalization on wife and children. Any woman who is now or may
hereafter be married to a citizen of the Philippines, and who might herself be
lawfully naturalized shall be deemed a citizen of the Philippines.
The above-quoted provision is clear and its import unequivocal and hence it should
be held to mean what it plainly and explicitly expresses in unmistakable terms. The
clause "who might herself be lawfully naturalized" incontestably implies that an
alien woman may be deemed a citizen of the Philippines by virtue of her marriage
to a Filipino citizen only if she possesses all the qualifications and none of the
disqualifications specified in the law, because these are the explicit requisites
provided by law for an alien to be naturalized. (Lee Suan Ay, Alberto Tan and Lee
Chiao vs. Emilio Galang, etc., G. R. No. L-11855). However, from the allegation of
paragraph 3 of the complaint, to wit:
3.
That plaintiff Lau Yuen Yeung, Chinese by birth, who might herself be lawfully
naturalized as a Filipino citizen (not being disqualified to become such by
naturalization), is a Filipino citizen by virtue of her marriage on January 25, 1962 to

plaintiff MOY YA LIM YAO alias EDILBERTO AGUINALDO LIM, under the Naturalization
Laws of the Philippines.
it can be deduced beyond debate that petitioner Lau Yuen Yeung while claiming not
to be disqualified, does not and cannot allege that she possesses all the
qualifications to be naturalized, naturally because, having been admitted as a
temporary visitor only on March 13, 1961, it is obvious at once that she lacks at
least, the requisite length of residence in the Philippines (Revised Naturalization
Law, Sec. 2, Case No. 2, Sec. 3, Case No. 3).
Were if the intention of the law that the alien woman, to be deemed a citizen of the
Philippines by virtue of marriage to a Filipino citizen, need only be not disqualified
under the Naturalization Law, it would have been worded "and who herself is not
disqualified to become a citizen of the Philippines."
Second, Lau Yuen Yeung, a temporary Chinese woman visitor, whose authorized
stay in the Philippines, after repeated extensions thereof, was to expire last
February 28, 1962, having married her co-plaintiff only on January 25, 1962, or just
a little over one month before the expiry date of her stay, it is evident that said
marriage was effected merely for convenience to defeat or avoid her then
impending compulsory departure, not to say deportation. This cannot be permitted.
Third, as the Solicitor General has well stated:
5.
That petitioner Lau Yuen Yeung, having been admitted as a temporary alien
visitor on the strength of a deliberate and voluntary representation that she will
enter and stay only for a period of one month and thereby secured a visa, cannot go
back on her representation to stay permanently without first departing from the
Philippines as she had promised. (Chung Tiao Bing, et al. vs. Commissioner of
Immigration, G. R. No. L-9966, September 29, 1956; Ong Se Lun vs. Board of
Commissioners, G. R. No. L-6017, September 16, 1954; Sec. 9, last par., Phil.
Immigration Law).
The aforequoted argument of the Solicitor General is well buttressed not only by the
decided cases of the Supreme Court on the point mentioned above, but also on the
very provisions of Section 9, sub-paragraph (g) of the Philippine Immigration Act of
1940 which reads:
An alien who is admitted as a non-immigrant cannot remain in the Philippines
permanently. To obtain permanent admission, a non-immigrant alien must depart
voluntarily to some foreign country and procure from the appropriate Philippine
Consul the proper visa and thereafter undergo examination by the Officers of the
Bureau of Immigration at a Philippine port of entry for determination of his
admissibility in accordance with the requirements of this Act. (This paragraph is
added by Republic Act 503). (Sec. 9, subparagraph (g) of the Philippine Immigration
Act of 1940).
And fourth, respondent Commissioner of Immigration is charged with the
administration of all laws relating to immigration (Sec. 3, Com. Act No. 613) and in
the performance of his duties in relation to alien immigrants, the law gives the

Commissioner of Immigration a wide discretion, a quasi-judicial function in

determining cases presented to him (Pedro Uy So vs. Commissioner of Immigration
CA-G. R. No. 23336-R, Dec. 15, 1960), so that his decision thereon may not be
disturbed unless he acted with abuse of discretion or in excess of his jurisdiction.
It may also be not amiss to state that wife Lau Yuen Yeung, while she barely and
insufficiently talk in broken Tagalog and English, she admitted that she cannot write
either language.
The only matter of fact not clearly passed upon by His Honor which could have
some bearing in the resolution of this appeal is the allegation in the brief of
petitioners-appellants, not denied in the governments brief, that "in the hearing ...,
it was shown thru the testimony of the plaintiff Lau Yuen Yeung that she does not
possess any of the disqualifications for naturalization." Of course, as an additional
somehow relevant factual matter, it is also emphasized by said appellants that
during the hearing in the lower court, held almost ten months after the alleged
marriage of petitioners, "Lau Yuen Yeung was already carrying in her womb for
seven months a child by her husband."
Appellants have assigned six errors allegedly committed by the court a quo, thus:
I
THE LOWER COURT ERRED IN HOLDING THAT THE CLAUSE "WHO MIGHT HERSELF
BE LAWFULLY NATURALIZED" (OF SECTION 15, REVISED NATURALIZATION LAW)
INCONTESTABLY IMPLIES THAT AN ALIEN WOMAN MAY BE DEEMED A CITIZEN OF THE
PHILIPPINES BY VIRTUE OF HER MARRIAGE TO A FILIPINO CITIZEN, ONLY IF SHE
POSSESSES ALL THE QUALIFICATIONS AND NONE OF THE DISQUALIFICATIONS
SPECIFIED IN THE LAW.
II
THE LOWER COURT ERRED IN HOLDING THAT A WOMAN FOREIGNER WHO DOES
NOT POSSESS ANY OF THE DISQUALIFICATIONS FOR CITIZENSHIP AND WHO
MARRIED A FILIPINO CITIZEN IS STILL CONSIDERED AN ALIEN EVEN AFTER SUCH
MARRIAGE AS TO FALL WITHIN THE REQUIREMENT OF SECTION 9, SUB-PARAGRAPH
(9) OF THE PHILIPPINE IMMIGRATION ACT OF 1940.
III
THE COURT ERRED IN CONCLUDING THAT LAU YUEN YEUNG'S MARRIAGE TO A
FILIPINO CITIZEN WAS ONLY FOR CONVENIENCE, MERELY BECAUSE THE SAME WAS
CELEBRATED JUST OVER A MONTH BEFORE THE EXPIRY DATE OF HER AUTHORIZED
STAY.
IV
THE LOWER COURT ERRED IN FAILING TO FIND THAT THE COMMISSIONER OF
IMMIGRATION ACTED WITH ABUSE OF DISCRETION OR IN EXCESS OF HIS
JURISDICTION WHEN SAID OFFICER THREATENED TO SEND OUT OF THE COUNTRY

PLAINTIFF LAU YUEN YEUNG WITH WARNING THAT HER FAILURE TO DO SO WOULD
MEAN CONFISCATION OF HER BOND, ARREST AND IMMEDIATE DEPORTATION, IN
SPITE OF THE FACT THAT LAU YUEN YEUNG IS NOW A FILIPINO CITIZEN.
V
THE LOWER COURT ERRED IN DISMISSING PLAINTIFFS-APPELLANTS' COMPLAINT
AND IN REFUSING TO PERMANENTLY ENJOIN THE COMMISSIONER FROM ORDERING
PLAINTIFF LAU YUEN YEUNG TO LEAVE THE PHILIPPINES AS A TEMPORARY VISITOR
WHICH SHE IS NOT.
VI
THE LOWER COURT ERRED IN REFUSING TO GRANT PLAINTIFFS-APPELLANTS'
MOTION FOR PRELIMINARY INJUNCTION EMBODIED IN THEIR COMPLAINT, IN AN
ORDER DATED MARCH 19, 1962. (PAGES 36-41, RECORD ON APPEAL) .
We need not discuss these assigned errors separately. In effect, the above decision
upheld the two main grounds of objection of the Solicitor General to the petition in
the court below, viz:
That petitioner Lau Yuen Yeung, having been admitted as a temporary alien visitor
on the strength of a deliberate and voluntary representation that she will enter and
stay only for a period of one month and thereby secured a visa, cannot go back on
her representation to stay permanently without first departing from the Philippines
as she had promised. (Chung Tiao Bing, et al. vs. Commissioner of Immigration, G.R.
No. L-9966, September 29, 1956; Ong Se Lun vs. Board of Commissioners, G.R. No.
L-6017, Sept. 16, 1954, Sec. 9, last par. Phil. Immigration Law);
That the mere marriage of a Filipino citizen to an alien does not automatically confer
on the latter Philippine citizenship. The alien wife must possess all the qualifications
required by law to become a Filipino citizen by naturalization and none of the
disqualifications. (Lee Suan Ay, Alberto Tan and Lee Chiao vs. Galang, etc., G. R. No.
L-11855, Dec. 25, 1959)
It is obvious from the nature of these objection that their proper resolution would
necessarily cover all the points raised in appellants' assignments of error, hence, We
will base our discussions, more or less, on said objections.
I
The first objection of the Solicitor General which covers the matters dealt with in
appellants' second and fourth assignments of error does not require any lengthy
discussion. As a matter of fact, it seem evident that the Solicitor General's pose that
an alien who has been admitted into the Philippines as a non-immigrant cannot
remain here permanently unless he voluntarily leaves the country first and goes to
a foreign country to secure thereat from the appropriate Philippine consul the
proper visa and thereafter undergo examination by officers of the Bureau of
Immigration at a Philippine port of entry for determination of his admissibility in
accordance with the requirements of the Philippine Immigration Act of 1940, as

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

for a re-entry here and undergo the process of showing that he is entitled to come
back, when after all, such right has become incontestible as a necessary
concomitant of his assumption of our nationality by whatever legal means this has
been conferred upon him. Consider for example, precisely the case of the minor
children of an alien who is naturalized. It is indubitable that they become ipso facto
citizens of the Philippines. Could it be the law that before they can be allowed
permanent residence, they still have to be taken abroad so that they may be
processed to determine whether or not they have a right to have permanent
residence here? The difficulties and hardships which such a requirement entails and
its seeming unreasonableness argue against such a rather absurd construction.
Indeed, as early as 1957, in Ly Giok Ha vs. Galang, 101 Phil. 459, Mr. Justice
Concepcion, our present Chief Justice, already ruled thus:
... (P)etitioners allege that, upon her marriage to a Filipino, Ly Giok Ha became also
a citizen of the Philippines. Indeed, if this conclusion were correct, it would follow
that, in consequence of her marriage, she had been naturalized as such citizen, and,
hence the decision appealed from would have to be affirmed, for section 40(c) of
Commonwealth Act 613 provides that "in the event of the naturalization as a
Philippine citizen ... of the alien on whose behalf the bond deposit is given, the bond
shall be cancelled or the sum deposited shall be returned to the depositor or his
legal representative." (At. pp. 462-463)
In other words, the applicable statute itself more than implies that the naturalization
of an alien visitor as a Philippine citizen logically produces the effect of conferring
upon him ipso facto all the rights of citizenship including that of being entitled to
permanently stay in the Philippines outside the orbit of authority of the
Commissioner of Immigration vis-a-vis aliens, if only because by its very nature and
express provisions, the Immigration Law is a law only for aliens and is inapplicable
to citizens of the Philippines. In the sense thus discussed therefore, appellants'
second and fourth assignments of error are well taken.
II
Precisely, the second objection, of the Solicitor General sustained by the trial judge
is that appellant Lau Yuen Yeung's marriage to appellant Moya Lim Yao alias
Edilberto Aguinaldo whose Filipino citizenship is not denied did not have the effect
of making her a Filipino, since it has not been shown that she "might herself be
lawfully naturalized," it appearing clearly in the record that she does not possess all
the qualifications required of applicants for naturalization by the Revised
Naturalization Law, Commonwealth Act 473, even if she has proven that she does
not suffer from any of the disqualifications thereunder. In other words, the Solicitor
General implicitly concedes that had it been established in the proceedings below
that appellant Lau Yuen Yeung possesses all the qualifications required by the law of
applicants for naturalization, she would have been recognized by the respondent as
a Filipino citizen in the instant case, without requiring her to submit to the usual
proceedings for naturalization.
To be sure, this position of the Solicitor General is in accord with what used to be the
view of this Court since Lee Suan Ay, et al. v. Emilio Galang, etc., et al., G.R. No. L11855, promulgated December 23, 1959, 106 Phil., 706,713, 1 for it was only in Zita

Ngo Burca vs. Republic, G.R. NO. L-24252 which was promulgated on January 30,
1967 (19 SCRA 186), that over the pen of Mr. Justice Conrado Sanchez, this Court
held that for an alien woman who marries a Filipino to be deemed a Filipina, she has
to apply for naturalization in accordance with the procedure prescribed by the
Revised Naturalization Law and prove in said naturalization proceeding not only that
she has all the qualifications and none of the disqualifications provided in the law
but also that she has complied with all the formalities required thereby like any
other applicant for naturalization, 2 albeit said decision is not yet part of our
jurisprudence inasmuch as the motion for its reconsideration is still pending
resolution. Appellants are in effect urging Us, however, in their first and second
assignments of error, not only to reconsider Burca but to even reexamine Lee Suan
Ay which, as a matter of fact, is the prevailing rule, having been reiterated in all
subsequent decisions up to Go Im Ty. 3
Actually, the first case in which Section 15 of the Naturalization Law,
Commonwealth Act 473, underwent judicial construction was in the first Ly Giok Ha
case, 4 one almost identical to the one at bar. Ly Giok Ha, a woman of Chinese
nationality, was a temporary visitor here whose authority to stay was to expire on
March 14, 1956. She filed a bond to guaranty her timely departure. On March 8,
1956, eight days before the expiration of her authority to stay, she married a
Filipino by the name of Restituto Lacasta. On March 9, 1956, her husband notified
the Commissioner of Immigration of said marriage and, contending that his wife had
become a Filipina by reason of said marriage, demanded for the cancellation of her
bond, but instead of acceding to such request, the Commissioner required her to
leave, and upon her failure to do so, on March 16, 1956, the Commissioner
confiscated her bond; a suit was filed for the recovery of the bond; the lower court
sustained her contention that she had no obligation to leave, because she had
become Filipina by marriage, hence her bond should be returned. The Commissioner
appealed to this Court. In the said appeal, Mr. Justice Roberto Concepcion, our
present Chief Justice, spoke for the Court, thus:
The next and most important question for determination is whether her marriage to
a Filipino justified or, at least, excused the aforesaid failure of Ly Giok Ha to depart
from the Philippines on or before March 14, 1956. In maintaining the affirmative
view, petitioners alleged that, upon her marriage to a Filipino, Ly Giok Ha became,
also, a citizen of the Philippines. Indeed, if this conclusion were correct, it would
follow that, in consequence of her marriage, she had been naturalized as such
citizen, and, hence, the decision appealed from would have to be affirmed, for
section 40(c) of Commonwealth Act No. 613 provides that "in the event of the
naturalization as a Philippine citizen ... of the alien on whose behalf the bond
deposit is given, the bond shall be cancelled or the sum deposited shall be returned
to the depositor or his legal representative." Thus the issue boils down to whether
an alien female who marries a male citizen of the Philippines follows ipso facto his
political status.
The pertinent part of section 15 of Commonwealth Act No. 473, upon which
petitioners rely, reads:

Any woman who is now or may hereafter be married to a citizen of the Philippines,
and who might herself be lawfully naturalized shall be deemed a citizen of the
Philippines.
Pursuant thereto, marriage to a male Filipino does not vest Philippine citizenship to
his foreign wife, unless she "herself may be lawfully naturalized." As correctly held
in an opinion of the Secretary of Justice (Op. No. 52, series of 1950),* this limitation
of section 15 excludes, from the benefits of naturalization by marriage, those
disqualified from being naturalized as citizens of the Philippines under section 4 of
said Commonwealth Act No. 473, namely:
(a)
Persons opposed to organized government or affiliated with any association
or group of persons who uphold and teach doctrines opposing all organized
governments;
(b)
Persons defending or teaching the necessity or propriety of violence, personal
assault, or assassination for the success and predominance of their ideas;
(c)

Polygamists or believers in the practice of polygamy;

(d)

Persons convicted of crimes involving moral turpitude;

(e)

Persons suffering from mental alienation or incurable contagious diseases;

(f)
Persons who, during the period of their residence in the Philippines, have not
mingled socially with the Filipinos, or who have not evinced a sincere desire to learn
and embrace the customs, traditions, and ideals of the Filipinos;
(g)
Citizens or subjects of nations with whom the ... Philippines are at war, during
the period of such war;
(h)
Citizens or subjects of a foreign country other than the United States, whose
laws does not grant Filipinos the right to become naturalized citizens or subjects
thereof.
In the case at bar, there is neither proof nor allegation in the pleadings that Ly Giok
Ha does not fall under any of the classes disqualified by law. Moreover, as the
parties who claim that, despite her failure to depart from the Philippines within the
period specified in the bond in question, there has been no breach thereof,
petitioners have the burden of proving her alleged change of political status, from
alien to citizen. Strictly speaking, petitioners have not made out, therefore a case
against the respondents-appellants.
Considering, however, that neither in the administrative proceedings, nor in the
lower court, had the parties seemingly felt that there was an issue on whether Ly
Giok Ha may "be lawfully naturalized," and this being a case of first impression in
our courts, we are of the opinion that, in the interest of equity and justice, the
parties herein should be given an opportunity to introduce evidence, if they have
any, on said issue. (At pp. 462-464.) .

As may be seen, although not specifically in so many words, no doubt was left in the
above decision as regards the following propositions: .
1.
That under Section 15 of Commonwealth Act 473, the Revised Naturalization
Law, the marriage of an alien woman to a Filipino makes her a Filipina, if she
"herself might be lawfully naturalized";
2.
That this Court declared as correct the opinion of the Secretary of Justice that
the limitation of Section 15 of the Naturalization Law excludes from the benefits of
naturalization by marriage, only those disqualified from being naturalized under
Section 4 of the law qouted in the decision;
3.
That evidence to the effect that she is not disqualified may be presented in
the action to recover her bond confiscated by the Commissioner of Immigration;
4.

That upon proof of such fact, she may be recognized as Filipina; and

5.
That in referring to the disqualification enumerated in the law, the Court
somehow left the impression that no inquiry need be made as to qualifications, 5
specially considering that the decision cited and footnotes several opinions of the
Secretary of Justice, the immediate superior of the Commissioner of Immigration,
the most important of which are the following:
Paragraph (a), section 13 of Act No. 2927, as amended, (now section 15,
Commonwealth Act No. 473), provided that "any woman who is now or may
hereafter be married to a citizen of the Philippines, and who might herself be
lawfully naturalized shall be deemed a citizen of the Philippines." A similar provision
in the naturalization law of the United States has been construed as not requiring
the woman to have the qualifications of residence, good character, etc., as in the
case of naturalization by judicial proceedings, but merely that she is of the race of
persons who may be naturalized. (Kelly v. Owen [Dist. Col. 1868] 7 Wall 496, 5F, 11,
12; ex parte Tryason [D. C. Wash. 1914] 215 F. 449, 27 Op. Atty. Gen. 507). (Op. No.
168, s. 1940 of Justice Sec. Jose Abad Santos.)
In a previous opinion rendered for your Office, I stated that the clause "who might
herself be lawfully naturalized", should be construed as not requiring the woman to
have the qualifications of residence, good character, etc., as in cases of
naturalization by judicial proceedings, but merely that she is of the race of persons
who may be naturalized. (Op. No. 79, s. 1940)
Inasmuch as the race qualification has been removed by the Revised Naturalization
Law, it results that any woman who married a citizen of the Philippines prior to or
after June 17, 1939, and the marriage not having been dissolved, and on the
assumption that she possesses none of the disqualifications mentioned in Section 4
of Commonwealth Act No. 473, follows the citizenship of her husband. (Op. No. 176,
s. 1940 of Justice Sec. Jose Abad Santos.)
From the foregoing narration of facts, it would seem that the only material point of
inquiry is as to the citizenship of Arce Machura. If he shall be found to be a citizen of
the Philippines, his wife, Mrs. Lily James Machura, shall likewise be deemed a citizen

of the Philippines pursuant to the provision of Section 15, Commonwealth Act No.
473, which reads in part as follows:
Any woman who is now or may hereafter be married to a citizen of the Philippines,
and who might herself be lawfully naturalized shall be deemed a citizen of the
Philippines.
The phrase "who might herself be lawfully naturalized", as contained in the above
provision, means that the woman who is married to a Filipino citizen must not
belong to any of the disqualified classes enumerated in Section 4 of the
Naturalization Law (Ops., Sec. of Jus., No. 28, s. 1950; No. 43, s. 1948, No. 95, s.
1941; Nos. 79 and 168, s. 1940). Under the facts stated in the within papers, Mrs.
Machura does not appear to be among the disqualified classes mentioned in the
law.
It having been shown that Arce Machura or Arsenio Guevara was born as an
illegitimate of a Filipino mother, he should be considered as a citizen of the
Philippines in consonance with the well-settled rule that an illegitimate child follows
the citizenship of his only legally recognized parent, the mother (Op., Sec. of Jus.,
Nos. 58, 98 & 281, s. 1948; No. 96, s. 1949). Her husband being a Filipino, Mrs.
Machura must necessarily be deemed as a citizen of the Philippines by marriage
(Sec. 15, Com. Act No. 473.) (Op. No. 52, s. 1950 of Justice Sec. Ricardo
Nepomuceno.)
The logic and authority of these opinions, compelling as they are, must have so
appealed to this Court that five days later, on May 22, 1957, in Ricardo Cua v. The
Board of Commissioners, 101 Phil. 521, Mr. Justice J.B.L. Reyes, reiterated the same
ruling on the basis of the following facts:
Tjioe Wu Suan, an Indonesian, arrived in Manila on November 1, 1952, but it turned
out that her passport was forged. On December 10, 1953, a warrant was issued for
her arrest for purpose of deportation. Later, on December 20, 1953, she married
Ricardo Cua, a Filipino, and because of said marriage, the Board of Special Inquiry
considered her a Filipina. Upon a review of the case, however, the Board of
Immigration Commissioners insisted on continuing with the deportation proceedings
and so, the husband filed prohibition and mandamus proceedings. The lower court
denied the petition. Although this Court affirmed said decision, it held, on the other
hand, that:
Granting the validity of marriage, this Court has ruled in the recent case of Ly Giok
Ha v. Galang, supra, p. 459, that the bare fact of a valid marriage to a citizen does
not suffice to confer his citizenship upon the wife. Section 15 of the Naturalization
Law requires that the alien woman who marries a Filipino must show, in addition,
that she "might herself be lawfully naturalized" as a Filipino citizen. As construed in
the decision cited, this last condition requires proof that the woman who married a
Filipino is herself not disqualified under section 4 of the Naturalization Law.
No such evidence appearing on record, the claim of assumption of Filipino
citizenship by Tjioe Wu Suan, upon her marriage to petitioner, is untenable. The
lower court, therefore, committed no error in refusing to interfere with the

deportation proceedings, where she can anyway establish the requisites

indispensable for her acquisition of Filipino citizenship, as well as the alleged validity
of her Indonesian passport. (Ricardo Cua v. The Board of Immigration
Commissioners, G. R. No. L-9997, May 22, 1957, 101 Phil. 521, 523.) [Emphasis
supplied] .
For emphasis, it is reiterated that in the above two cases, this Court expressly gave
the parties concerned opportunity to prove the fact that they were not suffering
from any of the disqualifications of the law without the need of undergoing any
judicial naturalization proceeding. It may be stated, therefore, that according to the
above decisions, the law in this country, on the matter of the effect of marriage of
an alien woman to a Filipino is that she thereby becomes a Filipina, if it can be
proven that at the time of such marriage, she does not possess any of the
disqualifications enumerated in Section 4 of the Naturalization Law, without the
need of submitting to any naturalization proceedings under said law.
It is to be admitted that both of the above decisions made no reference to
qualifications, that is, as to whether or not they need also to be proved, but, in any
event, it is a fact that the Secretary of Justice understood them to mean that such
qualifications need not be possessed nor proven. Then Secretary of Justice Jesus
Barrera, who later became a distinguished member of this Court, 6 so ruled in
opinions rendered by him subsequent to Ly Giok Ha, the most illustrative of which
held: .
At the outset it is important to note that an alien woman married to a Filipino citizen
needs only to show that she "might herself be lawfully naturalized" in order to
acquire Philippine citizenship. Compliance with other conditions of the statute, such
as those relating to the qualifications of an applicant for naturalization through
judicial proceedings, is not necessary. (See: Leonard v. Grant, 5 Fed. 11; 27 Ops.
Atty. Gen [U.S.] 507; Ops. Sec. of Justice, No. 776, s. 1940, and No. 111, s. 1953.
This view finds support in the case of Ly Giok Ha et al. v. Galang et al., G.R. No. L10760, promulgated May 17, 1957, where the Supreme Court, construing the
abovequoted section of the Naturalization Law, held that "marriage to a male
Filipino does not vest Philippine citizenship to his foreign wife," unless she "herself
may be lawfully naturalized," and that "this limitation of Section 15 excludes, from
the benefits of naturalization by marriage, those disqualified from being naturalized
as citizens of the Philippines under Section 4 of said Commonwealth Act No. 473." In
other words, disqualification for any of the causes enumerated in Section 4 of the
Act is the decisive factor that defeats the right of the foreign wife of a Philippine
citizen to acquire Philippine citizenship.
xxx

xxx

xxx

Does petitioner, Lim King Bian, belong to any of these groups The Commissioner of
Immigration does not say so but merely predicates his negative action on the
ground that a warrant of deportation for "overstaying" is pending against the
petitioner.

We do not believe the position is well taken. Since the grounds for disqualification
for naturalization are expressly enumerated in the law, a warrant of deportation not
based on a finding of unfitness to become naturalized for any of those specified
causes may not be invoked to negate acquisition of Philippine citizenship by a
foreign wife of a Philippine citizen under Section 15 of the Naturalization Law.
(Inclusio unius est exclusio alterius) (Op. No. 12, s. 1958 of Justice Undersec. Jesus
G. Barrera.)
Regarding the steps that should be taken by an alien woman married to a Filipino
citizen in order to acquire Philippine citizenship, the procedure followed in the
Bureau of Immigration is as follows: The alien woman must file a petition for the
cancellation of her alien certificate of registration alleging, among other things, that
she is married to a Filipino citizen and that she is not disqualified from acquiring her
husband's citizenship pursuant to section 4 of Commonwealth Act No. 473, as
amended. Upon the filing of said petition, which should be accompanied or
supported by the joint affidavit of the petitioner and her Filipino husband to the
effect that the petitioner does not belong to any of the groups disqualified by the
cited section from becoming naturalized Filipino citizen (please see attached CEB
Form 1), the Bureau of Immigration conducts an investigation and thereafter
promulgates its order or decision granting or denying the petition. (Op. No. 38, s.
19058 of Justice Sec. Jesus G. Barrera.)
This view finds support in the case of Ly Giok Ha et al., v. Galang et al. (G.R. No. L10760, promulgated May 17, 1957), where the Supreme Court, construing the
above-quoted section in the Revised Naturalization Law, held that "marriage to a
male Filipino does not vest Philippine citizenship to his foreign wife, unless she
herself may be lawfully naturalized," and that "this limitation of Section 15 excludes,
from the benefits of naturalization by marriage, those disqualified from being
naturalized as citizens of the Philippines under Section 4 of said Commonwealth Act
No. 473." In other words, disqualification for any of the causes enumerated in
section 4 of the Act is the decisive factor that defeats the right of an alien woman
married to a Filipino citizen to acquire Philippine citizenship. (Op. 57, s. 1958 of
Justice Sec. Jesus G. Barrera.)
The contention is untenable. The doctrine enunciated in the Ly Giok Ha case is not a
new one. In that case, the Supreme Court held that under paragraph I of Section 15
Of Commonwealth Act No. 473, 'marriage to a male Filipino does not vest Philippine
citizenship to his foreign wife unless she "herself may be lawfully naturalized"', and,
quoting several earlier opinions of the Secretary of Justice, namely: No. 52, s. 1950;
No. 168, s. 1940; No. 95, s. 1941; No. 63, s. 1948; No. 28. s. 1950, "this limitation of
section 15 excludes from the benefits of naturalization by marriage, those
disqualified from being naturalized as citizens of the Philippines under section 4 of
said Commonwealth Act No. 473." (Op. 134, s. 1962 of Justice Undersec. Magno S.
Gatmaitan.)
It was not until more than two years later that, in one respect, the above
construction of the law was importantly modified by this Court in Lee Suan Ay,
supra, in which the facts were as follows:

Upon expiration of the appellant Lee Suan Ay's authorized period of temporary stay
in the Philippines (25 March 1955), on 26 March 1955 the Commissioner of
Immigration asked the bondsman to present her to the Bureau of Immigration within
24 hours from receipt of notice, otherwise the bond will be confiscated(Annex 1). For
failure of the bondsman to comply with the foregoing order, on 1 April 1955. the
Commissioner of Immigration ordered the cash bond confiscated (Annex E).
Therefore, there was an order issued by the Commissioner of Immigration
confiscating or forfeiting the cash bond. Unlike in forfeiture of bail bonds in criminal
proceedings, where the Court must enter an order forfeiting the bail bond and the
bondsman must be given an opportunity to present his principal or give a
satisfactory reason for his inability to do so, before final judgment may be entered
against the bondsman,(section 15, Rule 110; U.S. v. Bonoan, 22 Phil. 1.) in forfeiture
of bonds posted for the temporary stay of an alien in the Philippines, no court
proceeding is necessary. Once a breach of the terms and conditions of the
undertaking in the bond is committed, the Commissioner of Immigration may, under
the terms and conditions thereof, declare it forfeited in favor of the Government. (In
the meanwhile, on April 1, 1955, Lee Suan Ay and Alberto Tan, a Filipino, were joined
in marriage by the Justice of the Peace of Las Pias, Rizal.)
Mr. Justice Sabino Padilla speaking for a unanimous court which included Justices
Concepcion and Reyes who had penned Ly Giok Ha, and Ricardo Cua, ruled thus:
The fact that Lee Suan Ay (a Chinese) was married to a Filipino citizen does not
relieve the bondsman from his liability on the bond. The marriage took place on 1
April 1955, and the violation of the terms and conditions of the undertaking in the
bond failure to depart from the Philippines upon expiration of her authorized
period of temporary stay in the Philippines (25 March 1955) and failure to report to
the Commissioner of Immigration within 24 hours from receipt of notice were
committed before the marriage. Moreover, the marriage of a Filipino citizen to an
alien does not automatically confer Philippine citizenship upon the latter. She must
possess the qualifications required by law to become a Filipino citizen by
naturalization.* There is no showing that the appellant Lee Suan Ay possesses all
the qualifications and none of the disqualifications provided for by law to become a
Filipino citizen by naturalization.
Pertinently to be noted at once in this ruling, which, to be sure, is the one relied
upon in the appealed decision now before Us, is the fact that the footnote of the
statement therein that the alien wife "must possess the qualifications required by
law to become a Filipino citizen by naturalization" makes reference to Section 15,
Commonwealth Act 473 and precisely, also to Ly Giok Ha v. Galang, supra. As will be
recalled, on the other hand, in the opinions of the Secretary of Justice explicitly
adopted by the Court in Ly Giok Ha, among them, Opinion No. 176, Series of 1940,
above-quoted, it was clearly held that "(I)n a previous opinion rendered for your
Office, I stated that the clause "who might herself be lawfully naturalized", should
be construed as not requiring the woman to have the qualifications of residence,
good character, etc., as in cases of naturalization by judicial proceedings but merely
that she is of the race by persons who may be naturalized. (Op. No. 79, s. 1940)
Since Justice Padilla gave no reason at all for the obviously significant modification
of the construction of the law, it could be said that there was need for clarification of

the seemingly new posture of the Court. The occasion for such clarification should
have been in Kua Suy, etc., et al. vs. The Commissioner of Immigration, G.R. No. L13790, October 31, 1963, penned by Mr. Justice J.B.L. Reyes, who had rendered the
opinion in Ricardo Cua, supra, which followed that in Ly Giok Ha, supra, but
apparently seeing no immediate relevancy in the case on hand then of the
particular point in issue now, since it was not squarely raised therein similarly as in
Lee Suan Ay, hence, anything said on the said matter would at best be no more
than obiter dictum, Justice Reyes limited himself to holding that "Under Section 15
of the Naturalization Act, the wife is deemed a citizen of the Philippines only if she
"might herself be lawfully naturalized," so that the fact of marriage to a citizen, by
itself alone, does not suffice to confer citizenship, as this Court has previously ruled
in Ly Giok Ha v. Galang, 54 O.G. 356, and in Cua v. Board of Immigration
Commissioners, 53 O.G. 8567; and there is here no evidence of record as to the
qualifications or absence of disqualifications of appellee Kua Suy", without
explaining the apparent departure already pointed out from Ly Giok Ha and Ricardo
Cua. Even Justice Makalintal, who wrote a separate concurring and dissenting
opinion merely lumped together Ly Giok Ha, Ricardo Cua and Lee Suan Ay and
opined that both qualifications and non-disqualifications have to be shown without
elucidating on what seemed to be departure from the said first two decisions.
It was only on November 30, 1963 that to Mr. Justice Roberto Regala fell the task of
rationalizing the Court's position. In Lo San Tuang v. Galang, G.R. No. L-18775,
November 30, 1963, 9 SCRA 638, the facts were simply these: Lo San Tuang, a
Chinese woman, arrived in the Philippines on July 1, 1960 as a temporary visitor
with authority to stay up to June 30, 1961. She married a Filipino on January 7,
1961, almost six months before the expiry date of her permit, and when she was
requested to leave after her authority to stay had expired, she refused to do so,
claiming she had become a Filipina by marriage, and to bolster her position, she
submitted an affidavit stating explicitly that she does not possess any of the
disqualifications enumerated in the Naturalization Law, Commonwealth Act 473.
When the case reached the court, the trial judge held for the government that in
addition to not having any of the disqualifications referred to, there was need that
Lo San Tuang should have also possessed all the qualifications of residence, moral
character, knowledge of a native principal dialect, etc., provided by the law.
Recognizing that the issue squarely to be passed upon was whether or not the
possession of all the qualifications were indeed needed to be shown apart from nondisqualification, Justice Regala held affirmatively for the Court, reasoning out thus: .
It is to be noted that the petitioner has anchored her claim for citizenship on the
basis of the decision laid down in the case of Leonard v. Grant, 5 Swy. 603, 5 F 11,
where the Circuit Court of Oregon held that it was only necessary that the woman
"should be a person of the class or race permitted to be naturalized by existing
laws, and that in respect of the qualifications arising out of her conduct or opinions,
being the wife of a citizen, she is to be regarded as qualified for citizenship, and
therefore considered a citizen." (In explanation of its conclusion, the Court said: "If,
whenever during the life of the woman or afterwards, the question of her citizenship
arises in a legal proceeding, the party asserting her citizenship by reason of her
marriage with a citizen must not only prove such marriage, but also that the woman
then possessed all the further qualifications necessary to her becoming naturalized
under existing laws, the statute will be practically nugatory, if not a delusion and a

share. The proof of the facts may have existed at the time of the marriage, but
years after, when a controversy arises upon the subject, it may be lost or difficult to
find.")
In other words, all that she was required to prove was that she was a free white
woman or a woman of African descent or nativity, in order to be deemed an
American citizen, because, with respect to the rest of the qualifications on
residence, moral character, etc., she was presumed to be qualified.
Like the law in the United States, our former Naturalization Law (Act No. 2927, as
amended by Act No. 3448) specified the classes of persons who alone might
become citizens of the Philippines, even as it provided who were disqualified. Thus,
the pertinent provisions of that law provided:
Section 1.
Who may become Philippine citizens Philippine citizenship may be
acquired by (a) natives of the Philippines who are not citizens thereof under the
Jones Law; (b) natives of the Insular possessions of the United States; (c) citizens of
the United States, or foreigners who under the laws of the United States may
become citizens of said country if residing therein.
Section 2.
Who are disqualified. The following cannot be naturalized as
Philippine citizens: (a) Persons opposed to organized government or affiliated with
any association or group of persons who uphold and teach doctrines opposing all
organized government; (b) persons defending or teaching the necessity or propriety
of violence, personal assault or assassination for the success and predominance of
their ideas; (c) polygamists or believers in the practice of polygamy; (d) persons
convicted of crimes involving moral turpitude; (e) persons suffering from mental
alienation or incurable contagious diseases; (f) citizens or subjects of nations with
whom the United States and the Philippines are at war, during the period of such
war.
Section 3.
Qualifications. The persons comprised in subsection (a) of section
one of this Act, in order to be able to acquire Philippine citizenship, must be not less
than twenty-one years of age on the day of the hearing of their petition.
The persons comprised in subsections (b) and (c) of said section one shall, in
addition to being not less than twenty-one years of age on the day of the hearing of
the petition, have all and each of the following qualifications:
First. Residence in the Philippine Islands for a continuous period of not less than five
years, except as provided in the next following section;
Second. To have conducted themselves in a proper and irreproachable manner
during the entire period of their residence in the Philippine Islands, in their relation
with the constituted government as well as with the community in which they are
living;
Third. To hold in the Philippine Islands real estate worth not less than one thousand
pesos, Philippine currency, or have some known trade or profession; and

Fourth. To speak and write English, Spanish, or some native tongue.

In case the petitioner is a foreign subject, he shall, besides, declare in writing and
under oath his intention of renouncing absolutely and perpetually all faith and
allegiance to the foreign authority, state or sovereignty of which he was a native,
citizen or subject.
Applying the interpretation given by Leonard v. Grant supra, to our law as it then
stood, alien women married to citizens of the Philippines must, in order to be
deemed citizens of the Philippines, be either (1) natives of the Philippines who were
not citizens thereof under the Jones Law, or (2) natives of other Insular possessions
of the United States, or (3) citizens of the United States or foreigners who under the
laws of the United States might become citizens of that country if residing therein.
With respect to the qualifications set forth in Section 3 of the former law, they were
deemed to have the same for all intents and purposes.
But, with the approval of the Revised Naturalization Law (Commonwealth Act No.
473) on June 17, 1939, Congress has since discarded class or racial consideration
from the qualifications of applicants for naturalization (according to its proponent,
the purpose in eliminating this consideration was, first, to remove the features of
the existing naturalization act which discriminated in favor of the Caucasians and
against Asiatics who are our neighbors, and are related to us by racial affinity and,
second, to foster amity with all nations [Sinco, Phil. Political Law 502 11 ed.]),
even as it retained in Section 15 the phrase in question. The result is that the
phrase "who might herself be lawfully naturalized" must be understood in the
context in which it is now found, in a setting so different from that in which it was
found by the Court in Leonard v. Grant.
The only logical deduction from the elimination of class or racial consideration is
that, as the Solicitor General points out, the phrase "who might herself be lawfully
naturalized" must now be understood as referring to those who under Section 2 of
the law are qualified to become citizens of the Philippines.
There is simply no support for the view that the phrase "who might herself be
lawfully naturalized" must now be understood as requiring merely that the alien
woman must not belong to the class of disqualified persons under Section 4 of the
Revised Naturalization Law. Such a proposition misreads the ruling laid down in
Leonard v. Grant. A person who is not disqualified is not necessarily qualified to
become a citizen of the Philippines, because the law treats "qualifications" and
"disqualifications" in separate sections. And then it must not be lost sight of that
even under the interpretation given to the former law, it was to be understood that
the alien woman was not disqualified under Section 2 of that law. Leonard v. Grant
did not rule that it was enough if the alien woman does not belong to the class of
disqualified persons in order that she may be deemed to follow the citizenship of
her husband: What that case held was that the phrase "who might herself be
lawfully naturalized, merely means that she belongs to the class or race of persons
qualified to become citizens by naturalization the assumption being always that
she is not otherwise disqualified.

We therefore hold that under the first paragraph of Section 15 of the Naturalization
Law, an alien woman, who is married to a citizen of the Philippines, acquires the
citizenship of her husband only if she has all the qualifications and none of the
disqualifications provided by law. Since there is no proof in this case that petitioner
has all the qualifications and is not in any way disqualified, her marriage to a Filipino
citizen does not automatically make her a Filipino citizen. Her affidavit to the effect
that she is not in any way disqualified to become a citizen of this country was
correctly disregarded by the trial court, the same being self-serving.
Naturally, almost a month later in Sun Peck Yong v. Commissioner of Immigration,
G.R. No. L-20784, December 27, 1963, 9 SCRA 875, wherein the Secretary of Foreign
Affairs reversed a previous resolution of the preceding administration to allow Sun
Peck Yong and her minor son to await the taking of the oath of Filipino citizenship of
her husband two years after the decision granting him nationalization and required
her to leave and this order was contested in court, Justice Barrera held:
In the case of Lo San Tuang v. Commissioner of Immigration (G.R. No. L-18775,
promulgated November 30, 1963; Kua Suy vs. Commissioner of Immigration, L13790, promulgated October 31, 1963), we held that the fact that the husband
became a naturalized citizen does not automatically make the wife a citizen of the
Philippines. It must also be shown that she herself possesses all the qualifications,
and none of the disqualifications, to become a citizen. In this case, there is no
allegation, much less showing, that petitioner-wife is qualified to become a Filipino
citizen herself. Furthermore, the fact that a decision was favorably made on the
naturalization petition of her husband is no assurance that he (the husband) would
become a citizen, as to make a basis for the extension of her temporary stay.
On the same day, in Tong Siok Sy v. Vivo, G.R. No. L-21136, December 27, 1963, 9
SCRA 876, Justice Barrera reiterated the same ruling and citing particularly Lo San
Tuang and Kua Suy, held that the marriage of Tong Siok Sy to a Filipino on November
12, 1960 at Taichung, Taiwan and her taking oath of Filipino citizenship before the
Philippine Vice-Consul at Taipeh, Taiwan on January 6, 1961 did not make her a
Filipino citizen, since she came here only in 1961 and obviously, she had not had
the necessary ten-year residence in the Philippines required by the law.
Such then was the status of the jurisprudential law on the matter under discussion
when Justice Makalintal sought a reexamination thereof in Choy King Tee v. Galang,
G.R. No. L-18351, March 26, 1965, 13 SCRA 402. Choy King Tee's husband was
granted Philippine citizenship on January 13, 1959 and took the oath on January 31
of the same year. Choy King Tee first came to the Philippines in 1955 and kept
commuting between Manila and Hongkong since then, her last visa before the case
being due to expire on February 14, 1961. On January 27, 1961, her husband asked
the Commissioner of Immigration to cancel her alien certificate of registration, as
well as their child's, for the reason that they were Filipinos, and when the request
was denied as to the wife, a mandamus was sought, which the trial court granted.
Discussing anew the issue of the need for qualifications, Justice Makalintal not only
reiterated the arguments of Justice Regala in Lo San Tuang but added further that
the ruling is believed to be in line with the national policy of selective admission to
Philippine citizenship. 7

No wonder, upon this authority, in Austria v. Conchu, G.R. No. L-20716, June 22,
1965, 14 SCRA 336, Justice J.P. Bengzon readily reversed the decision of the lower
court granting the writs of mandamus and prohibition against the Commissioner of
Immigration, considering that Austria's wife, while admitting she did not possess all
the qualifications for naturalization, had submitted only an affidavit that she had
none of the disqualifications therefor. So also did Justice Dizon similarly hold eight
days later in Brito v. Commissioner, G.R. No. L-16829, June 30, 1965, 14 SCRA 539.
Then came the second Ly Giok Ha case 8 wherein Justice J. B. L. Reyes took occasion
to expand on the reasoning of Choy King Tee by illustrating with examples "the
danger of relying exclusively on the absence of disqualifications, without taking into
account the other affirmative requirements of the law." 9
Lastly, in Go Im Ty v. Republic, G.R. No. L-17919, decided on July 30, 1966, 10
Justice Zaldivar held for the Court that an alien woman who is widowed during the
dependency of the naturalization proceedings of her husband, in order that she may
be allowed to take the oath as Filipino, must, aside from proving compliance with
the requirements of Republic Act 530, show that she possesses all the qualifications
and does not suffer from any of the disqualifications under the Naturalization Law,
citing in the process the decision to such effect discussed above, 11 even as he
impliedly reversed pro tanto the ruling in Tan Lin v. Republic, G.R. No. L-13786, May
31, 1961, 2 SCRA 383.
Accordingly, in Burca, Justice Sanchez premised his opinion on the assumption that
the point now under discussion is settled law.
In the case now at bar, the Court is again called upon to rule on the same issue.
Under Section 15 of the Naturalization Law, Commonwealth Act 473, providing that:
SEC. 15.
Effect of the naturalization on wife and children. Any woman, who is
now or may hereafter be married to a citizen of the Philippines, and who might
herself be lawfully naturalized shall be deemed a citizen of the Philippines.
Minor children of persons naturalized under this law who have been born in the
Philippines shall be considered citizens thereof.
A foreign-born minor child, if dwelling in the Philippines at the time of the
naturalization of the parent, shall automatically become a Philippine citizen, and a
foreign-born child, who is not in the Philippines at the time the parent is naturalized,
shall be deemed a Philippine citizen only during his minority, unless he begins to
reside permanently in the Philippines when still a minor, in which case, he will
continue to be a Philippine citizen even after becoming of age.
A child born outside of the Philippines after the naturalization of his parent, shall be
considered a Philippine citizen unless within one year after reaching the age of
majority he fails to register himself as a Philippine citizen at the American Consulate
of the country where he resides, and to take the necessary oath of allegiance.
is it necessary, in order that an alien woman who marries a Filipino or who is
married to a man who subsequently becomes a Filipino, may become a Filipino

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

SECTION 4. That all inhabitants of the Philippine Islands continuing to reside herein
who were Spanish subjects on the eleventh day of April, eighteen-hundred and
ninety-nine, and then resided in said Islands, and their children born subsequent
thereto, shall be deemed and held to be citizens of the Philippine Islands and as
such entitled to the protection of the United States, except such as shall have
elected to preserve their allegiance to the Crown of Spain in accordance with the
provisions of the treaty of peace between the United States and Spain signed at
Paris December tenth, eighteen hundred and ninety-eight.
This Section 4 of the Philippine Bill of 1902 was amended by Act of Congress of
March 23, 1912, by adding a provision as follows:
Provided, That the Philippine Legislature is hereby authorized to provide by law for
the acquisition of Philippine citizenship by those natives of the Philippine Islands
who do not come within the foregoing provisions, the natives of other insular
possessions of the United States, and such other persons residing in the Philippine
Islands who would become citizens of the United States, under the laws of the
United States, if residing therein.
The Jones Law reenacted these provisions substantially: .
SECTION 2. That all inhabitants of the Philippine Islands who were Spanish subjects
on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in
said islands, and their children born subsequent thereto, shall be deemed and held
to be citizens of the Philippine Islands, except such as shall have elected to preserve
their allegiance to the Crown of Spain in accordance with the provisions of the
treaty of peace between the United States and Spain, signed at Paris December
tenth, eighteen hundred and ninety-eight and except such others as have since
become citizens of some other country: Provided, That the Philippine Legislature,
herein provided for, is hereby authorized to provide by law for the acquisition of
Philippine citizenship by those natives of the Philippine Islands who do not come
within the foregoing provisions, the natives of the insular possessions of the United
States, and such other persons residing in the Philippine Islands who are citizens of
the United States under the laws of the United States if residing therein.
For aught that appears, there was nothing in any of the said organic laws regarding
the effect of marriage to a Filipino upon the nationality of an alien woman, albeit
under the Spanish Civil Code provisions on citizenship, Articles 17 to 27, which
were, however, abrogated upon the change of sovereignty, it was unquestionable
that the citizenship of the wife always followed that of the husband. Not even Act
2927 contained any provision regarding the effect of naturalization of an alien, upon
the citizenship of his alien wife, nor of the marriage of such alien woman with a
native born Filipino or one who had become a Filipino before the marriage, although
Section 13 thereof provided thus: .
SEC. 13.
Right of widow and children of petitioners who have died. In case a
petitioner should die before the final decision has been rendered, his widow and
minor children may continue the proceedings. The decision rendered in the case

shall, so far as the widow and minor children are concerned, produce the same legal
effect as if it had been rendered during the life of the petitioner.
It was not until November 30, 1928, upon the approval of Act 3448, amending Act
2977, that the following provisions were added to the above Section 13:
SECTION 1. The following new sections are hereby inserted between sections
thirteen and fourteen of Act Numbered Twenty-nine hundred and Twenty-seven:
SEC. 13(a). Any woman who is now or may hereafter be married to a citizen of the
Philippine Islands and who might herself be lawfully naturalized, shall be deemed a
citizen of the Philippine Islands.
SEC. 13(b). Children of persons who have been duly naturalized under this law,
being under the age of twenty-one years at the time of the naturalization of their
parents, shall, if dwelling in the Philippine Islands, be considered citizens thereof.
SEC. 13(c). Children of persons naturalized under this law who have been born in
the Philippine Islands after the naturalization of their parents shall be considered
citizens thereof.
When Commonwealth Act 473, the current naturalization law, was enacted on June
17, 1939, the above Section 13 became its Section 15 which has already been
quoted earlier in this decision. As can be seen, Section 13 (a) abovequoted was reenacted practically word for word in the first paragraph of this Section 15 except for
the change of Philippine Islands to Philippines. And it could not have been on any
other basis than this legislative history of our naturalization law that each and
everyone of the decisions of this Court from the first Ly Giok Ha to Go Im Ty,
discussed above, were rendered.
As stated earlier, in the opinion of Chief Justice Concepcion in the first Ly Giok Ha, it
was quite clear that for an alien woman who marries a Filipino to become herself a
Filipino citizen, there is no need for any naturalization proceeding because she
becomes a Filipina ipso facto from the time of such marriage, provided she does not
suffer any of the disqualifications enumerated in Section 4 of Commonwealth Act
473, with no mention being made of whether or not the qualifications enumerated
in Section 2 thereof need be shown. It was only in Lee Suan Ay in 1959 that the
possession of qualifications were specifically required, but it was not until 1963, in
Lo San Tuang, that Justice Regala reasoned out why the possession of the
qualifications provided by the law should also be shown to be possessed by the
alien wife of a Filipino, for her to become a Filipina by marriage.
As may be recalled, the basic argument advanced by Justice Regala was briefly as
follows: That "like the law in the United States, our Naturalization Law specified the
classes of persons who alone might become citizens, even as it provided who were
disqualified," and inasmuch as Commonwealth Act 473, our Naturalization Law since
1939 did not reenact the section providing who might become citizens, allegedly in
order to remove racial discrimination in favor of Caucasians and against Asiatics,
"the only logical deduction ... is that the phrase "who might herself be lawfully
naturalized" must now be understood as referring to those who under Section 2 of

the law are qualified to become citizens of the Philippines" and "there is simply no
support for the view that the phrase "who might herself be lawfully naturalized"
must now be understood as requiring merely that the alien woman must not belong
to the class of disqualified persons under Section 4 of the Revised Naturalization
Law." 14
A similar line of reasoning was followed in Choy King Tee, which for ready reference
may be qouted:
The question has been settled by the uniform ruling of this Court in a number of
cases. The alien wife of a Filipino citizen must first prove that she has all the
qualifications required by Section 2 and none of the disqualifications enumerated in
Section 4 of the Naturalization Law before she may be deemed a Philippine citizen
(Lao Chay v. Galang, L-190977, Oct. 30, 1964, citing Lo San Tuang v. Galang, L18775, Nov. 30, 1963; Sun Peck Yong v. Commissioner of Immigration, L-20784,
December 27, 1963; Tong Siok Sy v. Vivo, L-21136, December 27, 1963). The writer
of this opinion has submitted the question anew to the court for a possible
reexamination of the said ruling in the light of the interpretation of a similar law in
the United States after which Section 15 of our Naturalization Law was patterned.
That law was section 2 of the Act of February 10, 1855 (Section 1994 of the Revised
Statutes of the U.S.). The local law, Act No. 3448, was passed on November 30,
1928 as an amendment to the former Philippine Naturalization Law, Act No. 2927,
which was approved on March 26, 1920. Under this Naturalization Law, acquisition
of Philippine citizenship was limited to three classes of persons, (a) Natives of the
Philippines who were not citizens thereof; (b) natives of the other insular
possessions of the United States; and (c) citizens of the United States, or foreigners
who, under the laws of the United States, may become citizens of the latter country
if residing therein. The reference in subdivision (c) to foreigners who may become
American Citizens is restrictive in character, for only persons of certain specified
races were qualified thereunder. In other words, in so far as racial restrictions were
concerned there was at the time a similarity between the naturalization laws of the
two countries and hence there was reason to accord here persuasive force to the
interpretation given in the United States to the statutory provision concerning the
citizenship of alien women marrying American citizens.
This Court, however, believes that such reason has ceased to exist since the
enactment of the Revised Naturalization Law, (Commonwealth Act No. 473) on June
17, 1939. The racial restrictions have been eliminated in this Act, but the provision
found in Act No. 3448 has been maintained. It is logical to presume that when
Congress chose to retain the said provision that to be deemed a Philippine citizen
upon marriage the alien wife must be one "who might herself be lawfully
naturalized," the reference is no longer to the class or race to which the woman
belongs, for class or race has become immaterial, but to the qualifications and
disqualifications for naturalization as enumerated in Sections 2 and 4 of the statute.
Otherwise the requirement that the woman "might herself be lawfully naturalized"
would be meaningless surplusage, contrary to settled norms of statutory
construction.
The rule laid down by this Court in this and in other cases heretofore decided is
believed to be in line with the national policy of selective admission to Philippine

citizenship, which after all is a privilege granted only to those who are found worthy
thereof, and not indiscriminately to anybody at all on the basis alone of marriage to
a man who is a citizen of the Philippines, irrespective of moral character, ideological
beliefs, and identification with Filipino ideals, customs and traditions.
Appellee here having failed to prove that she has all the qualifications for
naturalization, even, indeed, that she has none of the disqualifications, she is not
entitled to recognition as a Philippine citizen.
In the second Ly Giok Ha, the Court further fortified the arguments in favor of the
same conclusion thus:
On cross-examination, she (Ly Giok Ha) failed to establish that: (1) she has been
residing in the Philippines for a continuous period of at least (10) years (p. 27, t.s.n.,
id.); (2) she has a lucrative trade, profession, or lawful occupation (p. 13, t.s.n., id.);
and (3) she can speak and write English, or any of the principal Philippine languages
(pp. 12, 13, t.s.n., id.).
While the appellant Immigration Commissioner contends that the words emphasized
indicate that the present Naturalization Law requires that an alien woman who
marries a Filipino husband must possess the qualifications prescribed by section 2 in
addition to not being disqualified under any of the eight ("a" to "h") subheadings of
section 4 of Commonwealth Act No. 473, in order to claim our citizenship by
marriage, both the appellee and the court below (in its second decision) sustain the
view that all that the law demands is that the woman be not disqualified under
section 4.
At the time the present case was remanded to the court of origin (1960) the
question at issue could be regarded as not conclusively settled, there being only the
concise pronouncement in Lee Suan Ay, et al. v. Galang, G. R. No. L-11855, Dec. 23,
1959, to the effect that:
The marriage of a Filipino citizen to an alien does not automatically confer Philippine
citizenship upon the latter. She must possess the qualifications required by law to
become a Filipino citizen by naturalization.
Since that time, however, a long line of decisions of this Court has firmly established
the rule that the requirement of section 15 of Commonwealth Act 473 (the
Naturalization Act), that an alien woman married to a citizen should be one who
"might herself be lawfully naturalized," means not only woman free from the
disqualifications enumerated in section 4 of the Act but also one who possesses the
qualifications prescribed by section 2 of Commonwealth Act 473 (San Tuan v.
Galang, L-18775, Nov. 30, 1963; Sun Peck Yong v. Com. of Immigration, L-20784,
Dee. 27, 1963; Tong Siok Sy v. Vivo, L-21136, Dec. 27, 1963; Austria v. Conchu, L20716, June 22, 1965; Choy King Tee v. Galang, L-18351, March 26, 1965; Brito v.
Com. of Immigration, L-16829, June 30, 1965).
Reflection will reveal why this must be so. The qualifications prescribed under
section 2 of the Naturalization Act, and the disqualifications enumerated in its
section 4 are not mutually exclusive; and if all that were to be required is that the

wife of a Filipino be not disqualified under section 4, the result might well be that
citizenship would be conferred upon persons in violation of the policy of the statute.
For example, section 4 disqualifies only
(c)

Polygamists or believers in the practice of polygamy; and

(d)

Persons convicted of crimes involving moral turpitude,

so that a blackmailer, or a maintainer of gambling or bawdy houses, not previously

convicted by a competent court would not be thereby disqualified; still, it is certain
that the law did not intend such person to be admitted as a citizen in view of the
requirement of section 2 that an applicant for citizenship "must be of good moral
character."
Similarly, the citizen's wife might be a convinced believer in racial supremacy, in
government by certain selected classes, in the right to vote exclusively by certain
"herrenvolk", and thus disbelieve in the principles underlying the Philippine
Constitution; yet she would not be disqualified under section 4, as long as she is not
"opposed to organized government," nor affiliated to groups "upholding or teaching
doctrines opposing all organized governments", nor "defending or teaching the
necessity or propriety of violence, personal assault or assassination for the success
or predominance of their ideas." Et sic de caeteris.
The foregoing instances should suffice to illustrate the danger of relying exclusively
on the absence of disqualifications, without taking into account the other affirmative
requirements of the law, which, in the case at bar, the appellee Ly Giok Ha
admittedly does not possess.
As to the argument that the phrase "might herself be lawfully naturalized" was
derived from the U.S. Revised Statutes (section 1994) and should be given the same
territorial and racial significance given to it by American courts, this Court has
rejected the same in Lon San Tuang v. Galang, L-18775, November 30, 1963; and in
Choy King Tee v. Galang, L-18351, March 26, 1965.
It is difficult to minimize the persuasive force of the foregoing rationalizations, but a
closer study thereof cannot bat reveal certain relevant considerations which
adversely affect the premises on which they are predicated, thus rendering the
conclusions arrived thereby not entirely unassailable.
1.
The main proposition, for instance, that in eliminating Section 1 of Act 2927
providing who are eligible for Philippine citizenship, the purpose of Commonwealth
Act 473, the Revised Naturalization Law, was to remove the racial requirements for
naturalization, thereby opening the door of Filipino nationality to Asiatics instead of
allowing the admission thereto of Caucasians only, suffers from lack of exact
accuracy. It is important to note, to start with, that Commonwealth Act 473 did away
with the whole Section 1 of Act 2927 which reads, thus:
SECTION 1. Who may become Philippine citizens. Philippine citizenship may be
acquired by: (a) natives of the Philippines who are not citizens thereof under the
Jones Law; (b) natives of the other Insular possessions of the United States; (c)

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

Rule for Naturalization of Aliens throughout the United States" contained no racial
disqualification requirement, except as to Chinese, the Act of May 6, 1882 not being
among the expressly repealed by this law, hence it is clear that when Act 2927 was
enacted, subdivision (e) of its Section 1 could not have had any connotation of racial
exclusion necessarily, even if it were traced back to its origin in the Act of the
United States Congress of 1912 already mentioned above. 16 Thus, it would seem
that the rationalization in the qouted decisions predicated on the theory that the
elimination of Section 1 of Act 2927 by Commonwealth Act 473 was purposely for
no other end than the abolition of racial discrimination in our naturalization law has
no clear factual basis. 17
3.
In view of these considerations, there appears to be no cogent reason why
the construction adopted in the opinions of the Secretary of Justice referred to in the
first Ly Giok Ha decision of the Chief Justice should not prevail. It is beyond dispute
that the first paragraph of Section 15 of Commonwealth Act 473 is a reenactment of
Section 13(a) of Act 2927, as amended by Act 3448, and that the latter is nothing
but an exact copy, deliberately made, of Section 1994 of the Raised Statutes of the
United States as it stood before its repeal in 1922. 18 Before such repeal, the
phrase "who might herself be lawfully naturalized" found in said Section 15 had a
definite unmistakable construction uniformly foIlowed in all courts of the United
States that had occasion to apply the same and which, therefore, must be
considered, as if it were written in the statute itself. It is almost trite to say that
when our legislators enacted said section, they knew of its unvarying construction
in the United States and that, therefore, in adopting verbatim the American statute,
they have in effect incorporated into the provision, as thus enacted, the
construction given to it by the American courts as well as the Attorney General of
the United States and all administrative authorities, charged with the
implementation of the naturalization and immigration laws of that country. (Lo
Cham v. Ocampo, 77 Phil., 635 [1946]; Laxamana v. Baltazar, 92 Phil., 32 [1952];
Hartley v. Commissioner, 295 U.S. 216, 79 L. ed. 1399, 55 S Ct. 756 [19353;
Helvering v. Winmill, 305 U.S. 79, 83 L ed. 52, 59 S Ct. 45 [1938]; Helvering v. R. J.
Reynolds Tobacco Co., 306 U.S. 110, 83 L ed. 536, 59 S Ct. 423 [1939]. [p. 32, Memo
of Amicus Curiae]).
A fairly comprehensive summary of the said construction by the American courts
and administrative authorities is contained in United States of America ex rel. Dora
Sejnensky v. Robert E. Tod, Commissioner of Immigration, Appt., 295 Fed. 523,
decided November 14, 1922, 26 A. L. R. 1316 as follows:
Section 1994 of the Revised Statutes (Comp. Stat. 3948, 2 Fed. Sta. Anno. 2d ed. p.
117) provides as follows: "Any woman who is now or may hereafter be married to a
citizen of the United States, and who might herself be lawfully naturalized, shall be
deemed a citizen."
Section 1944 of the Revised Stat. is said to originate in the Act of Congress of
February 10, 1855 (10 Stat. at L. 604, chap. 71), which in its second section
provided "that any woman, who might lawfully be naturalized under the existing
laws, married, or who shall be married to a citizen of the United States, shall be
deemed and taken to be a citizen."

And the American Statute of 1855 is substantially a copy of the earlier British
Statute 7 & 8 Vict. chap. 66, s 16, 1844, which provided that "any woman married,
or who shall be married, to a natural-born subject or person naturalized, shall be
deemed and taken to be herself naturalized, and have all the rights and privileges
of a natural born subject."
The Act of Congress of September 22, 1922 (42 Stat. at L. 1021, chap. 411, Comp.
Stat. 4358b, Fed. Stat. Anno. Supp. 1922, p. 255), being "An Act Relative to the
Naturalization and Citizenship of Married Women," in 2, provides "that any woman
who marries a citizen of the United States after the passage of this Act, ... shall not
become a citizen of the United States by reason of such marriage ..."
Section 6 of the act also provides "that 1994 of the Revised Statutes ... are
repealed."
Section 6 also provides that `such repeal shall not terminate citizenship acquired or
retained under either of such sections, ..." meaning 2 and 6. So that this Act of
September 22, 1922, has no application to the facts of the present case, as the
marriage of the relator took place prior to its passage. This case, therefore, depends
upon the meaning to be attached to 1994 of the Revised Statutes.
In 1868 the Supreme Court, in Kelly v. Owen, 7 Wall. 496, 498, 19 L. ed. 283, 284,
construed this provision as found in the Act of 1855 as follows: "The term, "who
might lawfully be naturalized under the existing laws," only limits the application of
the law to free white women. The previous Naturalization Act, existing at the time,
only required that the person applying for its benefits should be "a free white
person," and not an alien enemy."
This construction limited the effect of the statute to those aliens who belonged to
the class or race which might be lawfully naturalized, and did not refer to any of the
other provisions of the naturalization laws as to residence or moral character, or to
any of the provisions of the immigration laws relating to the exclusion or
deportation of aliens.
In 1880, in Leonard v. Grant (C. C.) 5 Fed. 11, District Judge Deady also construed
the Act of 1855, declaring that "any woman who is now or may hereafter be married
to a citizen of the United States, and might herself be lawfully naturalized, shall be
deemed a citizen." He held that "upon the authorities, and the reason, if not the
necessity, of the case," the statute must be construed as in effect declaring that an
alien woman, who is of the class or race that may be lawfully naturalized under the
existing laws, and who marries a citizen of the United States, is such a citizen also,
and it was not necessary that it should appear affirmatively that she possessed the
other qualifications at the time of her marriage to entitle her to naturalization.
In 1882, the Act of 1855 came before Mr. Justice Harlan, sitting in the circuit court,
in United States v. Kellar, 13 Fed. 82. An alien woman, a subject of Prussia came to
the United States and married here a naturalized citizen. Mr. Justice Harlan, with the
concurrence of Judge Treat, held that upon her marriage she became ipso facto a
citizen of the United States as fully as if she had complied with all of the provisions
of the statutes upon the subject of naturalization. He added: "There can be no doubt

of this, in view of the decision of the Supreme Court of the United, States in Kelly v.
Owen, 7 Wall. 496, 19 L. ed. 283." The alien "belonged to the class of persons" who
might be lawfully naturalized.
In 1904, in Hopkins v. Fachant, 65 C. C. A. 1, 130 Fed. 839, an alien woman came to
the United States from France and entered the country contrary to the immigration
laws. The immigration authorities took her into custody at the port of New York, with
the view of deporting her. She applied for her release under a writ of habeas corpus,
and pending the disposition of the matter she married a naturalized American
citizen. The circuit court of appeals for the ninth Circuit held, affirming the court
below, that she was entitled to be discharged from custody. The court declared:
"The rule is well settled that her marriage to a naturalized citizen of the United
States entitled her to be discharged. The status of the wife follows that of her
husband, ... and by virtue of her marriage her husband's domicil became her
domicil." .
In 1908, the circuit court for the district of Rhode Island in Re Rustigian, 165. Fed.
980, had before it the application of a husband for his final decree of naturalization.
It appeared that at that time his wife was held by the immigration authorities at
New York on the ground that she was afflicted with a dangerous and contagious
disease. Counsel on both sides agreed that the effect of the husband's
naturalization would be to confer citizenship upon the wife. In view of that
contingency District Judge Brown declined to pass upon the husband's application
for naturalization, and thought it best to wait until it was determined whether the
wife's disease was curable. He placed his failure to act on the express ground that
the effect of naturalizing the husband might naturalize her. At the same time he
express his opinion that the husband's naturalization would not effect her
naturalization, as she was not one who could become lawfully naturalized. "Her own
capacity (to become naturalized)," the court stated "is a prerequisite to her
attaining citizenship. If herself lacking in that capacity, the married status cannot
confer it upon her." Nothing, however, was actually decided in that case, and the
views expressed therein are really nothing more than mere dicta. But, if they can be
regarded as something more than that, we find ourselves, with all due respect for
the learned judge, unable to accept them.
In 1909, in United States ex rel. Nicola v. Williams, 173 Fed. 626, District Judge
Learned Hand held that an alien woman, a subject of the Turkish Empire, who
married an American citizen while visiting Turkey, and then came to the United
States, could not be excluded, although she had, at the time of her entry, a disease
which under the immigration laws would have been sufficient ground for her
exclusion, if she bad not had the status of a citizen. The case was brought into this
court on appeal, and in 1911 was affirmed, in 106 C. C. A. 464, 184 Fed. 322. In that
case, however at the time the relators married, they might have been lawfully
naturalized, and we said: "Even if we assume the contention of the district attorney
to be correct that marriage will not make a citizen of a woman who would be
excluded under our immigration laws, it does not affect these relators."
We held that, being citizens, they could not be excluded as aliens; and it was also
said to be inconsistent with the policy of our law that the husband should be a
citizen and the wife an alien. The distinction between that case and the one now

before the court is that, in the former case, the marriage took place before any
order of exclusion had been made, while in this the marriage was celebrated after
such an order was made. But such an order is a mere administrative provision, and
has not the force of a judgment of a court, and works no estoppel. The
administrative order is based on the circumstances that existed at the time the
order of exclusion was made. If the circumstances change prior to the order being
carried into effect, it cannot be executed. For example, if an order of exclusion
should be based on the ground that the alien was at the time afflicted with a
contagious disease, and it should be made satisfactorily to appear, prior to actual
deportation, that the alien had entirely recovered from the disease, we think it plain
that the order could not be carried into effect. So, in this case, if, after the making of
the order of exclusion and while she is permitted temporarily to remain, she in good
faith marries an American citizen, we cannot doubt the validity of her marriage, and
that she thereby acquired, under international law and under 1994 of the Revised
Statutes, American citizenship, and ceased to be an alien. There upon, the
immigration authorities lost their jurisdiction over her, as that jurisdiction applies
only to aliens, and not to citizens.
In 1910, District Judge Dodge, in Ex parte Kaprielian, 188 Fed. 694, sustained the
right of the officials to deport a woman under the following circumstances: She
entered this country in July, 1910, being an alien and having been born in Turkey.
She was taken into custody by the immigration authorities in the following
September, and in October a warrant for her deportation was issued. Pending
hearings as to the validity of that order, she was paroled in the custody of her
counsel. The ground alleged for her deportation was that she was afflicted with a
dangerous and contagious disease at the time of her entry. One of the reasons
assigned to defeat deportation was that the woman had married a citizen of the
United States pending the proceedings for her deportation. Judge Dodge declared
himself unable to believe that a marriage under such circumstances "is capable of
having the effect claimed, in view of the facts shown." He held that it was no part of
the intended policy of 1994 to annul or override the immigration laws, so as to
authorize the admission into the country of the wife of a naturalized alien not
otherwise entitled to enter, and that an alien woman, who is of a class of persons
excluded by law from admission to the United States does not come within the
provisions of that section. The court relied wholly upon the dicta contained in the
Rustigian Case. No other authorities were cited.
In 1914, District Judge Neterer, in Ex parte Grayson, 215 Fed. 449, construed 1994
and held that where, pending proceedings to deport an alien native of France as an
alien prostitute, she was married to a citizen of the United States, she thereby
became a citizen, and was not subject to deportation until her citizenship was
revoked by due process of law. It was his opinion that if, as was contended, her
marriage was conceived in fraud, and was entered into for the purpose of evading
the immigration laws and preventing her deportation, such fact should be
established in a court of competent jurisdiction in an action commenced for the
purpose. The case was appealed and the appeal was dismissed. 134 C. C. A. 666,
219 Fed. 1022.
It is interesting also to observe the construction placed upon the language of the
statute by the Department of Justice. In 1874, Attorney General Williams, 14 Ops.

Atty. Gen. 402, passing upon the Act of February 10, 1855, held that residence
within the United States for the period required by the naturalization laws was riot
necessary in order to constitute an alien woman a citizen, she having married a
citizen of the United States abroad, although she never resided in the United States,
she and her husband having continued to reside abroad after the marriage.
In 1909, a similar construction was given to the Immigration Act of May 5, 1907, in
an opinion rendered by Attorney General Wickersham. It appeared an unmarried
woman, twenty-eight years of age and a native of Belgium, arrived in New York and
went at once to a town in Nebraska, where she continued to reside. About fifteen
months after her arrival she was taken before a United States commissioner by way
of instituting proceedings under the Immigration Act (34 Stat. at L. 898, chap. 1134,
Comp. Stat. 4242, 3 Fed. Stat. Anno. 2d ed. p. 637) for her deportation, on the
ground that she had entered this country for the purpose of prostitution, and had
been found an inmate of a house of prostitution and practicing the same within
three years after landing. It appeared, however, that after she was taken before the
United States commissioner, but prior to her arrest under a warrant by the
Department of Justice, she was lawfully married to a native-born citizen of the
United States. The woman professed at the time of her marriage an intention to
abandon her previous mode of life and to remove with her husband to his home in
Pennsylvania. He knew what her mode of life had been, but professed to believe in
her good intentions. The question was raised as to the right to deport her, the claim
being advance that by her marriage she bad become an American citizen and
therefore could not be deported. The Attorney General ruled against the right to
deport her as she had become an American citizen. He held that the words, "who
might herself be lawfully naturalized," refer to a class or race who might be lawfully
naturalized, and that compliance with the other conditions of the naturalization laws
was not required. 27 Ops. Atty. Gen. 507.
Before concluding this opinion, we may add that it has not escaped our observation
that Congress, in enacting the Immigration Act of 1917, so as to provide, in 19, "that
the marriage to an American citizen of a female of the sexually immoral classes ...
shall not invest such female with United States citizenship if the marriage of such
alien female shall be solemnized after her arrest or after the commission of acts
which make her liable to deportation under this act."
Two conclusions seem irresistibly to follow from the above change in the law:
(1)
Congress deemed legislation essential to prevent women of the immoral class
avoiding deportation through the device of marrying an American citizen.
(2)
If Congress intended that the marriage of an American citizen with an alien
woman of any other of the excluded classes, either before or after her detention,
should not confer upon her American citizenship, thereby entitling her to enter the
country, its intention would have been expressed, and 19 would not have been
confined solely to women of the immoral class.
Indeed, We have examined all the leading American decisions on the subject and
We have found no warrant for the proposition that the phrase "who might herself be
lawfully naturalized" in Section 1994 of the Revised Statutes was meant solely as a

racial bar, even if loose statements in some decisions and other treaties and other
writings on the subject would seem to give such impression. The case of Kelley v.
Owen, supra, which appears to be the most cited among the first of the decisions 19
simply held:
As we construe this Act, it confers the privileges of citizenship upon women married
to citizens of the United States, if they are of the class of persons for whose
naturalization the previous Acts of Congress provide. The terms "married" or "who
shall be married," do not refer in our judgment, to the time when the ceremony of
marriage is celebrated, but to a state of marriage. They mean that, whenever a
woman, who under previous Acts might be naturalized, is in a state of marriage to a
citizen, whether his citizenship existed at the passage of the Act or subsequently, or
before or after the marriage, she becomes, by that fact, a citizen also. His
citizenship, whenever it exists, confers, under the Act, citizenship upon her. The
construction which would restrict the Act to women whose husbands, at the time of
marriage, are citizens, would exclude far the greater number, for whose benefit, as
we think, the Act was intended. Its object, in our opinion, was to allow her
citizenship to follow that of her husband, without the necessity of any application for
naturalization on her part; and, if this was the object, there is no reason for the
restriction suggested.
The terms, "who might lawfully be naturalized under the existing laws," only limit
the application of the law to free white women. The previous Naturalization Act,
existing at the time only required that the person applying for its benefits should be
"a free white person," and not an alien enemy. Act of April 14th, 1802, 2 Stat. at L.
153.
A similar construction was given to the Act by the Court of Appeals of New York, in
Burton v. Burton, 40 N. Y. 373; and is the one which gives the widest extension to its
provisions.
Note that write the court did say that "the terms, "who might lawfully be naturalized
under existing laws" only limit the application to free white women" 20 it hastened
to add that "the previous Naturalization Act, existing at the time, ... required that
the person applying for its benefits should be (not only) a "free white person" (but
also) ... not an alien enemy." This is simply because under the Naturalization Law of
the United States at the time the case was decided, the disqualification of enemy
aliens had already been removed by the Act of July 30, 1813, as may be seen in the
corresponding footnote hereof anon. In other words, if in the case of Kelly v. Owen
only the race requirement was mentioned, the reason was that there was no other
non-racial requirement or no more alien enemy disqualification at the time; and this
is demonstrated by the fact that the court took care to make it clear that under the
previous naturalization law, there was also such requirement in addition to race.
This is impotent, since as stated in re Rustigian, 165 Fed. Rep. 980, "The expression
used by Mr. Justice Field, (in Kelly v. Owen) the terms "who might lawfully be
naturalized under existing laws" only limit the application of the law to free white
women, must be interpreted in the application to the special facts and to the
incapacities under the then existing laws," (at p. 982) meaning that whether or not
an alien wife marrying a citizen would be a citizen was dependent, not only on her
race and nothing more necessarily, but on whether or not there were other

disqualifications under the law in force at the time of her marriage or the
naturalization of her husband.
4.
As already stated, in Lo San Tuang, Choy King Tee and the second Ly Giok Ha,
the Court drew the evidence that because Section 1 of Act 2927 was eliminated by
Commonwealth Act 473, it follows that in place of the said eliminated section
particularly its subdivision (c), being the criterion of whether or not an alien wife
"may be lawfully naturalized," what should be required is not only that she must not
be disqualified under Section 4 but that she must also possess the qualifications
enumerated in Section 2, such as those of age, residence, good moral character,
adherence to the underlying principles of the Philippine Constitution, irreproachable
conduct, lucrative employment or ownership of real estate, capacity to speak and
write English or Spanish and one of the principal local languages, education of
children in certain schools, etc., thereby implying that, in effect, sails Section 2 has
been purposely intended to take the place of Section 1 of Act 2927. Upon further
consideration of the proper premises, We have come, to the conclusion that such
inference is not sufficiently justified.
To begin with, nothing extant in the legislative history, which We have already
explained above of the mentioned provisions has been shown or can be shown to
indicate that such was the clear intent of the legislature. Rather, what is definite is
that Section 15 is, an exact copy of Section 1994 of the Revised Statutes of the
United States, which, at the time of the approval of Commonwealth Act 473 had
already a settled construction by American courts and administrative authorities.
Secondly, as may be gleaned from the summary of pertinent American decisions
quoted above, there can be no doubt that in the construction of the identically
worded provision in the Revised Statutes of the United States, (Section 1994, which
was taken, from the Act of February 10, 1855) all authorities in the United States are
unanimously agreed that the qualifications of residence, good moral character,
adherence to the Constitution, etc. are not supposed to be considered, and that the
only eligibility to be taken into account is that of the race or class to which the
subject belongs, the conceptual scope of which, We have just discussed. 21 In the
very case of Leonard v. Grant, supra, discussed by Justice Regala in Lo San Tuang,
the explanation for such posture of the American authorities was made thus:
The phrase, "shall be deemed a citizen" in section 1994 Rev. St., or as it was in the
Act of 1855, supra, "shall be deemed and taken to be a citizen" while it may imply
that the person to whom it relates has not actually become a citizen by ordinary
means or in the usual way, as by the judgment of a competent court, upon a proper
application and proof, yet it does not follow that such person is on that account
practically any the less a citizen. The word "deemed" is the equivalent of
"considered" or "judged"; and, therefore, whatever an act of Congress requires to be
"deemed" or "taken" as true of any person or thing, must, in law, be considered as
having been duly adjudged or established concerning "such person or thing, and
have force and effect accordingly. When, therefore, Congress declares that an alien
woman shall, under certain circumstances, be "deemed' an American citizen, the
effect when the contingency occurs, is equivalent to her being naturalized directly
by an act of Congress, or in the usual mode thereby prescribed.

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

Act 2927 was eliminated, but that it continued insisting on using it even after the
Americans had amended their law in order to provide for what is now contended to
be the construction that should be given to the phrase in question. Stated
differently, had our legislature adopted a phrase from an American statute before
the American courts had given it a construction which was acquiesced to by those
given upon to apply the same, it would be possible for Us to adopt a construction
here different from that of the Americans, but as things stand, the fact is that our
legislature borrowed the phrase when there was already a settled construction
thereof, and what is more, it appears that our legislators even ignored the
modification of the American law and persisted in maintaining the old phraseology.
Under these circumstances, it would be in defiance of reason and the principles of
Statutory construction to say that Section 15 has a nationalistic and selective
orientation and that it should be construed independently of the previous American
posture because of the difference of circumstances here and in the United States. It
is always safe to say that in the construction of a statute, We cannot fall on possible
judicial fiat or perspective when the demonstrated legislative point of view seems to
indicate otherwise.
5.
Viewing the matter from another angle, there is need to emphasize that in
reality and in effect, the so called racial requirements, whether under the American
laws or the Philippine laws, have hardly been considered as qualifications in the
same sense as those enumerated in Section 3 of Act 2927 and later in Section 2 of
Commonwealth Act 473. More accurately, they have always been considered as
disqualifications, in the sense that those who did not possess them were the ones
who could not "be lawfully naturalized," just as if they were suffering from any of
the disqualifications under Section 2 of Act 2927 and later those under Section 4 of
Commonwealth Act 473, which, incidentally, are practically identical to those in the
former law, except those in paragraphs (f) and (h) of the latter. 22 Indeed, such is
the clear impression anyone will surely get after going over all the American
decisions and opinions quoted and/or cited in the latest USCA (1970), Title 8,
section 1430, pp. 598-602, and the first decisions of this Court on the matter, Ly
Giok Ha (1959) and Ricardo Cua, citing with approval the opinions of the secretary
of Justice. 23 Such being the case, that is, that the so-called racial requirements
were always treated as disqualifications in the same light as the other
disqualifications under the law, why should their elimination not be viewed or
understood as a subtraction from or a lessening of the disqualifications? Why should
such elimination have instead the meaning that what were previously considered as
irrelevant qualifications have become disqualifications, as seems to be the import of
the holding in Choy King Tee to the effect that the retention in Section 15 of
Commonwealth Act 473 of the same language of what used to be Section 13 (a) of
Act 2927 (as amended by Act 3448), notwithstanding the elimination of Section 1 of
the latter, necessarily indicates that the legislature had in mind making the phrase
in question "who may be lawfully naturalized" refer no longer to any racial
disqualification but to the qualification under Section 2 of Commonwealth Act 473?
Otherwise stated, under Act 2927, there were two groups of persons that could not
be naturalized, namely, those falling under Section 1 and those falling under Section
2, and surely, the elimination of one group, i.e. those belonging to Section 1, could
not have had, by any process of reasoning, the effect of increasing, rather than
decreasing, the disqualifications that used to be before such elimination. We cannot
see by what alchemy of logic such elimination could have convicted qualifications

into disqualifications specially in the light of the fact that, after all, these are
disqualifications clearly set out as such in the law distinctly and separately from
qualifications and, as already demonstrated, in American jurisprudence,
qualifications had never been considered to be of any relevance in determining
"who might be lawfully naturalized," as such phrase is used in the statute governing
the status of alien wives of American citizens, and our law on the matter was merely
copied verbatim from the American statutes.
6.
In addition to these arguments based on the applicable legal provisions and
judicial opinions, whether here or in the United States, there are practical
considerations that militate towards the same conclusions. As aptly stated in the
motion for reconsideration of counsel for petitioner-appellee dated February 23,
1967, filed in the case of Zita Ngo Burca v. Republic, supra:
Unreasonableness of requiring alien wife to prove "qualifications"
There is one practical consideration that strongly militates against a construction
that Section 15 of the law requires that an alien wife of a Filipino must affirmatively
prove that she possesses the qualifications prescribed under Section 2, before she
may be deemed a citizen. Such condition, if imposed upon an alien wife, becomes
unreasonably onerous and compliance therewith manifestly difficult. The
unreasonableness of such requirement is shown by the following:
1.
One of the qualifications required of an Applicant for naturalization under
Section 2 of the law is that the applicant "must have resided in the Philippines for a
continuous period of not less than ten years." If this requirement is applied to an
alien wife married to a Filipino citizen, this means that for a period of ten years at
least, she cannot hope to acquire the citizenship of her husband. If the wife happens
to be a citizen of a country whose law declares that upon her marriage to a
foreigner she automatically loses her citizenship and acquires the citizenship of her
husband, this could mean that for a period of ten years at least, she would be
stateless. And even after having acquired continuous residence in the Philippines for
ten years, there is no guarantee that her petition for naturalization will be granted,
in which case she would remain stateless for an indefinite period of time.
2.
Section 2 of the law likewise requires of the applicant for naturalization that
he "must own real estate in the Philippines worth not less than five thousand pesos,
Philippine currency, or must have some known lucrative trade, profession, or lawful
occupation." Considering the constitutional prohibition against acquisition by an
alien of real estate except in cases of hereditary succession (Art. XIII, Sec. 5,
Constitution), an alien wife desiring to acquire the citizenship of her husband must
have to prove that she has a lucrative income derived from a lawful trade,
profession or occupation. The income requirement has been interpreted to mean
that the petitioner herself must be the one to possess the said income. (Uy v.
Republic, L-19578, Oct. 27, 1964; Tanpa Ong vs. Republic, L-20605, June 30, 1965;
Li Tong Pek v. Republic, L-20912, November 29, 1965). In other words, the wife must
prove that she has a lucrative income derived from sources other than her
husband's trade, profession or calling. It is of common knowledge, and judicial
notice may be taken of the fact that most wives in the Philippines do not have
gainful occupations of their own. Indeed, Philippine law, recognizing the

dependence of the wife upon the husband, imposes upon the latter the duty of
supporting the former. (Art. 291, Civil Code). It should be borne in mind that
universally, it is an accepted concept that when a woman marries, her primary duty
is to be a wife, mother and housekeeper. If an alien wife is not to be remiss in this
duty, how can she hope to acquire a lucrative income of her own to qualify her for
citizenship?
3.
Under Section 2 of the law, the applicant for naturalization "must have
enrolled his minor children of school age, in any of the public schools or private
schools recognized by the Office of the Private Education of the Philippines, where
Philippine history, government and civics are taught or prescribed as part of the
school curriculum during the entire period of residence in the Philippines required of
him prior to the hearing of his petition for naturalization as Philippine citizen." If an
alien woman has minor children by a previous marriage to another alien before she
marries a Filipino, and such minor children had not been enrolled in Philippine
schools during her period of residence in the country, she cannot qualify for
naturalization under the interpretation of this Court. The reason behind the
requirement that children should be enrolled in recognized educational institutions
is that they follow the citizenship of their father. (Chan Ho Lay v. Republic, L-5666,
March 30, 1954; Tan Hi v. Republic, 88 Phil. 117 [1951]; Hao Lian Chu v. Republic, 87
Phil. 668 [1950]; Yap Chin v. Republic, L-4177, May 29, 1953; Lim Lian Hong v.
Republic, L-3575, Dec. 26, 1950). Considering that said minor children by her first
husband generally follow the citizenship of their alien father, the basis for such
requirement as applied to her does not exist. Cessante ratione legis cessat ipsa lex.
4.
Under Section 3 of the law, the 10-year continuous residence prescribed by
Section 2 "shall be understood as reduced to five years for any petitioner (who is)
married to a Filipino woman." It is absurd that an alien male married to a Filipino
wife should be required to reside only for five years in the Philippines to qualify for
citizenship, whereas an alien woman married to a Filipino husband must reside for
ten years.
Thus under the interpretation given by this Court, it is more difficult for an alien wife
related by marriage to a Filipino citizen to become such citizen, than for a foreigner
who is not so related. And yet, it seems more than clear that the general purpose of
the first paragraph of Section 15 was obviously to accord to an alien woman, by
reason of her marriage to a Filipino, a privilege not similarly granted to other aliens.
It will be recalled that prior to the enactment of Act No. 3448 in 1928, amending Act
No. 2927 (the old Naturalization Law), there was no law granting any special
privilege to alien wives of Filipinos. They were treated as any other foreigner. It was
precisely to remedy this situation that the Philippine legislature enacted Act No.
3448. On this point, the observation made by the Secretary of Justice in 1941 is
enlightening:
It is true that under, Article 22 of the (Spanish) Civil Code, the wife follows the
nationality of the husband; but the Department of State of the United States on
October 31, 1921, ruled that the alien wife of a Filipino citizen is not a Filipino
citizen, pointing out that our Supreme Court in the leading case of Roa v. Collector
of Customs (23 Phil. 315) held that Articles 17 to 27 of the Civil Code being political
have been abrogated upon the cession of the Philippine Islands to the United States.

Accordingly, the stated taken by the Attorney-General prior to the envictment of Act
No. 3448, was that marriage of alien women to Philippine citizens did not make the
former citizens of this counting. (Op. Atty. Gen., March 16, 1928) .
To remedy this anomalous condition, Act No. 3448 was enacted in 1928 adding
section 13(a) to Act No. 2927 which provides that "any woman who is now or may
hereafter be married to a citizen of the Philippine Islands, and who might herself be
lawfully naturalized, shall be deemed a citizen of the Philippine Islands. (Op. No. 22,
s. 1941; emphasis ours).
If Section 15 of the, Revised Naturalization Law were to be interpreted, as this Court
did, in such a way as to require that the alien wife must prove the qualifications
prescribed in Section 2, the privilege granted to alien wives would become illusory.
It is submitted that such a construction, being contrary to the manifested object of
the statute must be rejected.
A statute is to be construed with reference to its manifest object, and if the
language is susceptible of two constructions, one which will carry out and the other
defeat such manifest object, it should receive the former construction. (In re
National Guard, 71 Vt. 493, 45 A. 1051; Singer v. United States, 323 U.S. 338, 89 L.
ed. 285. See also, U.S. v. Navarro, 19 Phil. 134 [1911]; U. S. v. Toribio, 15 Phil. 85
[1910).
... A construction which will cause objectionable results should be avoided and the
court will, if possible, place on the statute a construction which will not result in
injustice, and in accordance with the decisions construing statutes, a construction
which will result in oppression, hardship, or inconveniences will also be avoided, as
will a construction which will prejudice public interest, or construction resulting in
unreasonableness, as well as a construction which will result in absurd
consequences.
So a construction should, if possible, be avoided if the result would be an apparent
inconsistency in legislative intent, as has been determined by the judicial decisions,
or which would result in futility, redundancy, or a conclusion not contemplated by
the legislature; and the court should adopt that construction which will be the least
likely to produce mischief. Unless plainly shown to have been the intention of the
legislature, an interpretation which would render the requirements of the statute
uncertain and vague is to be avoided, and the court will not ascribe to the
legislature an intent to confer an illusory right. ... (82 C.J.S., Statutes, sec. 326, pp.
623-632).
7.
In Choy King Tee and the second Ly Giok Ha, emphasis was laid on the need
for aligning the construction of Section 15 with "the national policy of selective
admission to Philippine citizenship." But the question may be asked, is it reasonable
to suppose that in the pursuit of such policy, the legislature contemplated to make
it more difficult if not practically impossible in some instances, for an alien woman
marrying a Filipino to become a Filipina than any ordinary applicant for
naturalization, as has just been demonstrated above? It seems but natural and
logical to assume that Section 15 was intended to extend special treatment to alien
women who by marrying a Filipino irrevocably deliver themselves, their possessions,

their fate and fortunes and all that marriage implies to a citizen of this country, "for
better or for worse." Perhaps there can and will be cases wherein the personal
conveniences and benefits arising from Philippine citizenship may motivate such
marriage, but must the minority, as such cases are bound to be, serve as the
criterion for the construction of law? Moreover, it is not farfetched to believe that in
joining a Filipino family the alien woman is somehow disposed to assimilate the
customs, beliefs and ideals of Filipinos among whom, after all, she has to live and
associate, but surely, no one should expect her to do so even before marriage.
Besides, it may be considered that in reality the extension of citizenship to her is
made by the law not so much for her sake as for the husband. Indeed, We find the
following observations anent the national policy rationalization in Choy King Tee and
Ly Giok Ha (the second) to be quite persuasive:
We respectfully suggest that this articulation of the national policy begs the
question. The avowed policy of "selectives admission" more particularly refers to a
case where citizenship is sought to be acquired in a judicial proceeding for
naturalization. In such a case, the courts should no doubt apply the national policy
of selecting only those who are worthy to become citizens. There is here a choice
between accepting or rejecting the application for citizenship. But this policy finds
no application in cases where citizenship is conferred by operation of law. In such
cases, the courts have no choice to accept or reject. If the individual claiming
citizenship by operation of law proves in legal proceedings that he satisfies the
statutory requirements, the courts cannot do otherwise than to declare that he is a
citizen of the Philippines. Thus, an individual who is able to prove that his father is a
Philippine citizen, is a citizen of the Philippines, "irrespective of his moral character,
ideological beliefs, and identification with Filipino ideals, customs, and traditions." A
minor child of a person naturalized under the law, who is able to prove the fact of
his birth in the Philippines, is likewise a citizen, regardless of whether he has
lucrative income, or he adheres to the principles of the Constitution. So it is with an
alien wife of a Philippine citizen. She is required to prove only that she may herself
be lawfully naturalized, i.e., that she is not one of the disqualified persons
enumerated in Section 4 of the law, in order to establish her citizenship status as a
fact.
A paramount policy consideration of graver import should not be overlooked in this
regard, for it explains and justifies the obviously deliberate choice of words. It is
universally accepted that a State, in extending the privilege of citizenship to an
alien wife of one of its citizens could have had no other objective than to maintain a
unity of allegiance among the members of the family. (Nelson v. Nelson, 113 Neb.
453, 203 N. W. 640 [1925]; see also "Convention on the Nationality of Married
Women: Historical Background and Commentary." UNITED NATIONS, Department of
Economic and Social Affairs E/CN, 6/399, pp. 8 et seq.). Such objective can only be
satisfactorily achieved by allowing the wife to acquire citizenship derivatively
through the husband. This is particularly true in the Philippines where tradition and
law has placed the husband as head of the family, whose personal status and
decisions govern the life of the family group. Corollary to this, our laws look with
favor on the unity and solidarity of the family (Art. 220, Civil Code), in whose
preservation of State as a vital and enduring interest. (See Art. 216, Civil Code).
Thus, it has been said that by tradition in our country, there is a theoretic identity of
person and interest between husband and wife, and from the nature of the relation,

the home of one is that of the other. (See De la Via v. Villareal, 41 Phil. 13). It
should likewise be said that because of the theoretic identity of husband and wife,
and the primacy of the husband, the nationality of husband should be the
nationality of the wife, and the laws upon one should be the law upon the other. For
as the court, in Hopkins v. Fachant (9th Cir., 1904) 65 C.C.A., 1, 130 Fed. 839, held:
"The status of the wife follows that of the husband, ... and by virtue of her marriage
her husband's domicile became her domicile." And the presumption under Philippine
law being that the property relations of husband and wife are under the regime of
conjugal partnership (Art. 119, Civil Code), the income of one is also that of the
other.
It is, therefore, not congruent with our cherished traditions of family unity and
identity that a husband should be a citizen and the wife an alien, and that the
national treatment of one should be different from that of the other. Thus, it cannot
be that the husband's interests in property and business activities reserved by law
to citizens should not form part of the conjugal partnership and be denied to the
wife, nor that she herself cannot, through her own efforts but for the benefit of the
partnership, acquire such interests. Only in rare instances should the identity of
husband and wife be refused recognition, and we submit that in respect of our
citizenship laws, it should only be in the instances where the wife suffers from the
disqualifications stated in Section 4 of the Revised Naturalization Law. (Motion for
Reconsideration, Burca vs. Republic, supra.)
With all these considerations in mind, We are persuaded that it is in the best
interest of all concerned that Section 15 of the Naturalization Law be given effect in
the same way as it was understood and construed when the phrase "who may be
lawfully naturalized," found in the American statute from which it was borrowed and
copied verbatim, was applied by the American courts and administrative authorities.
There is merit, of course in the view that Philippine statutes should be construed in
the light of Philippine circumstances, and with particular reference to our
naturalization laws. We should realize the disparity in the circumstances between
the United States, as the so-called "melting pot" of peoples from all over the world,
and the Philippines as a developing country whose Constitution is nationalistic
almost in the come. Certainly, the writer of this opinion cannot be the last in rather
passionately insisting that our jurisprudence should speak our own concepts and
resort to American authorities, to be sure, entitled to admiration, and respect,
should not be regarded as source of pride and indisputable authority. Still, We
cannot close our eyes to the undeniable fact that the provision of law now under
scrutiny has no local origin and orientation; it is purely American, factually taken
bodily from American law when the Philippines was under the dominating influence
of statutes of the United States Congress. It is indeed a sad commentary on the
work of our own legislature of the late 1920's and 1930's that given the opportunity
to break away from the old American pattern, it took no step in that direction.
Indeed, even after America made it patently clear in the Act of Congress of
September 22, 1922 that alien women marrying Americans cannot be citizens of the
United States without undergoing naturalization proceedings, our legislators still
chose to adopt the previous American law of August 10, 1855 as embodied later in
Section 1994 of the Revised Statutes of 1874, Which, it is worth reiterating, was
consistently and uniformly understood as conferring American citizenship to alien
women marrying Americans ipso facto, without having to submit to any

naturalization proceeding and without having to prove that they possess the special
qualifications of residence, moral character, adherence to American ideals and
American constitution, provided they show they did not suffer from any of the
disqualifications enumerated in the American Naturalization Law. Accordingly, We
now hold, all previous decisions of this Court indicating otherwise notwithstanding,
that under Section 15 of Commonwealth Act 473, an alien woman marrying a
Filipino, native born or naturalized, becomes ipso facto a Filipina provided she is not
disqualified to be a citizen of the Philippines under Section 4 of the same law.
Likewise, an alien woman married to an alien who is subsequently naturalized here
follows the Philippine citizenship of her husband the moment he takes his oath as
Filipino citizen, provided that she does not suffer from any of the disqualifications
under said Section 4.
As under any other law rich in benefits for those coming under it, doubtless there
will be instances where unscrupulous persons will attempt to take advantage of this
provision of law by entering into fake and fictitious marriages or mala fide
matrimonies. We cannot as a matter of law hold that just because of these
possibilities, the construction of the provision should be otherwise than as dictated
inexorably by more ponderous relevant considerations, legal, juridical and practical.
There can always be means of discovering such undesirable practice and every case
can be dealt with accordingly as it arises.
III.
The third aspect of this case requires necessarily a re-examination of the ruling of
this Court in Burca, supra, regarding the need of judicial naturalization proceedings
before the alien wife of a Filipino may herself be considered or deemed a Filipino. If
this case which, as already noted, was submitted for decision in 1964 yet, had only
been decided earlier, before Go Im Ty, the foregoing discussions would have been
sufficient to dispose of it. The Court could have held that despite her apparent lack
of qualifications, her marriage to her co-petitioner made her a Filipina, without her
undergoing any naturalization proceedings, provided she could sustain, her claim
that she is not disqualified under Section 4 of the law. But as things stand now, with
the Burca ruling, the question We have still to decide is, may she be deemed a
Filipina without submitting to a naturalization proceeding?
Naturally, if Burca is to be followed, it is clear that the answer to this question must
necessarily be in the affirmative. As already stated, however, the decision in Burca
has not yet become final because there is still pending with Us a motion for its
reconsideration which vigorously submits grounds worthy of serious consideration
by this Court. On this account, and for the reasons expounded earlier in this opinion,
this case is as good an occasion as any other to re-examine the issue.
In the said decision, Justice Sanchez held for the Court:
We accordingly rule that: (1) An alien woman married to a Filipino who desires to be
a citizen of this country must apply therefore by filing a petition for citizenship
reciting that she possesses all the qualifications set forth in Section 2 and none of
the disqualifications under Section 4, both of the Revised Naturalization Law; (2)
Said petition must be filed in the Court of First Instance where petitioner has resided

at least one year immediately preceding the filing of the petition; and (3) Any action
by any other office, agency, board or official, administrative or otherwise other
than the judgment of a competent court of justice certifying or declaring that an
alien wife of the Filipino citizen is also a Filipino citizen, is hereby declared null and
void.
3.
We treat the present petition as one for naturalization. Or, in the words of
law, a "petition for citizenship". This is as it should be. Because a reading of the
petition will reveal at once that efforts were made to set forth therein, and to prove
afterwards, compliance with Sections 2 and 4 of the Revised Naturalization law. The
trial court itself apparently considered the petition as one for naturalization, and, in
fact, declared petitioner "a citizen of the Philippines."
In other words, under this holding, in order for an alien woman marrying a Filipino to
be vested with Filipino citizenship, it is not enough that she possesses the
qualifications prescribed by Section 2 of the law and none of the disqualifications
enumerated in its Section 4. Over and above all these, she has to pass thru the
whole process of judicial naturalization apparently from declaration of intention to
oathtaking, before she can become a Filipina. In plain words, her marriage to a
Filipino is absolutely of no consequence to her nationality vis-a-vis that of her
Filipino husband; she remains to be the national of the country to which she owed
allegiance before her marriage, and if she desires to be of one nationality with her
husband, she has to wait for the same time that any other applicant for
naturalization needs to complete, the required period of ten year residence, gain
the knowledge of English or Spanish and one of the principle local languages, make
her children study in Filipino schools, acquire real property or engage in some lawful
occupation of her own independently of her husband, file her declaration of
intention and after one year her application for naturalization, with the affidavits of
two credible witnesses of her good moral character and other qualifications, etc.,
etc., until a decision is ordered in her favor, after which, she has to undergo the two
years of probation, and only then, but not before she takes her oath as citizen, will
she begin to be considered and deemed to be a citizen of the Philippines. Briefly,
she can become a Filipino citizen only by judicial declaration.
Such being the import of the Court's ruling, and it being quite obvious, on the other
hand, upon a cursory reading of the provision, in question, that the law intends by it
to spell out what is the "effect of naturalization on (the) wife and children" of an
alien, as plainly indicated by its title, and inasmuch as the language of the provision
itself clearly conveys the thought that some effect beneficial to the wife is intended
by it, rather than that she is not in any manner to be benefited thereby, it behooves
Us to take a second hard look at the ruling, if only to see whether or not the Court
might have overlooked any relevant consideration warranting a conclusion different
from that complained therein. It is undeniable that the issue before Us is of grave
importance, considering its consequences upon tens of thousands of persons
affected by the ruling therein made by the Court, and surely, it is for Us to avoid,
whenever possible, that Our decision in any case should produce any adverse effect
upon them not contemplated either by the law or by the national policy it seeks to
endorse.

AMICI CURIAE in the Burca case, respectable and impressive by their number and
standing in the Bar and well known for their reputation for intellectual integrity,
legal acumen and incisive and comprehensive resourcefulness in research, truly
evident in the quality of the memorandum they have submitted in said case, invite
Our attention to the impact of the decision therein thus:
The doctrine announced by this Honorable Court for the first time in the present
case -- that an alien woman who marries a Philippine citizen not only does not ipso
facto herself become a citizen but can acquire such citizenship only through
ordinary naturalization proceedings under the Revised Naturalization Law, and that
all administrative actions "certifying or declaring such woman to be a Philippine
citizen are null and void" has consequences that reach far beyond the confines of
the present case. Considerably more people are affected, and affected deeply, than
simply Mrs. Zita N. Burca. The newspapers report that as many as 15 thousand
women married to Philippine citizens are affected by this decision of the Court.
These are women of many and diverse nationalities, including Chinese, Spanish,
British, American, Columbian, Finnish, Japanese, Chilean, and so on. These members
of the community, some of whom have been married to citizens for two or three
decades, have all exercised rights and privileges reserved by law to Philippine
citizens. They will have acquired, separately or in conjugal partnership with their
citizen husbands, real property, and they will have sold and transferred such
property. Many of these women may be in professions membership in which is
limited to citizens. Others are doubtless stockholders or officers or employees in
companies engaged in business activities for which a certain percentage of Filipino
equity content is prescribed by law. All these married women are now faced with
possible divestment of personal status and of rights acquired and privileges
exercised in reliance, in complete good faith, upon a reading of the law that has
been accepted as correct for more than two decades by the very agencies of
government charged with the administration of that law. We must respectfully
suggest that judicial doctrines which would visit such comprehensive and farreaching injury upon the wives and mothers of Philippine citizens deserve intensive
scrutiny and reexamination.
To be sure, this appeal can be no less than what this Court attended to in Gan
Tsitung vs. Republic, G.R. No. L-20819, Feb. 21, 1967, 19 SCRA 401 when Chief
Justice Concepcion observed:
The Court realizes, however, that the rulings in the Barretto and Delgado cases
although referring to situations the equities of which are not identical to those
obtaining in the case at bar may have contributed materially to the irregularities
committed therein and in other analogous cases, and induced the parties concerned
to believe, although erroneously, that the procedure followed was valid under the
law.
Accordingly, and in view of the implications of the issue under consideration, the
Solicitor General was required, not only, to comment thereon, but, also, to state
"how many cases there are, like the one at bar, in which certificates of
naturalization have been issued after notice of the filing of the petition for
naturalization had been published in the Official Gazette only once, within the
periods (a) from January 28, 1950" (when the decision in Delgado v. Republic was

promulgated) "to May 29, 1957" (when the Ong Son Cui was decided) "and (b) from
May 29, 1957 to November 29, 1965" (when the decision in the present case was
rendered).
After mature deliberation, and in the light of the reasons adduced in appellant's
motion for reconsideration and in the reply thereto of the Government, as well as of
the data contained in the latter, the Court holds that the doctrine laid down in the
Ong Son Cui case shall apply and affect the validity of certificates of naturalization
issued after, not on or before May 29, 1957.
Here We are met again by the same problem. In Gan Tsitung, the Court had to
expressly enjoin the prospective application of its construction of the law made in a
previous decision, 24 which had already become final, to serve the ends of justice
and equity. In the case at bar, We do not have to go that far. As already observed,
the decision in Burca still under reconsideration, while the ruling in Lee Suan Ay, Lo
San Tuang, Choy King Tee and others that followed them have at the most become
the law of the case only for the parties thereto. If there are good grounds therefor,
all We have to do now is to reexamine the said rulings and clarify or modify them.
For ready reference, We requote Section 15:
Sec. 15.
Effect of the naturalization on wife and children. Any woman who is
now or may hereafter be married to a citizen of the Philippines, and who might
herself be lawfully naturalized shall be deemed a citizen of the Philippines.
Minor children of persons naturalized under this law who have been born in the
Philippines shall be considered citizens thereof.
A foreign-born minor child, if dwelling in the Philippines at the time of naturalization
of the parents, shall automatically become a Philippine citizen, and a foreign-born
minor child, who is not in the Philippines at the time the parent is naturalized, shall
be deemed a Philippine citizen only during his minority, unless he begins to reside
permanently in the Philippines when still a minor, in which case, he will continue to
be a Philippine citizen even after becoming of age.
A child born outside of the Philippines after the naturalization of his parent, shall be
considered a Philippine citizen, unless within one year after reaching the age of
majority, he fails to register himself as a Philippine citizen at the American
Consulate of the country where he resides, and to take the necessary oath of
allegiance.
It is obvious that the main subject-matter and purpose of the statute, the Revised
Naturalization Law or Commonwealth Act 473, as a whole, is to establish a complete
procedure for the judicial conferment of the status of citizenship upon qualified
aliens. After laying out such a procedure, remarkable for its elaborate and careful
inclusion of all safeguards against the possibility of any undesirable persons
becoming a part of our citizenry, it carefully but categorically states the
consequence of the naturalization of an alien undergoing such procedure it
prescribes upon the members of his immediate family, his wife and children, 25
and, to that end, in no uncertain terms it ordains that: (a) all his minor children who

have been born in the Philippines shall be "considered citizens" also; (b) all such
minor children, if born outside the Philippines but dwelling here at the time of such
naturalization "shall automatically become" Filipinos also, but those not born in the
Philippines and not in the Philippines at the time of such naturalization, are also
redeemed citizens of this country provided that they shall lose said status if they
transfer their permanent residence to a foreign country before becoming of age; (c)
all such minor children, if born outside of the Philippines after such naturalization,
shall also be "considered" Filipino citizens, unless they expatriate themselves by
failing to register as Filipinos at the Philippine (American) Consulate of the country
where they reside and take the necessary oath of allegiance; and (d) as to the wife,
she "shall be deemed a citizen of the Philippines" if she is one "who might herself be
lawfully naturalized". 26
No doubt whatever is entertained, so Burca holds very correctly, as to the point that
the minor children, falling within the conditions of place and time of birth and
residence prescribed in the provision, are vested with Philippine citizenship directly
by legislative fiat or by force of the law itself and without the need for any judicial
proceeding or declaration. (At p. 192, 19 SCRA). Indeed, the language of the
provision, is not susceptible of any other interpretation. But it is claimed that the
same expression "shall be deemed a citizen of the Philippines" in reference to the
wife, does not necessarily connote the vesting of citizenship status upon her by
legislative fiat because the antecedent phrase requiring that she must be one "who
might herself be lawfully naturalized" implies that such status is intended to attach
only after she has undergone the whole process of judicial naturalization required of
any person desiring to become a Filipino. Stated otherwise, the ruling in Burca is
that while Section 15 envisages and intends legislative naturalization as to the
minor children, the same section deliberately treats the wife differently and leaves
her out for the ordinary judicial naturalization.
Of course, it goes without saying that it is perfectly within the constitutional
authority of the Congress of the Philippines to confer or vest citizenship status by
legislative fiat. (U.S. v. Wong Kim Ark, 169 U.S. 649, 42 L ed. 890 [1898]; See, 1
Taada & Carreon, Political Law of the Philippines 152 [1961 ed.]) In fact, it has done
so for particular individuals, like two foreign religious prelates, 27 hence there is no
reason it cannot do it for classes or groups of persons under general conditions
applicable to all of the members of such class or group, like women who marry
Filipinos, whether native-born or naturalized. The issue before Us in this case is
whether or not the legislature hag done so in the disputed provisions of Section 15
of the Naturalization Law. And Dr. Vicente G. Sinco, one of the most respect
authorities on political law in the Philippines 28 observes in this connection thus: "A
special form of naturalization is often observed by some states with respect to
women. Thus in the Philippines a foreign woman married to a Filipino citizen
becomes ipso facto naturalized, if she belongs to any of the classes who may apply
for naturalization under the Philippine Laws." (Sinco, Phil. Political Law 498-499
[10th ed. 1954]; emphasis ours; this comment is substantially reiterated in the 1962
edition, citing Ly Giok Ha and Ricardo Cua, supra.)
More importantly, it may be stated, at this juncture, that in construing the provision
of the United States statutes from which our law has been copied, 28a the American
courts have held that the alien wife does not acquire American citizenship by choice

but by operation of law. "In the Revised Statutes the words "and taken" are omitted.
The effect of this statute is that every alien woman who marries a citizen of the
United States becomes perforce a citizen herself, without the formality of
naturalization, and regardless of her wish in that respect." (USCA 8, p. 601 [1970
ed.], citing Mackenzie v. Hare, 1913, 134 P. 713, 165 Cal. 766, affirmed 36 S. Ct.
106, 239 U.S. 299, 60 L ed. 297.) .
We need not recount here again how this provision in question was first enacted as
paragraph (a) of Section 13, by way of an insertion into Act 2927 by Act 3448 of
November 30, 1928, and that, in turn, and paragraph was copied verbatim from
Section 1994 of the Revised Statutes of the United States, which by that time
already had a long accepted construction among the courts and administrative
authorities in that country holding that under such provision an alien woman who
married a citizen became, upon such marriage, likewise a citizen by force of law and
as a consequence of the marriage itself without having to undergo any
naturalization proceedings, provided that, it could be shown that at the time of such
marriage, she was not disqualified to be naturalized under the laws then in force. To
repeat the discussion We already made of these undeniable facts would
unnecessarily make this decision doubly extensive. The only point which might be
reiterated for emphasis at this juncture is that whereas in the United States, the
American Congress, recognizing the construction, of Section 1994 of the Revised
Statutes to be as stated above, and finding it desirable to avoid the effects of such
construction, approved the Act of September 22, 1922 Explicitly requiring all such
alien wives to submit to judicial naturalization albeit under more liberal terms than
those for other applicants for citizenship, on the other hand, the Philippine
Legislature, instead of following suit and adopting such a requirement, enacted Act
3448 on November 30, 1928 which copied verbatim the aforementioned Section
1994 of the Revised Statutes, thereby indicating its preference to adopt the latter
law and its settled construction rather than the reform introduced by the Act of
1922.
Obviously, these considerations leave Us no choice. Much as this Court may feel
that as the United States herself has evidently found it to be an improvement of her
national policy vis-a-vis the alien wives of her citizens to discontinue their automatic
incorporation into the body of her citizenry without passing through the judicial
scrutiny of a naturalization proceeding, as it used to be before 1922, it seems but
proper, without evidencing any bit of colonial mentality, that as a developing
country, the Philippines adopt a similar policy, unfortunately, the manner in which
our own legislature has enacted our laws on the subject, as recounted above,
provides no basis for Us to construe said law along the line of the 1922 modification
of the American Law. For Us to do so would be to indulge in judicial legislation which
it is not institutionally permissible for this Court to do. Worse, this court would be
going precisely against the grain of the implicit Legislative intent.
There is at least one decision of this Court before Burca wherein it seems it is quite
clearly implied that this Court is of the view that under Section 16 of the
Naturalization Law, the widow and children of an applicant for naturalization who
dies during the proceedings do not have to submit themselves to another
naturalization proceeding in order to avail of the benefits of the proceedings
involving the husband. Section 16 provides: .

SEC. 16.
Right of widow and children of petitioners who have died. In case a
petitioner should die before the final decision has been rendered, his widow and
minor children may continue the proceedings. The decision rendered in the case
shall, so far as the widow and minor children are concerned, produce the same legal
effect as if it had been rendered during the life of the petitioner.
In Tan Lin v. Republic, G.R. No. L-13706, May 31, 1961, 2 SCRA 383, this Court held:
Invoking the above provisions in their favor, petitioners-appellants argue (1) that
under said Sec. 16, the widow and minor children are allowed to continue the same
proceedings and are not substituted for the original petitioner; (2) that the
qualifications of the original petitioner remain to be in issue and not those of the
widow and minor children, and (3) that said Section 16 applies whether the
petitioner dies before or after final decision is rendered, but before the judgment
becomes executory.
There is force in the first and second arguments. Even the second sentence of said
Section 16 contemplate the fact that the qualifications of the original petitioner
remains the subject of inquiry, for the simple reason that it states that "The decision
rendered in the case shall, so far as the widow and minor children are concerned,
produce the same legal effect as if it had been rendered during the life of the
petitioner." This phraseology emphasizes the intent of the law to continue the
proceedings with the deceased as the theoretical petitioner, for if it were otherwise,
it would have been unnecessary to consider the decision rendered, as far as it
affected the widow and the minor children.
xxx

xxx

xxx

The Chua Chian case (supra), cited by the appellee, declared that a dead person
can not be bound to do things stipulated in the oath of allegiance, because an oath
is a personal matter. Therein, the widow prayed that she be allowed to take the oath
of allegiance for the deceased. In the case at bar, petitioner Tan Lin merely asked
that she be allowed to take the oath of allegiance and the proper certificate of
naturalization, once the naturalization proceedings of her deceased husband, shall
have been completed, not on behalf of the deceased but on her own behalf and of
her children, as recipients of the benefits of his naturalization. In other words, the
herein petitioner proposed to take the oath of allegiance, as a citizen of the
Philippines, by virtue of the legal provision that "any woman who is now or may
hereafter be married to a citizen of the Philippines and who might herself be lawfully
naturalized shall be deemed a citizen of the Philippines. Minor children of persons
naturalized under this law who have been born in the Philippines shall be considered
citizens thereof." (Section 15, Commonwealth Act No. 473). The decision granting
citizenship to Lee Pa and the record of the case at bar, do not show that the
petitioning widow could not have been lawfully naturalized, at the time Lee Pa filed
his petition, apart from the fact that his 9 minor children were all born in the
Philippines. (Decision, In the Matter of the Petition of Lee Pa to be admitted a citizen
of the Philippines, Civil Case No. 16287, CFI, Manila, Annex A; Record on Appeal, pp.
8-11). The reference to Chua Chian case is, therefore, premature.

Section 16, as may be seen, is a parallel provision to Section 15. If the widow of an
applicant for naturalization as Filipino, who dies during the proceedings, is not
required to go through a naturalization preceeding, in order to be considered as a
Filipino citizen hereof, it should follow that the wife of a living Filipino cannot be
denied the same privilege. This is plain common sense and there is absolutely no
evidence that the Legislature intended to treat them differently.
Additionally, We have carefully considered the arguments advanced in the motion
for reconsideration in Burca, and We see no reason to disagree with the following
views of counsel: .
It is obvious that the provision itself is a legislative declaration of who may be
considered citizens of the Philippines. It is a proposition too plain to be disputed that
Congress has the power not only to prescribe the mode or manner under which
foreigners may acquire citizenship, but also the very power of conferring citizenship
by legislative fiat. (U. S. v. Wong Kim Ark, 169 U. S. 649, 42 L. Ed. 890 [1898] ; see 1
Taada and Carreon, Political Law of the Philippines 152 [1961 ed.]) The Constitution
itself recognizes as Philippine citizens "Those who are naturalized in accordance
with law" (Section 1[5], Article IV, Philippine Constitution). Citizens by naturalization,
under this provision, include not only those who are naturalized in accordance with
legal proceedings for the acquisition of citizenship, but also those who acquire
citizenship by "derivative naturalization" or by operation of law, as, for example, the
"naturalization" of an alien wife through the naturalization of her husband, or by
marriage of an alien woman to a citizen. (See Taada & Carreon, op. cit. supra, at
152, 172; Velayo, Philippine Citizenship and Naturalization 2 [1965 ed.]; 1 Paras,
Civil Code 186 [1967 ed.]; see also 3 Hackworth, Digest of International Law 3).
The phrase "shall be deemed a citizen of the Philippines" found in Section 14 of the
Revised Naturalization Law clearly manifests an intent to confer citizenship.
Construing a similar phrase found in the old U.S. naturalization law (Revised
Statutes, 1994), American courts have uniformly taken it to mean that upon her
marriage, the alien woman becomes by operation of law a citizen of the United
States as fully as if she had complied with all the provisions of the statutes upon the
subject of naturalization. (U.S. v. Keller, 13 F. 82; U.S. Opinions of the US Attorney
General dated June 4, 1874 [14 Op. 4021, July 20, 1909 [27 Op. 507], December 1,
1910 [28 Op. 508], Jan. 15, 1920 [32 Op. 2091 and Jan. 12, 1923 [23 398]).
The phrase "shall be deemed a citizen," in Section 1994 Revised Statute (U.S.
Comp. Stat. 1091, 1268) or as it was in the Act of 1855 (10 Stat. at L. 604, Chapt.
71, Sec. 2), "shall be deemed and taken to be a citizens" while it may imply that the
person to whom it relates has not actually become a citizen by the ordinary means
or in the usual way, as by the judgment of a competent court, upon a proper
application and proof, yet it does not follow that such person is on that account
practically any the less a citizen. The word "deemed" is the equivalent of
"considered" or "judged," and therefore, whatever an Act of Congress requires to be
"deemed" or "taken" as true of any person or thing must, in law, be considered as
having been duly adjudged or established concerning such person or thing, and
have force and effect accordingly. When, therefore, Congress declares that an alien
woman shall, under certain circumstances, be "deemed" an American citizen, the
effect when the contingency occurs, is equivalent to her being naturalized directly

by an Act of Congress or in the usual mode thereby prescribed. (Van Dyne,

Citizenship of the United States 239, cited in Velayo, Philippine Citizenship and
Naturalization 146-147 [1965 ed.]; emphasis ours).
That this was likewise the intent of the Philippine legislature when it enacted the
first paragraph of Section 15 of the Revised Naturalization Law is shown by a textual
analysis of the entire statutory provision. In its entirety, Section 15 reads:
(See supra).
The phrases "shall be deemed" "shall be considered," and "shall automatically
become" as used in the above provision, are undoubtedly synonymous. The leading
idea or purpose of the provision was to confer Philippine citizenship by operation of
law upon certain classes of aliens as a legal consequence of their relationship, by
blood or by affinity, to persons who are already citizens of the Philippines. Whenever
the fact of relationship of the persons enumerated in the provision concurs with the
fact of citizenship of the person to whom they are related, the effect is for said
persons to become ipso facto citizens of the Philippines. "Ipso facto" as here used
does not mean that all alien wives and all minor children of Philippine citizens, from
the mere fact of relationship, necessarily become such citizens also. Those who do
not meet the statutory requirements do not ipso facto become citizens; they must
apply for naturalization in order to acquire such status. What it does mean,
however, is that in respect of those persons enumerated in Section 15, the
relationship to a citizen of the Philippines is the operative fact which establishes the
acquisition of Philippine citizenship by them. Necessarily, it also determines the
point of time at which such citizenship commences. Thus, under the second
paragraph of Section 15, a minor child of a Filipino naturalized under the law, who
was born in the Philippines, becomes ipso facto a citizen of the Philippines from the
time the fact of relationship concurs with the fact of citizenship of his parent, and
the time when the child became a citizen does not depend upon the time that he is
able to prove that he was born in the Philippines. The child may prove some 25
years after the naturalization of his father that he was born in the Philippines and
should, therefore, be "considered" a citizen thereof. It does not mean that he
became a Philippine citizen only at that later time. Similarly, an alien woman who
married a Philippine citizen may be able to prove only some 25 years after her
marriage (perhaps, because it was only 25 years after the marriage that her
citizenship status became in question), that she is one who might herself be lawfully
naturalized." It is not reasonable to conclude that she acquired Philippine citizenship
only after she had proven that she "might herself be lawfully naturalized." It is not
reasonable to conclude that she acquired Philippine citizenship only after she had
proven that she "might herself be lawfully naturalized."
The point that bears emphasis in this regard is that in adopting the very
phraseology of the law, the legislature could not have intended that an alien wife
should not be deemed a Philippine citizen unless and until she proves that she
might herself be lawfully naturalized. Far from it, the law states in plain terms that
she shall be deemed a citizen of the Philippines if she is one "who might herself be
lawfully naturalized." The proviso that she must be one "who might herself be
lawfully naturalized" is not a condition precedent to the vesting or acquisition of
citizenship; it is only a condition or a state of fact necessary to establish her

citizenship as a factum probandum, i.e., as a fact established and proved in

evidence. The word "might," as used in that phrase, precisely replies that at the
time of her marriage to a Philippine citizen, the alien woman "had (the) power" to
become such a citizen herself under the laws then in force. (Owen v. Kelly, 6 DC 191
[1867], aff'd Kelly v. Owen, 76 US 496, 19 L ed 283 [1869). That she establishes
such power long after her marriage does not alter the fact that at her marriage, she
became a citizen.
(This Court has held) that "an alien wife of a Filipino citizen may not acquire the
status of a citizen of the Philippines unless there is proof that she herself may be
lawfully naturalized" (Decision, pp. 3-4). Under this view, the "acquisition" of
citizenship by the alien wife depends on her having proven her qualifications for
citizenship, that is, she is not a citizen unless and until she proves that she may
herself be lawfully naturalized. It is clear from the words of the law that the proviso
does not mean that she must first prove that she "might herself be lawfully
naturalized" before she shall be deemed (by Congress, not by the courts) a citizen.
Even the "uniform" decisions cited by this Court (at fn. 2) to support its holding did
not rule that the alien wife becomes a citizen only after she has proven her
qualifications for citizenship. What those decisions ruled was that the alien wives in
those cases failed to prove their qualifications and therefore they failed to establish
their claim to citizenship. Thus in Ly Giok Ha v. Galang, 101 Phil. 459 [l957], the
case was remanded to the lower court for determination of whether petitioner,
whose claim to citizenship by marriage to a Filipino was disputed by the
Government, "might herself be lawfully naturalized," for the purpose of " proving
her alleged change of political status from alien to citizen" (at 464). In Cua v. Board,
101 Phil. 521 [1957], the alien wife who was being deported, claimed she was a
Philippine citizen by marriage to a Filipino. This Court finding that there was no proof
that she was not disqualified under Section 4 of the Revised Naturalization Law,
ruled that: "No such evidence appearing on record, the claim of assumption of
Philippine citizenship by Tijoe Wu Suan, upon her marriage to petitioner, is
untenable." (at 523) It will be observed that in these decisions cited by this Court,
the lack of proof that the alien wives "might (themselves) be lawfully naturalized"
did not necessarily imply that they did not become, in truth and in fact, citizens
upon their marriage to Filipinos. What the decisions merely held was that these
wives failed to establish their claim to that status as a proven fact.
In all instances where citizenship is conferred by operation of law, the time when
citizenship is conferred should not be confused with the time when citizenship
status is established as a proven fact. Thus, even a natural-born citizen of the
Philippines, whose citizenship status is put in issue in any proceeding would be
required to prove, for instance, that his father is a citizen of the Philippines in order
to factually establish his claim to citizenship.* His citizenship status commences
from the time of birth, although his claim thereto is established as a fact only at a
subsequent time. Likewise, an alien woman who might herself be lawfully
naturalized becomes a Philippine citizen at the time of her marriage to a Filipino
husband, not at the time she is able to establish that status as a proven fact by
showing that she might herself be lawfully naturalized. Indeed, there is no
difference between a statutory declaration that a person is deemed a citizen of the
Philippines provided his father is such citizen from a declaration that an alien
woman married to a Filipino citizen of the Philippines provided she might herself be

lawfully naturalized. Both become citizens by operation of law; the former becomes
a citizen ipso facto upon birth; the later ipso facto upon marriage.
It is true that unless and until the alien wife proves that she might herself be
lawfully naturalized, it cannot be said that she has established her status as a
proven fact. But neither can it be said that on that account, she did not become a
citizen of the Philippines. If her citizenship status is not questioned in any legal
proceeding, she obviously has no obligation to establish her status as a fact. In such
a case, the presumption of law should be that she is what she claims to be. (U.S. v.
Roxas, 5 Phil. 375 [1905]; Hilado v. Assad, 51 O.G. 4527 [1955]). There is a
presumption that a representation shown to have been made is true. (Aetna
Indemnity Co. v. George A. Fuller, Co., 73 A. 738, 74 A. 369, 111 ME. 321).
The question that keeps bouncing back as a consequence of the foregoing views is,
what substitute is them for naturalization proceedings to enable the alien wife of a
Philippine citizen to have the matter of her own citizenship settled and established
so that she may not have to be called upon to prove it everytime she has to perform
an act or enter in to a transaction or business or exercise a right reserved only to
Filipinos? The ready answer to such question is that as the laws of our country, both
substantive and procedural, stand today, there is no such procedure, but such
paucity is no proof that the citizenship under discussion is not vested as of the date
of marriage or the husband's acquisition of citizenship, as the case may be, for the
truth is that the same situation objections even as to native-born Filipinos.
Everytime the citizenship of a person is material or indispensable in a judicial or
administrative case, whatever the corresponding court or administrative authority
decides therein as to such citizenship is generally not considered as res adjudicata,
hence it has to be threshed out again and again as the occasion may demand. This,
as We view it, is the sense in which Justice Dizon referred to "appropriate
proceeding" in Brito v. Commissioner, supra. Indeed, only the good sense and
judgment of those subsequently inquiring into the matter may make the effort
easier or simpler for the persons concerned by relying somehow on the antecedent
official findings, even if these are not really binding.
It may not be amiss to suggest, however, that in order to have a good starting point
and so that the most immediate relevant public records may be kept in order, the
following observations in Opinion No. 38, series of 1958, of then Acting Secretary of
Justice Jesus G. Barrera, may be considered as the most appropriate initial step by
the interested parties:
Regarding the steps that should be taken by an alien woman married to a Filipino
citizen in order to acquire Philippine citizenship, the procedure followed in the
Bureau of Immigration is as follows: The alien woman must file a petition for the
cancellation of her alien certificate of registration alleging, among other things, that
she is married to a Filipino, citizen and that she is not disqualified from acquiring her
husband's citizenship pursuant to section 4 of Commonwealth Act No. 473, as
amended. Upon the filing of said petition, which should be accompanied or
supported by the joint affidavit of the petitioner and her Filipino husband to the
effect that the petitioner does not belong to any of the groups disqualified by the
cited section from becoming naturalized Filipino citizen (please see attached CEB

Form 1), the Bureau of Immigration conducts an investigation and thereafter

promulgates its order or decision granting or denying the petition.
Once the Commissioner of Immigration cancels the subject's registration as an
alien, there will probably be less difficulty in establishing her Filipino citizenship in
any other proceeding, depending naturally on the substance and vigor of the
opposition.
Before closing, it is perhaps best to clarify that this third issue We have passed upon
was not touched by the trial court, but as the point is decisive in this case, the Court
prefers that the matter be settled once and for all now.
IN VIEW OF ALL THE FOREGOING, the judgment of the Court a quo dismissing
appellants' petition for injunction is hereby reversed and the Commissioner of
Immigration and/or his authorized representative is permanently enjoined from
causing the arrest and deportation and the confiscation of the bond of appellant Lau
Yuen Yeung, who is hereby declared to have become a Filipino citizen from and by
virtue of her marriage to her co-appellant Moy Ya Lim Yao alias Edilberto Aguinaldo
Lim, a Filipino citizen on January 25, 1962. No costs.
Dizon, Castro, Teehankee and Villamor, JJ., concur.
In Re Mallari
A.M. No. 533

April 29, 1968

IN RE: FLORENCIO MALLARE.

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

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

registered voter in Macalelon, Quezon. (Annex "7", being Exh. "2" in Civil Case No.
329-G).
A landing certificate of residence issued under Section 7, Act 702 by the Collector of
Customs is based upon an administrative ex parte determination of the evidence
presented and the facts as stated by the applicant and, therefore, carries little
evidentiary weight as to the citizenship of the applicant's husband. In the instant
case, the truth of Te Na's declarations when she applied for the landing certificate
could have been inquired into had she been presented as a witness in these
proceedings, but this was not done.
The affidavit of Esteban Mallare, besides being self-serving, is not a substitute for a
duly recorded election of Philippine citizenship, assuming that the affiant was
qualified to so elect. When Esteban executed it, he was already thirty-six (36) years
old and he executed it for the purpose, stated in the last paragraph, of making a
change in a miscellaneous lease application wherein he had previously stated that
he is a citizen of China. Nor can it be regarded as a re-affirmation of an alleged
election of citizenship, since no such previous election was proven to have existed.
Esteban Mallare's registration as a voter indicates his desire to exercise a right
appertaining exclusively to Filipino citizens but this does not alter his real
citizenship, which, in this jurisdiction, is determinable by his blood ( jus sanguinis).
Against these pretensions of Philippine citizenship, all the five (5) known children of
the spouses Esteban Mallare and Te Na Artemio, Esperanza, Florencio, Paciencia and
Raymundo, were registered at birth as children of a Chinese father and a Chinese
mother and with the added detail that their parents were born in China.
The birth certificate of Esperanza Mallare (Exh. "F") who was born on 25 October
1939, is particularly significant in this regard, because it bears the father's own
signature. If Esteban Mallare was indeed a Filipino by choice, as stated by him in his
aforementioned affidavit (Annex 4), then he should have so stated in this birth
certificate of his daughter, instead, he admits, against his own interest, that he is a
Chinese. Esteban Mallare's own death certificate (Exh. "C"), over the signature of his
son, Artemio Mallare, shows against Artemio's own interest that Esteban was a
Chinese, born in Fookiang, China; that he died on 5 June 1945, at the age of 42 and
is buried at the Chinese cemetery, having resided in the Philippines for 28 years
(Exh. "C"), i.e., only since 1917.
The affidavit of Artemio denying that the signature in the aforesaid death certificate
is his, is inadmissible and, therefore, should be rejected, as it was offered in
evidence for the first time after trial was closed, as an annex to the respondent's
memorandum with the investigator. The affiant was not examined thereon, and the
affidavit is self-serving besides.
The entire family, consisting of the father, mother and their four (4) children
(Raymundo was not yet born) were registered as aliens in 1942 in the then Division
of Alien Statistics, pursuant to the proclamation of the Commander-in-Chief of the
Imperial Japanese Forces in the Philippines and Executive Order No. 25 of the then
Executive Commission. (See letter of Jan. 18, 1963 from the Bureau of Immigration

to the Legal Officer-Investigator, see also pp. 171 and 180-181, Vol. I, No. 4, Official
Gazette, published during Japanese occupation.) .
In addition, the respondent himself was again registered as an alien in 1950, his
application thereto bearing his thumbprints and stating therein that he is a Chinese;
that he belongs to the yellow race and that he had used these other names: "Tan
Jua Gae", "Enciong" and "Jua Gac" (Exh. "N"). He had been a teacher in the Candon
Chinese School (t.s.n., p. 17, Oct. 3, 1962). His explanation that it was his mother
who registered him as an alien is flimsy; and, as stated hereinbefore, he did not
present his mother as a witness.
The evidence is thus clearly preponderant, if not overwhelming that the
respondent's father, Esteban Mallare or "Mallari", also known as "Esteban Dy",
"Esteban Dy Mallare" and "Esteban Tan", was and remained a Chinese until he died;
consequently, the respondent's mother, admittedly a Chinese, retained her original
citizenship and their offspring, respondent, Florencio Mallare, together with his
brothers and sisters, are likewise Chinese nationals, through and through.
We now turn to respondent's second defense of res judicata. There are certain
marks of simulation that attended Civil Case No. 329-G, and indicating that it was
brought to circumvent a previous unfavorable opinion of the Secretary of Justice
denying cancellation of Mallare's alien registration (Op. No. 90, Ser. of 1955, dated
March 31, 1955). The said civil case was instituted by the vendor (Vitaliano Itable)
of a certain parcel of land to rescind the sale and recover the land sold from the
vendees, who are the herein respondent and his brothers and sisters, on the ground
that the said vendees are Chinese. The vendor-plaintiff practically abandoned the
case; the vendees-defendants submitted evidence purporting to show their Filipino
citizenship, and plaintiff neither cross examined nor presented rebuttal proof. After
trial, the court, declaring the vendees as natural-born Filipino citizens, decided for
the validity of the sale of the parcel of land.
On the basis of the foregoing declaration by the Court of First Instance of Quezon
Province, the respondent and his brothers and sisters filed Special Proceeding No.
3925, in the same court, but in a different branch, for the "correction" of their birth
records. The local fiscal, representing the Solicitor General, appeared but did not
oppose the petition; wherefore, after hearing, the court granted the petition. Based
on the same judicial declaration, the then Commissioner of Immigration De la Rosa
(not the complainant) cancelled on June 8, 1960, the alien registration of the herein
respondent and that of his brothers and sisters, and issued to them identification
certificates recognizing them as Filipino citizens. Then Solicitor General Alafriz took
the same position.
Civil Case No. 329-G and Special Proceeding No. 3925 are not modes of acquiring
Philippine citizenship; neither is the Chinese citizenship of the respondent converted
to Filipino because certain government agencies recognized him as such. He
remains, by jus sanguinis, a Chinese until he is naturalized.
It is noted that the declaration that the respondent and his brothers and sisters are
Filipino citizens is stated in the dispositive portion of the decision in Civil Case No.
329-G, which was an action in personam. The pronouncement was not within the

court's competence, because the declaration of the citizenship of these defendants

was not the relief that was sought. At the time, the pronouncement was beyond
judicial power, there being no law authorizing the institution of a judicial preceding
to declare the citizenship of an individual (Danilo Channie Tan v. Republic, L-14159,
April 18, 1960; Paralaran v. Republic, L-15047, Jan. 30, 1962; Tan Yu Chin v.
Republic, L-15775, April 29, 1961; Tan v. Republic, L-16108, October 31, 1961;
Santiago vs. Commissioner, L-14653, Jan. 31, 1963; Comissioner vs. Domingo, L21274, July 31, 1963; Lao Yap Diok, et al. v. Republic, L-19107-09, Sept. 30, 1964).
In the basic case
follows:1wph1.t

Channie

Tan

vs.

Republic,

ante,

this

Court

ruled

as

Under our laws, there can be no action or proceeding for the judicial declaration of
the citizenship of an individual. Courts of justice exist for the settlement of
justiciable controversies, which imply a given right, legally demandable and
enforceable, an act or omission violative of said right, and a remedy granted or
sanctioned by law, for said breach of right. As an incident only of the adjudication of
the rights of the parties to a controversy, the court may pass upon, and make a
pronouncement relative to, their status. Otherwise, such a pronouncement is
beyond judicial power. Thus, for instance, no action or proceeding may be instituted
for a declaration to the effect that plaintiff or petitioner is married, or single, or a
legitimate child, although a finding thereon may be made as a necessary premise to
justify a given relief available only to one enjoying said status. At times, the law
permits the acquisition of a given status, such as naturalization, by judicial decree.
But, there is no similar legislation authorizing the institution of a judicial proceeding
to declare that a given person is part of our citizenry. (Tan vs. Republic, G.R. No. L14159, April 18, 1960, reiterated in G.R. No. L-15775, April 29, 1961).
The said judicial declaration3 was merely an incident to the adjudication of the
rights of the parties to the controversy over land ownership. Their citizenship was
not the thing adjudicated in the judgment and the declaration that they are Filipinos
was but a necessary premise for the court to arrive at a conclusion that the sale of
the realty was valid as between the parties. Not being the thing directly
adjudicated, their declared citizenship is not res judicata, and cannot become
conclusive.
The appearance of the fiscal, representing the Solicitor General, in Special
Proceeding No. 3925 does not bind the state to the order of "correction" of the birth
records because the proceeding was not instituted as in rem and, under no law had
the state given its consent to be party thereto. For this reason, the fiscal's
appearance was an unauthorized one.
It is noteworthy that in neither case relied upon by the respondent does it appear
that his claim for citizenship was given adequate publication so as to apprise all
concerned and give them opportunity to contest it or supply the corresponding
public office any derogatory data that might exist against the alleged citizenship.
Hence, neither decision constitutes res judicata on the issue of respondent's alleged
Filipino nationality.

And certainly, the Supreme Court, acting pursuant to its inherent and constitutional
authority, may not be precluded from inquiring into the citizenship of persons
admitted to the practice of law, independently of any other court's findings in the
cases or proceedings brought or instituted therein.
IN VIEW OF ALL THE FOREGOING, the respondent Florencio Mallare is hereby
declared excluded from the practice of law; his admission to the Philippine bar is
revoked and he is hereby ordered to return immediately to this Court the lawyer's
diploma previously issued to him.
Let a copy of this decision be furnished, when it becomes final, to the Secretary of
Justice, for such action as may be deemed warranted; and let another copy be sent
to the Local Civil Registrar of Macalelon, Quezon, for purposes of record in the
corresponding civil registry of births. So ordered.
Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando,
JJ., concur.
Concepcion, C.J., is on leave.
Aznar v. Comelec
G.R. No. 83820
May 25, 1990
JOSE B. AZNAR (as Provincial Chairman of PDP Laban in Cebu), petitioner,
vs.
COMMISSION ON ELECTIONS and EMILIO MARIO RENNER OSMEA, respondents.
Rufino B. Requina for petitioner.
Angara, Abello, Concepcion, Regala & Cruz for private respondent.

PARAS, J.:
Before Us is a petition for certiorari assailing the Resolution of the Commission on
Elections (COMELEC) dated June 11, 1988, which dismissed the petition for the
disqualification of private respondent Emilio "Lito" Osmea as candidate for
Provincial Governor of Cebu Province.
The facts of the case are briefly as follows:
On November 19, 1987, private respondent Emilio "Lito" Osmea filed his certificate
of candidacy with the COMELEC for the position of Provincial Governor of Cebu
Province in the January 18, 1988 local elections.
On January 22, 1988, the Cebu PDP-Laban Provincial Council (Cebu-PDP Laban, for
short), as represented by petitioner Jose B. Aznar in his capacity as its incumbent
Provincial Chairman, filed with the COMELEC a petition for the disqualification of
private respondent on the ground that he is allegedly not a Filipino citizen, being a
citizen of the United States of America.

On January 27, 1988, petitioner filed a Formal Manifestation submitting a Certificate

issued by the then Immigration and Deportation Commissioner Miriam Defensor
Santiago certifying that private respondent is an American and is a holder of Alien
Certificate of Registration (ACR) No. B-21448 and Immigrant Certificate of Residence
(ICR) No. 133911, issued at Manila on March 27 and 28, 1958, respectively. (Annex
"B-1").
The petitioner also filed a Supplemental Urgent Ex-Parte Motion for the Issuance of a
Temporary Restraining Order to temporarily enjoin the Cebu Provincial Board of
Canvassers from tabulating/canvassing the votes cast in favor of private respondent
and proclaiming him until the final resolution of the main petition.
Thus, on January 28, 1988, the COMELEC en banc resolved to order the Board to
continue canvassing but to suspend the proclamation.
At the hearing before the COMELEC (First Division), the petitioner presented the
following exhibits tending to show that private respondent is an American citizen:
Application for Alien Registration Form No. 1 of the Bureau of Immigration signed by
private respondent dated November 21, 1979 (Exh. "B"); Alien Certificate of
Registration No. 015356 in the name of private respondent dated November 21,
1979 (Exh. "C"); Permit to Re-enter the Philippines dated November 21, 1979 (Exh.
"D"); Immigration Certificate of Clearance dated January 3, 1980 (Exh. "E"). (pp.
117-118, Rollo)
Private respondent, on the other hand, maintained that he is a Filipino citizen,
alleging: that he is the legitimate child of Dr. Emilio D. Osmea, a Filipino and son of
the late President Sergio Osmea, Sr.; that he is a holder of a valid and subsisting
Philippine Passport No. 0855103 issued on March 25, 1987; that he has been
continuously residing in the Philippines since birth and has not gone out of the
country for more than six months; and that he has been a registered voter in the
Philippines since 1965. (pp. 107-108, Rollo)
On March 3, 1988, COMELEC (First Division) directed the Board of Canvassers to
proclaim the winning candidates. Having obtained the highest number of votes,
private respondent was proclaimed the Provincial Governor of Cebu.
Thereafter, on June 11, 1988, COMELEC (First Division) dismissed the petition for
disqualification for not having been timely filed and for lack of sufficient proof that
private respondent is not a Filipino citizen.
Hence, the present petition.
The petition is not meritorious.
There are two instances where a petition questioning the qualifications of a
registered candidate to run for the office for which his certificate of candidacy was
filed can be raised under the Omnibus Election Code (B.P. Blg. 881), to wit:
(1)

Before election, pursuant to Section 78 thereof which provides that:

'Section 78. Petition to deny due course or to cancel a certificate of candidacy. A

verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of
the filing of the certificate of candidacy and shall be decided, after the notice and
hearing, not later than fifteen days before the election.
and
(2)

After election, pursuant to Section 253 thereof, viz:

'Sec. 253. Petition for quo warranto. Any voter contesting the election of any
Member of the Batasang Pambansa, regional, provincial, or city officer on the
ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a
sworn petition for quo warranto with the Commission within ten days after the
proclamation of the results of the election.
The records show that private respondent filed his certificate of candidacy on
November 19, 1987 and that the petitioner filed its petition for disqualification of
said private respondent on January 22, 1988. Since the petition for disqualification
was filed beyond the twenty five-day period required in Section 78 of the Omnibus
Election Code, it is clear that said petition was filed out of time.
The petition for the disqualification of private respondent cannot also be treated as
a petition for quo warranto under Section 253 of the same Code as it is
unquestionably premature, considering that private respondent was proclaimed
Provincial Governor of Cebu only on March 3, 1988.
However, We deem it is a matter of public interest to ascertain the respondent's
citizenship and qualification to hold the public office to which he has been
proclaimed elected. There is enough basis for us to rule directly on the merits of the
case, as the COMELEC did below.
Petitioner's contention that private respondent is not a Filipino citizen and,
therefore, disqualified from running for and being elected to the office of Provincial
Governor of Cebu, is not supported by substantial and convincing evidence.
In the proceedings before the COMELEC, the petitioner failed to present direct proof
that private respondent had lost his Filipino citizenship by any of the modes
provided for under C.A. No. 63. Among others, these are: (1) by naturalization in a
foreign country; (2) by express renunciation of citizenship; and (3) by subscribing to
an oath of allegiance to support the Constitution or laws of a foreign country. From
the evidence, it is clear that private respondent Osmea did not lose his Philippine
citizenship by any of the three mentioned hereinabove or by any other mode of
losing Philippine citizenship.
In concluding that private respondent had been naturalized as a citizen of the
United States of America, the petitioner merely relied on the fact that private

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

country since 1963 up to the present, both as a voter and as a candidate (pp. 107108, Rollo). Thus, private respondent remains a Filipino and the loss of his Philippine
citizenship cannot be presumed.
In the learned dissent of Mr. Justice Teodoro Padilla, he stresses the fact that
because Osmea obtained Certificates of Alien Registration as an American citizen,
the first in 1958 when he was 24 years old and the second in 1979, he, Osmea
should be regarded as having expressly renounced Philippine citizenship. To Our
mind, this is a case of non sequitur (It does not follow). Considering the fact that
admittedly Osmea was both a Filipino and an American, the mere fact that he has
a Certificate stating he is an American does not mean that he is not still a Filipino.
Thus, by way of analogy, if a person who has two brothers named Jose and Mario
states or certifies that he has a brother named Jose, this does not mean that he
does not have a brother named Mario; or if a person is enrolled as student
simultaneously in two universities, namely University X and University Y, presents a
Certification that he is a student of University X, this does not necessarily mean that
he is not still a student of University Y. In the case of Osmea, the Certification that
he is an American does not mean that he is not still a Filipino, possessed as he is, of
both nationalities or citizenships. Indeed, there is no express renunciation here of
Philippine citizenship; truth to tell, there is even no implied renunciation of said
citizenship. When We consider that the renunciation needed to lose Philippine
citizenship must be "express", it stands to reason that there can be no such loss of
Philippine 'citizenship when there is no renunciation either "'express" or "implied".
Parenthetically, the statement in the 1987 Constitution that "dual allegiance of
citizens is inimical to the national interest and shall be dealt with by law"(Art. IV,
Sec. 5) has no retroactive effect. And while it is true that even before the 1987
Constitution, Our country had already frowned upon the concept of dual citizenship
or allegiance, the fact is it actually existed. Be it noted further that under the
aforecited proviso, the effect of such dual citizenship or allegiance shall be dealt
with by a future law. Said law has not yet been enacted.
WHEREFORE, the petition for certiorari is hereby DISMISSED and the Resolution of
the COMELEC is hereby AFFIRMED.
SO ORDERED.
Narvasa, Bidin, Grio-Aquino, Medialdea and Regalado, JJ., concur.
Feliciano, J., I concur. I also join in the concurring opinion of Justice Sarmiento.
Cortes, J., concur in the result.
Fernan, C.J., took no part.
Gancayco, J., is on leave.

Separate Opinions

SARMIENTO, J., concurring:

The majority seems agreed that the private respondent has acquired American
citizenship, only that he did not necessarily lose his Filipino citizenship. The
important question, however, inheres in how he obtained American citizenship. I
find that there is a dearth of facts here.
For, if the private respondent became an American by naturalization, he has lost
Filipino citizenship (Com. Act No. 63; Frivaldo v. COMELEC, G.R. No. 87193, June 21,
1989; Labo v. COMELEC, G.R. No. 86564, August 1, 1989). If he, however, became
one by the application of the principle of jus soli it is by force of circumstances
rather than choice. But he does not lose his Filipino citizenship, if he were otherwise
born of Filipino parents.
In the absence of evidence, we can not presume that he had ceased to be a citizen
of the Philippines, simply because he is, at the same time. a citizen of the United
States. There must be a clear showing that he lost his Filipino citizenship by any of
the means enumerated by Commonwealth Act No. 63. The fact that he had
obtained an alien certificate of registration, standing alone, does not amount to
"express renunciation."

MELENCIO-HERRERA, J., dissenting:

I join the dissent of Messrs. Justices Isagani A. Cruz and Teodoro R. Padilla.
While it may be that dual citizenship usually results from accident of birth, a choice
will have to be made by the individual concerned at some point in time in his life,
involving as it does the priceless heritage of citizenship.
That election was made by private respondent when, in 1958, at the age of 24, and
in 1979, at 45, he obtained Alien Certificates of Registration. Registration as an alien
is a clear and unambiguous act or declaration that one is not a citizen. If, in fact,
private respondent was merely compelled to so register because of the
"uncooperativeness" of the past regime, he could have, under the new
dispensation, asked for the cancellation of those Alien Certificates and abandoned
his alienage, specially before he ran for public office in 1988.
The 1987 Constitution declares in no uncertain terms that "dual allegiance of
citizens is inimical to the national interest and shall be dealt with by law" (Article IV,
Section 5). That statement is but a reaffirmation of an innate conviction shared by
every Filipino. The law referred to need not be awaited for one to consider giving up
the legal convenience of dual citizenship.

Accordingly, I vote to grant the Petition.

CRUZ, J., dissenting:

I join Mr. Justice Padilla in his dissent.
It seems to me that when a person voluntarily registers as an alien, he is in effect
affirming that he is not a citizen. The terms "citizen" and "alien" are mutually
exclusive from the viewpoint of municipal law, which is what really matters in the
case at bar. Under this discipline, one is either a citizen of the local state or he is
not; and the question is resolved on the basis of its own laws alone and not those of
any other state.
One of the several modes of losing Philippine citizenship under C.A. No. 63 is by
"express renunciation" thereof. In the case of Frivaldo v. Commission on Elections,
G.R. No. 87193, June 23,1989, there was such renunciation when the petitioner took
an oath as a naturalized citizen of the United States in which he renounced all
allegiance to all other states. In the case of Labo v. Commission on Elections, G.R.
No. 86546, August 1, 1989, the petitioner not only took a similar oath after his
naturalization in Australia but also executed other documents in which he stated
that he was not a Filipino.
The fact that his naturalization was later revoked did not also invalidate his
disavowal of Philippine citizenship. "Express renunciation" is a separate mode of
losing Philippine citizenship and is not necessarily dependent on "naturalization in a
foreign country," which is another and different mode.
When a person rejects and divorces his wife to enter into a second marriage, he
cannot say he still loves her despite his desertion. The undeniable fact is that he
has left her for another woman to whom he has totally and solemnly transferred his
troth. It does him no credit when he protests he married a second time simply for
material convenience and that his heart still belongs to the wife he has abandoned.
At worst, it would reveal his sordid and deceitful character.
By the same token, professing continued allegiance to the Philippines after
renouncing it because of its meager resources, or for other ulterior and equally base
reasons, is to me a paltry form of patriotism. It is a sop to the repudiated state and
a slight to the adopted state. No matter how noble this attitude may appear to
others, it is to me nothing less than plain and simple hypocrisy that we should not
condone, let alone extol.
Coming now to the case at bar, I note first of all that no naturalization is involved
here as the private respondent claims to be a citizen both of the Philippines and of
the United States. The question I think we must answer is: Was there an express
renunciation of Philippine citizenship by the private respondent when he knowingly
and voluntarily registered as an alien with the Commission of Immigration and
Deportation in 1958 and in 1979?

In Yu v. Commission of Immigration and Deportation, G.R. No. 83882, January 24,

1989, I made the following observations in a separate opinion:
Regretfully, I cannot agree with the finding that the petitioner has expressly
renounced his Philippine citizenship. The evidence on this point is in my view rather
meager. Express renunciation of citizenship as a made of losing citizenship under
Com. Act No. 63 is an unequivocal and deliberate act with full awareness of its
significance and consequences. I do not think the "commercial documents he
signed" suggest such categorical disclaimer.
That case is distinguished from the one before us now in that Yu did not ask the
Philippine government to register him as an alien. Gov. Osmea did.
It is my opinion that if the governor had confined himself to simply seeking and
using an American passport, these acts could not have by themselves alone
constituted a repudiation of Philippine citizenship. The problem, though, is that he
did more than enjoy this legal convenience. What he actually did was register with
the Philippine government as an alien within its own territory, presumably so he
could be insulated from the jurisdiction it exercises over its nationals. This was a
voluntary act. As a citizen of the Philippines, he was not required to register as an
alien. Nevertheless, he chose to do so of his own free will. By this decision, he
categorically asked the Republic of the Philippines to treat him as an American and
not a Filipino, choosing to be an alien in this land that was willing to consider him its
own.
C.A. No. 63 does not necessarily require that the express renunciation of Philippine
citizenship be made in connection with the naturalization of the erstwhile Filipino in
a foreign country. Renunciation may be made independently of naturalization
proceedings. Moreover, no sacramental words are prescribed by the statute for the
express renunciation of Philippine citizenship. As long as the repudiation is
categorical enough and the preference for the foreign state is unmistakable, as in
the case at bar, Philippine citizenship is lost.
The private respondent would have his cake and eat it too, but this can never be
allowed where Philippine citizenship is involved. It is a gift that must be deserved to
be retained. The Philippines for all her modest resources compared to those of other
states, is a jealous and possessive mother demanding total love and loyalty from
her children. It is bad enough that the love of the dual national is shared with
another state; what is worse is where he formally rejects the Philippines, and in its
own territory at that, and offers his total devotion to the other state.
I am aware of the praiseworthy efforts of Gov. Osmea to improve the province of
Cebu, and also, I should add, of the commendable record of Gov. Frivaldo and Mayor
Labo in the administration of their respective jurisdictions. But that is not the point.
The point is that it is not lawful to maintain in public office any person who,
although supported by the electorate, is not a Filipino citizen. This is a relentless
restriction we cannot ignore.
Regretfully, therefore, I must vote to GRANT the petition.

PADILLA, J., dissenting:

I am constrained to dissent.
I start from the premise that the private respondent Emilio Mario Renner Osmea
enjoyed at one time dual citizenship, i.e,, Philippine and U.S. citizenships. He was
born in the Philippines of a Filipino father and an American (U.S.) mother. However,
his sworn application for alien registration dated 21 November 1979 (Exh. B) filed
with the Philippine immigration authorities was, in my view, an express renunciation
of his Philippine citizenship. As held in Board of Immigration Commissioners vs. Go
Callano 1 express renunciation means a renunciation that is made known distinctly
and explicitly and not left to inference or implication.
Nothing can be more distinct and explicit than when a dual citizenship holder-like
the private respondent of age, and with full legal capacity to act, voluntarily and
under oath applies with the Philippine Government for registration as an alien,
insofar as his intention not to remain a Filipino citizen is concerned. And because of
that distinct and explicit manifestation of desire to be considered an alien in the
Philippines, the Philippine immigration authorities issued to private respondent Alien
Certificate of Registration No. 015356 dated 21 November 1979 (Exh. C), Permit to
Re- enter the Philippines No. 122018 dated 21 November 1979 (Exh. D) and
Immigration Certificate of Clearance No. D-146483 dated 3 January 1980 (Exh E) 2
All the foregoing documents issued by the Philippine immigration authorities to the
private respondent at his request are predicated on the proposition that private
respondent is an alien under Philippine laws. It should also be mentioned that, while
not marked as exhibit in the case at bar, private respondent was likewise issued in
Cebu City Native Born Certificate of Residence No. 115883 on 21 November 1979
(as verified from Immigration records). This document, copy of which is attached
hereto as Annex A, is again predicated on the proposition that private respondent is
a duly-registered align (American) residing in the Philippines.
Another relevant document that merits attention is the Application for Re-entry
Permit executed and signed by private respondent on 3 January 1980, again under
oath, and verified from the records at the CID wherein private respondent expressly
stated that he is a U.S. national. The importance of this document cannot be
underestimated For, if private respondent believed that he is a Filipino citizen, he
would not have executed said Application for Re-entry Permit, since it is the right of
every Filipino citizen to return to his country (the Philippines). The fact, therefore,
that private respondent executed said sworn Application for Re-entry Permit, copy of
which is attached hereto as Annex B, is again an abundant proof that he himself, no
less, believed that he was, as he continuous to be, a resident alien (American) in the
Philippines.
It will further be noted that earlier, or in 1958, private respondent had already
registered as an alien with the Bureau of Immigration under the Alien Registration
Act of 1950 RA 562). Section 1 of said Act provides:

SECTION 1. Aliens residing in the Philippines shall, within thirty days after the
approval of this Act, apply for registration, in the case of those residing in the City of
Manila, at the Bureau of Immigration and in the case of those residing in other
localities at the office of the city or municipal treasurers, or at any other office
designated by the President. ... . 3 (Emphasis supplied)
Accordingly, per certification of the Commissioner of Immigration and Deportation
Miriam Defensor Santiago (Exh. A), issued on 26 January 1988, private respondent
had been issued ACR No. B-21-448 and ICR No. 13391 on 27 and 28 March 1958
respectively. He, therefore, registered himself in the Philippines as an alien twice;
first, in the year 1958, when he was 24 years old and again in 1979, when he was
45 years old. By twice registering under oath as an alien with the Bureau of
Immigration, private respondent thereby clearly, distinctly and explicitly manifested
and declared that he was an alien (and, therefore, not a Filipino citizen) residing in
the Philippines and under its laws.
At this point, and to be objectively fair to the private respondent, a clarification
should be made. In his Comment on the Petition at bar (Rollo, p. 81), it is stated by
his counsel that he (private respondent) was born in 1934 hence, our
mathematical conclusion that when he first registered as an alien in 1958, he was
24 years old and in 1979 when he re-registered as an alien, he was 45 years old.
However, private respondent's immigration records disclose that he was born in
1938 (not in 1934). On the assumption that the year 1938 is the correct year of
birth of private respondent (and that his alleged year of birth, 1934, as stated in his
Comment at bar is erroneous), then in 1958, when he first registered as an alien, he
was 20 years old, while in 1979 when he re-registered as an alien, he was 41 years
old.
Still, his first registration as an alien (at age 20) has to be taken, in my view, as an
express renunciation of his Philippine citizenship, because (1) at that time, he was
almost 21 years old the age of majority, and (2) more importantly, under the
applicable Alien Registration Act RA 562), an alien 14 years or over has to register in
person (and not through his parents or guardian). It provides:
The parent or legal guardian of an alien who is less than fourteen years of age, shall
have the duty of registering such alien: Provided, That whenever any such alien
attains his fourteenth birthday in the Philippines he shall, within fifteen days
thereafter, apply in person for registration. (Sec. 1, par. 2)
I take the above provision to mean that the choice by a dual nationality holder on
whether to remain a Filipino citizen or an alien has to be made at age 14, and
private respondent (although a bit late) made the notice in 1958 (at age 20) in favor
of his U.S. citizenship.
If all the foregoing acts of express renunciation of Philippine citizenship had been
made or filed by private respondent elsewhere (not with the Philippine
Government), there could perhaps be some room for contention that vis-a- vis the
Philippine Government, private respondent had not renounced his Philippine
citizenship. But said acts of express renunciation were filed with the Philippine
Government and done right in the Philippines. In turn the Philippine Government,

through the immigration authorities, accepted and acted on private respondent's

aforesaid representations, and registered and documented him TWICE as an alien
under Philippine law.
The policy of our laws has been, and with laudable reason, to discourage dual
citizenship, because this condition or status assumes as a necessary complement
thereof dual allegiance at the same time to two (2) different countries. As early as
16 September 1947, a unanimous Supreme Court, speaking thru Mr. Justice Sabino
Padilla in the celebrated case of Tan Chong vs. Secretary of Labor, rejected the
principle of jus soli as determinative of Philippine citizenship, for the following
reason, among others:
... . Citizenship, the main integrate element of which is allegiance, must not be
taken lightly. Dual allegiance must be discouraged and prevented. But the
application of the principle jus soli to persons born in this country of alien parentage
would encourage dual allegiance which in the long run would be detrimental to both
countries of which such persons might claim to be citizens. 4
This policy found later expression in the 1987 Constitution which now provides
Sec. 5.
Dual allegiance of citizen is inimical to the national interest and shall
be dealt with by law. (Article IV)
Dual citizenship, in my considered opinion, must be eschewed. While having the
"best of two (2) words" maybe the result of birth or other factors accidentally
brought about, the "dual citizen" has to make a choice at one time or another.
Having two (2) citizenships is, as I see it, similar in many ways to having two (2)
legal spouses, when as a matter of principle and sound public policy, fealty to only
one (1) spouse is both compelling and certainly desirable.
Gordon and Rosenfield in their book on Immigration Law and Procedure state:
Dual nationality is universally recognized as an undesirable phenomenon. It
inevitably results in questionable loyalties and leads to international conflicts. Dual
nationality also makes possible the use of citizenship as a badge of convenience
rather than of undivided loyalty. And it impairs the singleness of commitment which
is the hallmark of citizenship and allegiance. A person should have a right to choose
his own nationality, and this choice should be honored by all countries. However, he
should not be entitled to claim more than one nationality. 5 (Emphasis supplied)
Private respondent made a deliberate and decisive choice when he asked the
Philippine Government which, like many other countries, considers dual allegiance
as against national or public interest to register him at least twice (and, therefore,
unmistakably) as an alien in this country. That choice pro tanto was a renunciation
of his Philippine citizenship. The choice must be respected as a conscious and
knowledgeable act of a discerning, distinguished and respected person who must be
presumed to have known the full import of his acts.
Finally, the last thing that should be said against the Court is that it is inconsistent
in its rulings. In the light of its recent decision in G.R. No. 86565 (Ramon L. Labo, Jr.

vs. The Commission on Elections, et al.) I see no valid justification for holding Mr.
Labo an alien upper Philippine law while holding private respondent herein a Filipino
citizen. For, as the majority states: "In fact, in a number of sworn statements, Labo
categorically declared that he was a citizen of Australia" (p. 7, Decision). And is
exactly what private respondent did. In a number of sworn statements, he declared
that he was a citizen of the United States.
To Mr. Labo, the Court said, "so be it, you are an Australian," yet to the private
respondent, despite such sworn statements that he is a U.S. citizen, the Court says,
"never mind those sworn statements, you are still a Filipino." Sauce for the goose,
as the saying goes, is sauce for the gander. The doctrinal basis of the Court's
decisions should be built on the merits, not on distinctions that really make no
difference.
ACCORDINGLY, I vote to GRANT the petition and to declare the private respondent
not a Filipino citizen by his own acts of express renunciation of such citizenship.

GUTIERREZ, JR., J., dissenting:

My stand in the cases of Willie Yu vs. Miriam Defensor Santiago, et al. (G.R. No,
83882, January 24, 1989) and Ramon Labo, Jr, v. Commission on Elections (G.R.
86564, August 2, 1989) is clear. I regret, however, that I cannot participate in this
case because one of the principal counsel is my relative by affinity, within the fourth
civil degree.

Separate Opinions

SARMIENTO, J., concurring:

The majority seems agreed that the private respondent has acquired American
citizenship, offly that he did not necessarily lose his Filipino citizenship. The
important question, however, inheres in how he obtained American citizenship. I
find that there is a dearth of facts here.
For, if the private respondent became an American by naturalization, he has lost
Filipino citizenship (Com. Act No. 63; Frivaldo v. COMELEC, G.R. No. 87193, June 21,
1989; Labo v. COMELEC, G.R. No. 86564, August 1, 1989). If he, however, became
one by the application of the principle of jus soli it is by force of circumstances
rather than choice. But he does not lose his Filipino citizenship, if he were otherwise
born of Filipino parents.

In the absence of evidence, we can not presume that he had ceased to be a citizen
of the Philippines, simply because he is, at the same time. a citizen of the United
States. There must be a clear showing that he lost his Filipino citizenship by any of
the means enumerated by Commonwealth Act No. 63. The fact that he had
obtained an alien certificate of registration, standing alone, does not amount to
"express renunciation."

MELENCIO-HERRERA, J., dissenting:

I join the dissent of Messrs. Justices Isagani A. Cruz and Teodoro R. Padilla.
While it may be that dual citizenship usually results from accident of birth, a choice
will have to be made by the individual concerned at some point in time in his life,
involving as it does the priceless heritage of citizenship.
That election was made by private respondent when, in 1958, at the age of 24, and
in 1979, at 45, he obtained Alien Certificates of Registration. Registration as an alien
is a clear and unambiguous act or declaration that one is not a citizen. If, in fact,
private respondent was merely compelled to so register because of the
"uncooperativeness" of the past regime, he could have, under the new
dispensation, asked for the cancellation of those Alien Certificates and abandoned
his alienage, specially before he ran for public office in 1988.
The 1987 Constitution declares in no uncertain terms that "dual allegiance of
citizens is inimical to the national interest and shall be dealt with by law" (Article IV,
Section 5). That statement is but a reaffirmation of an innate conviction shared by
every Filipino. The law referred to need not be awaited for one to consider giving up
the legal convenience of dual citizenship.
Accordingly, I vote to grant the Petition.

CRUZ, J., dissenting:

I join Mr. Justice Padilla in his dissent.
It seems to me that when a person voluntarily registers as an alien, he is in effect
affirming that he is not a citizen. The terms "citizen" and "alien" are mutually
exclusive from the viewpoint of municipal law, which is what really matters in the
case at bar. Under this discipline, one is either a citizen of the local state or he is
not; and the question is resolved on the basis of its own laws alone and not those of
any other state.
One of the several modes of losing Philippine citizenship under C.A. No. 63 is by
"express renunciation" thereof. In the case of Frivaldo v. Commission on Elections,
G.R. No. 87193, June 23,1989, there was such renunciation when the petitioner took

an oath as a naturalized citizen of the United States in which he renounced all

allegiance to all other states. In the case of Labo v. Commission on Elections, G.R.
No. 86546, August 1, 1989, the petitioner not only took a similar oath after his
naturalization in Australia but also executed other documents in which he stated
that he was not a Filipino.
The fact that his naturalization was later revoked did not also invalidate his
disavowal of Philippine citizenship. "Express renunciation" is a separate mode of
losing Philippine citizenship and is not necessarily dependent on "naturalization in a
foreign country," which is another and different mode.
When a person rejects and divorces his wife to enter into a second marriage, he
cannot say he still loves her despite his desertion. The undeniable fact is that he
has left her for another woman to whom he has totally and solemnly transferred his
troth. It does him no credit when he protests he married a second time simply for
material convenience and that his heart still belongs to the wife he has abandoned.
At worst, it would reveal his sordid and deceitful character.
By the same token, professing continued allegiance to the Philippines after
renouncing it because of its meager resources, or for other ulterior and equally base
reasons, is to me a paltry form of patriotism. It is a sop to the repudiated state and
a slight to the adopted state. No matter how noble this attitude may appear to
others, it is to me nothing less than plain and simple hypocrisy that we should not
condone, let alone extol.
Coming now to the case at bar, I note first of all that no naturalization is involved
here as the private respondent claims to be a citizen both of the Philippines and of
the United States. The question I think we must answer is: Was there an express
renunciation of Philippine citizenship by the private respondent when he knowingly
and voluntarily registered as an alien with the Commission of Immigration and
Deportation in 1958 and in 1979?
In Yu v. Commission of Immigration and Deportation, G.R. No. 83882, January 24,
1989, I made the following observations in a separate opinion:
Regretfully, I cannot agree with the finding that the petitioner has expressly
renounced his Philippine citizenship. The evidence on this point is in my view rather
meager. Express renunciation of citizenship as a made of losing citizenship under
Com. Act No. 63 is an unequivocal and deliberate act with full awareness of its
significance and consequences. I do not think the "commercial documents he
signed" suggest such categorical disclaimer.
That case is distinguished from the one before us now in that Yu did not ask the
Philippine government to register him as an alien. Gov. Osmea did.
It is my opinion that if the governor had confined himself to simply seeking and
using an American passport, these acts could not have by themselves alone
constituted a repudiation of Philippine citizenship. The problem, though, is that he
did more than enjoy this legal convenience. What he actually did was register with
the Philippine government as an alien within its own territory, presumably so he

could be insulated from the jurisdiction it exercises over its nationals. This was a
voluntary act. As a citizen of the Philippines, he was not required to register as an
alien. Nevertheless, he chose to do so of his own free will. By this decision, he
categorically asked the Republic of the Philippines to treat him as an American and
not a Filipino, choosing to be an alien in this land that was willing to consider him its
own.
C.A. No. 63 does not necessarily require that the express renunciation of Philippine
citizenship be made in connection with the naturalization of the erstwhile Filipino in
a foreign country. Renunciation may be made independently of naturalization
proceedings. Moreover, no sacramental words are prescribed by the statute for the
express renunciation of Philippine citizenship. As long as the repudiation is
categorical enough and the preference for the foreign state is unmistakable, as in
the case at bar, Philippine citizenship is lost.
The private respondent would have his cake and eat it too, but this can never be
allowed where Philippine citizenship is involved. It is a gift that must be deserved to
be retained. The Philippines for all her modest resources compared to those of other
states, is a jealous and possessive mother demanding total love and loyalty from
her children. It is bad enough that the love of the dual national is shared with
another state; what is worse is where he formally rejects the Philippines, and in its
own territory at that, and offers his total devotion to the other state.
I am aware of the praiseworthy efforts of Gov. Osmea to improve the province of
Cebu, and also, I should add, of the commendable record of Gov. Frivaldo and Mayor
Labo in the administration of their respective jurisdictions. But that is not the point.
The point is that it is not lawful to maintain in public office any person who,
although supported by the electorate, is not a Filipino citizen. This is a relentless
restriction we cannot ignore.
Regretfully, therefore, I must vote to GRANT the petition.

PADILLA, J., dissenting:

I am constrained to dissent.
I start from the premise that the private respondent Emilio Mario Renner Osmea
enjoyed at one time dual citizenship, i.e,, Philippine and U.S. citizenships. He was
born in the Philippines of a Filipino father and an American (U.S.) mother. However,
his sworn application for alien registration dated 21 November 1979 (Exh. B) filed
with the Philippine immigration authorities was, in my view, an express renunciation
of his Philippine citizenship. As held in Board of Immigration Commissioners vs. Go
Callano 1 express renunciation means a renunciation that is made known distinctly
and explicitly and not left to inference or implication.
Nothing can be more distinct and explicit than when a dual citizenship holder-like
the private respondent of age, and with full legal capacity to act, voluntarily and
under oath applies with the Philippine Government for registration as an alien,

insofar as his intention not to remain a Filipino citizen is concerned. And because of
that distinct and explicit manifestation of desire to be considered an alien in the
Philippines, the Philippine immigration authorities issued to private respondent Alien
Certificate of Registration No. 015356 dated 21 November 1979 (Exh. C), Permit to
Re- enter the Philippines No. 122018 dated 21 November 1979 (Exh. D) and
Immigration Certificate of Clearance No. D-146483 dated 3 January 1980 (Exh E) 2
All the foregoing documents issued by the Philippine immigration authorities to the
private respondent at his request are predicated on the proposition that private
respondent is an alien under Philippine laws. It should also be mentioned that, while
not marked as exhibit in the case at bar, private respondent was likewise issued in
Cebu City Native Born Certificate of Residence No. 115883 on 21 November 1979
(as verified from Immigration records). This document, copy of which is attached
hereto as Annex A, is again predicated on the proposition that private respondent is
a duly-registered alien (American) residing in the Philippines.
Another relevant document that merits attention is the Application for Re-entry
Permit executed and signed by private respondent on 3 January 1980, again under
oath, and verified from the records at the CID wherein private respondent expressly
stated that he is a U.S. national. The importance of this document cannot be
underestimated. For, if private respondent believed that he is a Filipino citizen, he
would not have executed said Application for Re-entry Permit, since it is the right of
every Filipino citizen to return to his country (the Philippines). The fact, therefore,
that private respondent executed said sworn Application for Re-entry Permit, copy of
which is attached hereto as Annex B, is again an abundant proof that he himself, no
less, believed that he was, as he continuous to be, a resident alien (American) in the
Philippines.
It will further be noted that earlier, or in 1958, private respondent had already
registered as an alien with the Bureau of Immigration under the Alien Registration
Act of 1950 RA 562). Section 1 of said Act provides:
SECTION 1. Aliens residing in the Philippines shall, within thirty days after the
approval of this Act, apply for registration, in the case of those residing in the City of
Manila, at the Bureau of Immigration and in the case of those residing in other
localities at the office of the city or municipal treasurers, or at any other office
designated by the President. ... . 3 (Emphasis supplied)
Accordingly, per certification of the Commissioner of Immigration and Deportation
Miriam Defensor Santiago (Exh. A), issued on 26 January 1988, private respondent
had been issued ACR No. B-21-448 and ICR No. 13391 on 27 and 28 March 1958
respectively. He, therefore, registered himself in the Philippines as an alien twice;
first, in the year 1958, when he was 24 years old and again in 1979, when he was
45 years old. By twice registering under oath as an alien with the Bureau of
Immigration, private respondent thereby clearly, distinctly and explicitly manifested
and declared that he was an alien (and, therefore, not a Filipino citizen) residing in
the Philippines and under its laws.
At this point, and to be objectively fair to the private respondent, a clarification
should be made. In his Comment on the Petition at bar (Rollo, p. 81), it is stated by

his counsel that he (private respondent) was born in 1934-hence, our mathematical
conclusion that when he first registered as an alien in 1958, he was 24 years old
and in 1979 when he re-registered as an alien, he was 45 years old. However,
private respondent's immigration records disclose that he was born in 1938 (not in
1934). On the assumption that the year 1938 is the correct year of birth of private
respondent (and that his alleged year of birth, 1934, as stated in his Comment at
bar is erroneous), then in 1958, when he first registered as an alien, he was 20
years old, while in 1979 when he re-registered as an alien, he was 41 years old.
Still, his first registration as an alien (at age 20) has to be taken, in my view, as an
express renunciation of his Philippine citizenship, because (1) at that time, he was
almost 21 years old the age of majority, and (2) more importantly, under the
applicable Alien Registration Act RA 562), an alien 14 years or over has to register in
person (and not through his parents or guardian). It provides:
The parent or legal guardian of an alien who is less than fourteen years of age, shall
have the duty of registering such alien: Provided, That whenever any such alien
attains his fourteenth birthday in the Philippines he shall, within fifteen days
thereafter, apply in person for registration. (Sec. 1, par. 2)
I take the above provision to mean that the choice by a dual nationality holder on
whether to remain a Filipino citizen or an alien has to be made at age 14, and
private respondent (although a bit late) made the notice in 1958 (at age 20) in favor
of his U.S. citizenship.
If all the foregoing acts of express renunciation of Philippine citizenship had been
made or filed by private respondent elsewhere (not with the Philippine
Government), there could perhaps be some room for contention that vis-a- vis the
Philippine Government, private respondent had not renounced his Philippine
citizenship. But said acts of express renunciation were filed with the Philippine
Government and done right in the Philippines. In turn the Philippine Government,
through the immigration authorities, accepted and acted on private respondent's
aforesaid representations, and registered and documented him TWICE as an alien
under Philippine law.
The policy of our laws has been, and with laudable reason, to discourage dual
citizenship, because this condition or status assumes as a necessary complement
thereof dual allegiance at the same time to two (2) different countries. As early as
16 September 1947, a unanimous Supreme Court, speaking thru Mr. Justice Sabino
Padilla in the celebrated case of Tan Chong vs. Secretary of Labor, rejected the
principle of jus soli as determinative of Philippine citizenship, for the following
reason, among others:
... . Citizenship, the main integrate element of which is allegiance, must not be
taken lightly. Dual allegiance must be discouraged and prevented. But the
application of the principle jus soli to persons born in this country of alien parentage
would encourage dual allegiance which in the long run would be detrimental to both
countries of which such persons might claim to be citizens. 4
This policy found later expression in the 1987 Constitution which now provides-

Sec. 5.
Dual allegiance of citizen is inimical to the national interest and shall
be dealt with by law. (Article IV)
Dual citizenship, in my considered opinion, must be eschewed. While having the
"best of two (2) words" maybe the result of birth or other factors accidentally
brought about, the "dual citizen" has to make a choice at one time or another.
Having two (2) citizenships is, as I see it, similar in many ways to having two (2)
legal spouses, when as a matter of principle and sound public policy, fealty to only
one (1) spouse is both compelling and certainly desirable.
Gordon and Rosenfield in their book on Immigration Law and Procedure state:
Dual nationality is universally recognized as an undesirable phenomenon. It
inevitably results in questionable loyalties and leads to international conflicts. Dual
nationality also makes possible the use of citizenship as a badge of convenience
rather than of undivided loyalty. And it impairs the singleness of commitment which
is the hallmark of citizenship and allegiance. A person should have a right to choose
his own nationality, and this choice should be honored by all countries. However, he
should not be entitled to claim more than one nationality. 5 (Emphasis supplied)
Private respondent made a deliberate and decisive choice when he asked the
Philippine Government which, like many other countries, considers dual allegiance
as against national or public interest to register him at least twice (and, therefore,
unmistakably) as an alien in this country. That choice pro tanto was a renunciation
of his Philippine citizenship. The choice must be respected as a conscious and
knowledgeable act of a discerning, distinguished and respected person who must be
presumed to have known the full import of his acts.
Finally, the last thing that should be said against the Court is that it is inconsistent
in its rulings. In the light of its recent decision in G.R. No. 86565 (Ramon L. Labo, Jr.
vs. The Commission on Elections, et al.), I see no valid justification for holding Mr.
Labo an alien upper Philippine law while holding private respondent herein a Filipino
citizen. For, as the majority states: "In fact, in a number of sworn statements, Labo
categorically declared that he was a citizen of Australia" (p. 7, Decision). And is
exactly what private respondent did. In a number of sworn statements, he declared
that he was a citizen of the United States.
To Mr. Labo, the Court said, "so be it, you are an Australian," yet to the private
respondent, despite such sworn statements that he is a U.S. citizen, the Court says,
"never mind those sworn statements, you are still a Filipino." Sauce for the goose,
as the saying goes, is sauce for the gander The doctrinal basis of the Court's
decisions should be built on the merits, not on distinctions that really make no
difference.
ACCORDINGLY, I vote to GRANT the petition and to declare the private respondent
not a Filipino citizen by his own acts of express renunciation of such citizenship.

GUTIERREZ, JR., J., separate opinion:

My stand in the cases of Willie Yu vs. Miriam Defensor Santiago, et al. (G.R. No,
83882, January 24, 1989) and Ramon Labo, Jr, v. Commission on Elections (G.R.
86564, August 2, 1989) is clear. I regret, however, that I cannot participate in this
case because one of the principal counsel is my relative by affinity, within the fourth
civil degree.

Separate Opinions
SARMIENTO, J., concurring:
The majority seems agreed that the private respondent has acquired American
citizenship, offly that he did not necessarily lose his Filipino citizenship. The
important question, however, inheres in how he obtained American citizenship. I
find that there is a dearth of facts here.
For, if the private respondent became an American by naturalization, he has lost
Filipino citizenship (Com. Act No. 63; Frivaldo v. COMELEC, G.R. No. 87193, June 21,
1989; Labo v. COMELEC, G.R. No. 86564, August 1, 1989). If he, however, became
one by the application of the principle of jus soli it is by force of circumstances
rather than choice. But he does not lose his Filipino citizenship, if he were otherwise
born of Filipino parents.
In the absence of evidence, we can not presume that he had ceased to be a citizen
of the Philippines, simply because he is, at the same time. a citizen of the United
States. There must be a clear showing that he lost his Filipino citizenship by any of
the means enumerated by Commonwealth Act No. 63. The fact that he had
obtained an alien certificate of registration, standing alone, does not amount to
"express renunciation."

MELENCIO-HERRERA, J., dissenting:

I join the dissent of Messrs. Justices Isagani A. Cruz and Teodoro R. Padilla.
While it may be that dual citizenship usually results from accident of birth, a choice
will have to be made by the individual concerned at some point in time in his life,
involving as it does the priceless heritage of citizenship.
That election was made by private respondent when, in 1958, at the age of 24, and
in 1979, at 45, he obtained Alien Certificates of Registration. Registration as an alien
is a clear and unambiguous act or declaration that one is not a citizen. If, in fact,
private respondent was merely compelled to so register because of the
"uncooperativeness" of the past regime, he could have, under the new

dispensation, asked for the cancellation of those Alien Certificates and abandoned
his alienage, specially before he ran for public office in 1988.
The 1987 Constitution declares in no uncertain terms that "dual allegiance of
citizens is inimical to the national interest and shall be dealt with by law" (Article IV,
Section 5). That statement is but a reaffirmation of an innate conviction shared by
every Filipino. The law referred to need not be awaited for one to consider giving up
the legal convenience of dual citizenship.
Accordingly, I vote to grant the Petition.

CRUZ, J., dissenting:

I join Mr. Justice Padilla in his dissent.
It seems to me that when a person voluntarily registers as an alien, he is in effect
affirming that he is not a citizen. The terms "citizen" and "alien" are mutually
exclusive from the viewpoint of municipal law, which is what really matters in the
case at bar. Under this discipline, one is either a citizen of the local state or he is
not; and the question is resolved on the basis of its own laws alone and not those of
any other state.
One of the several modes of losing Philippine citizenship under C.A. No. 63 is by
"express renunciation" thereof. In the case of Frivaldo v. Commission on Elections,
G.R. No. 87193, June 23,1989, there was such renunciation when the petitioner took
an oath as a naturalized citizen of the United States in which he renounced all
allegiance to all other states. In the case of Labo v. Commission on Elections, G.R.
No. 86546, August 1, 1989, the petitioner not only took a similar oath after his
naturalization in Australia but also executed other documents in which he stated
that he was not a Filipino.
The fact that his naturalization was later revoked did not also invalidate his
disavowal of Philippine citizenship. "Express renunciation" is a separate mode of
losing Philippine citizenship and is not necessarily dependent on "naturalization in a
foreign country," which is another and different mode.
When a person rejects and divorces his wife to enter into a second marriage, he
cannot say he still loves her despite his desertion. The undeniable fact is that he
has left her for another woman to whom he has totally and solemnly transferred his
troth It does him no credit when he protests he married a second time simply for
material convenience and that his heart still belongs to the wife he has abandoned.
At worst, it would reveal his sordid and deceitful character.
By the same token, professing continued allegiance to the Philippines after
renouncing it because of its meager resources, or for other ulterior and equally base
reasons, is to me a paltry form of patriotism. It is a sop to the repudiated state and
a slight to the adopted state. No matter how noble this attitude may appear to

others, it is to me nothing less than plain and simple hypocrisy that we should not
condone, let alone extol.
Coming now to the case at bar, I note first of all that no naturalization is involved
here as the private respondent claims to be a citizen both of the Philippines and of
the United States. The question I think we must answer is: Was there an express
renunciation of Philippine citizenship by the private respondent when he knowingly
and voluntarily registered as an alien with the Commission of Immigration and
Deportation in 1958 and in 1979?
In Yu v. Commission of Immigration and Deportation, G.R. No. 83882, January 24,
1989, I made the following observations in a separate opinion:
Regretfully, I cannot agree with the finding that the petitioner has expressly
renounced his Philippine citizenship. The evidence on this point is in my view rather
meager. Express renunciation of citizenship as a made of losing citizenship under
Com. Act No. 63 is an unequivocal and deliberate act with full awareness of its
significance and consequences. I do not think the "commercial documents he
signed" suggest such categorical disclaimer.
That case is distinguished from the one before us now in that Yu did not ask the
Philippine government to register him as an alien. Gov. Osmea did.
It is my opinion that if the governor had confined himself to simply seeking and
using an American passport, these acts could not have by themselves alone
constituted a repudiation of Philippine citizenship. The problem, though, is that he
did more than enjoy this legal convenience. What he actually did was register with
the Philippine government as an alien within its own territory, presumably so he
could be insulated from the jurisdiction it exercises over its nationals. This was a
voluntary act. As a citizen of the Philippines, he was not required to register as an
alien. Nevertheless, he chose to do so of his own free will. By this decision, he
categorically asked the Republic of the Philippines to treat him as an American and
not a Filipino, choosing to be an alien in this land that was willing to consider him its
own.
C.A. No. 63 does not necessarily require that the express renunciation of Philippine
citizenship be made in connection with the naturalization of the erstwhile Filipino in
a foreign country. Renunciation may be made independently of naturalization
proceedings. Moreover, no sacramental words are prescribed by the statute for the
express renunciation of Philippine citizenship. As long as the repudiation is
categorical enough and the preference for the foreign state is unmistakable, as in
the case at bar, Philippine citizenship is lost.
The private respondent would have his cake and eat it too, but this can never be
allowed where Philippine citizenship is involved. It is a gift that must be deserved to
be retained. The Philippines for all her modest resources compared to those of other
states, is a jealous and possessive mother demanding total love and loyalty from
her children. It is bad enough that the love of the dual national is shared with
another state; what is worse is where he formally rejects the Philippines, and in its
own territory at that, and offers his total devotion to the other state.

I am aware of the praiseworthy efforts of Gov. Osmea to improve the province of

Cebu, and also, I should add, of the commendable record of Gov. Frivaldo and Mayor
Labo in the administration of their respective jurisdictions. But that is not the point.
The point is that it is not lawful to maintain in public office any person who,
although supported by the electorate, is not a Filipino citizen. This is a relentless
restriction we cannot ignore.
Regretfully, therefore, I must vote to GRANT the petition.

PADILLA, J., dissenting:

I am constrained to dissent.
I start from the premise that the private respondent Emilio Mario Renner Osmea
enjoyed at one time dual citizenship, i.e,, Philippine and U.S. citizenships. He was
born in the Philippines of a Filipino father and an American (U.S.) mother. However,
his sworn application for alien registration dated 21 November 1979 (Exh. B) filed
with the Philippine immigration authorities was, in my view, an express renunciation
of his Philippine citizenship. As held in Board of Immigration Commissioners vs. Go
Callano 1 express renunciation means a renunciation that is made known distinctly
and explicitly and not left to inference or implication.
Nothing can be more distinct and explicit than when a dual citizenship holder-like
the private respondent of age, and with full legal capacity to act, voluntarily and
under oath applies with the Philippine Government for registration as an alien,
insofar as his intention not to remain a Filipino citizen is concerned. And because of
that distinct and explicit manifestation of desire to be considered an alien in the
Philippines, the Philippine immigration authorities issued to private respondent Alien
Certificate of Registration No. 015356 dated 21 November 1979 (Exh. C), Permit to
Re- enter the Philippines No. 122018 dated 21 November 1979 (Exh. D) and
Immigration Certificate of Clearance No. D-146483 dated 3 January 1980 (Exh E) 2
All the foregoing documents issued by the Philippine immigration authorities to the
private respondent at his request are predicated on the proposition that private
respondent is an alien under Philippine laws. It should also be mentioned that, while
not marked as exhibit in the case at bar, private respondent was likewise issued in
Cebu City Native Born Certificate of Residence No. 115883 on 21 November 1979
(as verified from Immigration records). This document, copy of which is attached
hereto as Annex A, is again predicated on the proposition that private respondent is
a duly-registered align (American) residing in the Philippines.
Another relevant document that merits attention is the Application for Re-entry
Permit executed and signed by private respondent on 3 January 1980, again under
oath, and verified from the records at the CID wherein private respondent expressly
stated that he is a U.S. national. The importance of this document cannot be
underestimated For, if private respondent believed that he is a Filipino citizen, he
would not have executed said Application for Re-entry Permit, since it is the right of

every Filipino citizen to return to his country (the Philippines). The fact, therefore,
that private respondent executed said sworn Application for Re-entry Permit, copy of
which is attached hereto as Annex B, is again an abundant proof that he himself, no
less, believed that he was, as he continuous to be, a resident alien (American) in the
Philippines.
It will further be noted that earlier, or in 1958, private respondent had already
registered as an alien with the Bureau of Immigration under the Alien Registration
Act of 1950 RA 562). Section 1 of said Act provides:
SECTION 1. Aliens residing in the Philippines shall, within thirty days after the
approval of this Act, apply for registration, in the case of those residing in the City of
Manila, at the Bureau of Immigration and in the case of those residing in other
localities at the office of the city or municipal treasurers, or at any other office
designated by the President. ... . 3 (Emphasis supplied)
Accordingly, per certification of the Commissioner of Immigration and Deportation
Miriam Defensor Santiago (Exh. A), issued on 26 January 1988, private respondent
had been issued ACR No. B-21-448 and ICR No. 13391 on 27 and 28 March 1958
respectively. He, therefore, registered himself in the Philippines as an alien twice;
first, in the year 1958, when he was 24 years old and again in 1979, when he was
45 years old. By twice registering under oath as an alien with the Bureau of
Immigration, private respondent thereby clearly, distinctly and explicitly manifested
and declared that he was an alien (and, therefore, not a Filipino citizen) residing in
the Philippines and under its laws.
At this point, and to be objectively fair to the private respondent, a clarification
should be made. In his Comment on the Petition at bar (Rollo, p. 81), it is stated by
his counsel that he (private respondent) was born in 1934-hence, our mathematical
conclusion that when he first registered as an alien in 1958, he was 24 years old
and in 1979 when he re-registered as an alien, he was 45 years old. However,
private respondent's immigration records disclose that he was born in 1938 (not in
1934). On the assumption that the year 1938 is the correct year of birth of private
respondent (and that his alleged year of birth, 1934, as stated in his Comment at
bar is erroneous), then in 1958, when he first registered as an alien, he was 20
years old, while in 1979 when he re-registered as an alien, he was 41 years old.
Still, his first registration as an alien (at age 20) has to be taken, in my view, as an
express renunciation of his Philippine citizenship, because (1) at that time, he was
almost 21 years old the age of majority, and (2) more importantly, under the
applicable Alien Registration Act RA 562), an alien 14 years or over has to register in
person (and not through his parents or guardian). It provides:
The parent or legal guardian of an alien who is less than fourteen years of age, shall
have the duty of registering such alien: Provided, That whenever any such alien
attains his fourteenth birthday in the Philippines he shall, within fifteen days
thereafter, apply in person for registration. (Sec. 1, par. 2)
I take the above provision to mean that the choice by a dual nationality holder on
whether to remain a Filipino citizen or an alien has to be made at age 14, and

private respondent (although a bit late) made the notice in 1958 (at age 20) in favor
of his U.S. citizenship.
If all the foregoing acts of express renunciation of Philippine citizenship had been
made or filed by private respondent elsewhere (not with the Philippine
Government), there could perhaps be some room for contention that vis-a- vis the
Philippine Government, private respondent had not renounced his Philippine
citizenship. But said acts of express renunciation were filed with the Philippine
Government and done right in the Philippines. In turn the Philippine Government,
through the immigration authorities, accepted and acted on private respondent's
aforesaid representations, and registered and documented him TWICE as an alien
under Philippine law.
The policy of our laws has been, and with laudable reason, to discourage dual
citizenship, because this condition or status assumes as a necessary complement
thereof dual allegiance at the same time to two (2) different countries. As early as
16 September 1947, a unanimous Supreme Court, speaking thru Mr. Justice Sabino
Padilla in the celebrated case of Tan Chong vs. Secretary of Labor, rejected the
principle of jus soli as determinative of Philippine citizenship, for the following
reason, among others:
... . Citizenship, the main integrate element of which is allegiance, must not be
taken lightly. Dual allegiance must be discouraged and prevented. But the
application of the principle jus soli to persons born in this country of alien parentage
would encourage dual allegiance which in the long run would be detrimental to both
countries of which such persons might claim to be citizens. 4
This policy found later expression in the 1987 Constitution which now providesSec. 5.
Dual allegiance of citizen is inimical to the national interest and shall
be dealt with by law. (Article IV)
Dual citizenship, in my considered opinion, must be eschewed. While having the
"best of two (2) words" maybe the result of birth or other factors accidentally
brought about, the "dual citizen" has to make a choice at one time or another.
Having two (2) citizenships is, as I see it, similar in many ways to having two (2)
legal spouses, when as a matter of principle and sound public policy, fealty to only
one (1) spouse is both compelling and certainly desirable.
Gordon and Rosenfield in their book on Immigration Law and Procedure state:
Dual nationality is universally recognized as an undesirable phenomenon. It
inevitably results in questionable loyalties and leads to international conflicts. Dual
nationality also makes possible the use of citizenship as a badge of convenience
rather than of undivided loyalty. And it impairs the singleness of commitment which
is the hallmark of citizenship and allegiance. A person should have a right to choose
his own nationality, and this choice should be honored by all countries. However, he
should not be entitled to claim more than one nationality. 5 (Emphasis supplied)

Private respondent made a deliberate and decisive choice when he asked the
Philippine Government which, like many other countries, considers dual allegiance
as against national or public interest to register him at least twice (and, therefore,
unmistakably) as an alien in this country. That choice pro tanto was a renunciation
of his Philippine citizenship. The choice must be respected as a conscious and
knowledgeable act of a discerning, distinguished and respected person who must be
presumed to have known the full import of his acts.
Finally, the last thing that should be said against the Court is that it is inconsistent
in its rulings. In the light of its recent decision in G.R. No. 86565 (Ramon L. Labo, Jr.
vs. The Commission on Elections, et al., I see no valid justification for holding Mr.
Labo an alien upper Ph. Philippine law while holding private respondent herein a
Filipino citizen. For, as the majority states: "In fact,, in a number of sworn
statements, Labo categorically declared that he was a citizen of Australia"(p. 7,
Decision). And is exactly what private respondent did. In a number of sworn
statements, he declared that he was a citizen of the United States.
To Mr. Labo, the Court said, "so be it, you are an Australian," yet to the private
respondent, despite such sworn statements that he is a U.S. citizen, the Court says,
"never mind those sworn statements, you are still a Filipino." Sauce for the goose,
as the saying goes, is sauce for the gender The doctrinal basis of the Court's
decisions should be built on the merits, not on distinctions that really make no
difference.
ACCORDINGLY, I vote to GRANT the petition and to declare the private respondent
not a Filipino citizen by his own acts of express renunciation of such citizenship.

GUTIERREZ, JR., J., separate opinion:

My stand in the cases of Willie Yu vs. Miriam Defensor Santiago, et al. (G.R. No,
83882, January 24, 1989) and Ramon Labo, Jr, v. Commission on Elections (G.R.
86564, August 2, 1989) is clear. I regret, however, that I cannot participate in this
case because one of the principal counsel is my relative by affinity, within the fourth
civil degree.
Frivaldo v. Comelec
G.R. No. 87193
June 23, 1989
JUAN GALLANOSA FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON
CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE,
respondents.
J.L. Misa & Associates for petitioner.
Lladoc, Huab & Associates for private respondent.

CRUZ, J.:
Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of
Sorsogon on January 22, 1988, and assumed office in due time. On October 27,
1988, the League of Municipalities, Sorsogon Chapter (hereafter, League),
represented by its President, Salvador Estuye, who was also suing in his personal
capacity, filed with the Commission on Elections a petition for the annulment of
Frivaldo; election and proclamation on the ground that he was not a Filipino citizen,
having been naturalized in the United States on January 20, 1983. In his answer
dated May 22, 1988, Frivaldo admitted that he was naturalized in the United States
as alleged but pleaded the special and affirmative defenses that he had sought
American citizenship only to protect himself against President Marcos. His
naturalization, he said, was "merely forced upon himself as a means of survival
against the unrelenting persecution by the Martial Law Dictator's agents abroad."
He added that he had returned to the Philippines after the EDSA revolution to help
in the restoration of democracy. He also argued that the challenge to his title should
be dismissed, being in reality a quo warranto petition that should have been filed
within ten days from his proclamation, in accordance with Section 253 of the
Omnibus Election Code. The League, moreover, was not a proper party because it
was not a voter and so could not sue under the said section.
Frivaldo moved for a preliminary hearing on his affirmative defenses but the
respondent Commission on Elections decided instead by its Order of January 20,
1988, to set the case for hearing on the merits. His motion for reconsideration was
denied in another Order dated February 21, 1988. He then came to this Court in a
petition for certiorari and prohibition to ask that the said orders be set aside on the
ground that they had been rendered with grave abuse of discretion. Pending
resolution of the petition, we issued a temporary order against the hearing on the
merits scheduled by the COMELEC and at the same time required comments from
the respondents.
In their Comment, the private respondents reiterated their assertion that Frivaldo
was a naturalized American citizen and had not reacquired Philippine citizenship on
the day of the election on January 18, 1988. He was therefore not qualified to run
for and be elected governor. They also argued that their petition in the Commission
on Elections was not really for quo warranto under Section 253 of the Omnibus
Election Code. The ultimate purpose was to prevent Frivaldo from continuing as
governor, his candidacy and election being null and void ab initio because of his
alienage. Even if their petition were to be considered as one for quo warranto, it
could not have been filed within ten days from Frivaldo's proclamation because it
was only in September 1988 that they received proof of his naturalization. And
assuming that the League itself was not a proper party, Estuye himself, who was
suing not only for the League but also in his personal capacity, could nevertheless
institute the suit by himself alone.
Speaking for the public respondent, the Solicitor General supported the contention
that Frivaldo was not a citizen of the Philippines and had not repatriated himself

after his naturalization as an American citizen. As an alien, he was disqualified from

public office in the Philippines. His election did not cure this defect because the
electorate of Sorsogon could not amend the Constitution, the Local Government
Code, and the Omnibus Election Code. He also joined in the private respondent's
argument that Section 253 of the Omnibus Election Code was not applicable
because what the League and Estuye were seeking was not only the annulment of
the proclamation and election of Frivaldo. He agreed that they were also asking for
the termination of Frivaldo's incumbency as governor of Sorsogon on the ground
that he was not a Filipino.
In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his
naturalization as an American citizen was not "impressed with voluntariness." In
support he cited the Nottebohm Case, [(1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a
German national's naturalization in Liechtenstein was not recognized because it had
been obtained for reasons of convenience only. He said he could not have
repatriated himself before the 1988 elections because the Special Committee on
Naturalization created for the purpose by LOI No. 27C had not yet been organized
then. His oath in his certificate of candidacy that he was a natural-born citizen
should be a sufficient act of repatriation. Additionally, his active participation in the
1987 congressional elections had divested him of American citizenship under the
laws of the United States, thus restoring his Philippine citizenship. He ended by
reiterating his prayer for the rejection of the move to disqualify him for being timebarred under Section 253 of the Omnibus Election Code.
Considering the importance and urgency of the question herein raised, the Court
has decided to resolve it directly instead of allowing the normal circuitous route that
will after all eventually end with this Court, albeit only after a, long delay. We cannot
permit this delay. Such delay will be inimical to the public interest and the vital
principles of public office to be here applied.
It is true that the Commission on Elections has the primary jurisdiction over this
question as the sole judge of all contests relating to the election, returns and
qualifications of the members of the Congress and elective provincial and city
officials. However, the decision on Frivaldo's citizenship has already been made by
the COMELEC through its counsel, the Solicitor General, who categorically claims
that Frivaldo is a foreigner. We assume this stance was taken by him after
consultation with the public respondent and with its approval. It therefore
represents the decision of the COMELEC itself that we may now review. Exercising
our discretion to interpret the Rules of Court and the Constitution, we shall consider
the present petition as having been filed in accordance with Article IX-A Section 7, of
the Constitution, to challenge the aforementioned Orders of the COMELEC.
The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen
of the Philippines at the time of his election on January 18, 1988, as provincial
governor of Sorsogon. All the other issues raised in this petition are merely
secondary to this basic question.
The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution
that all public officials and employees owe the State and the Constitution
"allegiance at all times" and the specific requirement in Section 42 of the Local

Government Code that a candidate for local elective office must be inter alia a
citizen of the Philippines and a qualified voter of the constituency where he is
running. Section 117 of the Omnibus Election Code provides that a qualified voter
must be, among other qualifications, a citizen of the Philippines, this being an
indispensable requirement for suffrage under Article V, Section 1, of the
Constitution.
In the certificate of candidacy he filed on November 19, 1987, Frivaldo described
himself as a "natural-born" citizen of the Philippines, omitting mention of any
subsequent loss of such status. The evidence shows, however, that he was
naturalized as a citizen of the United States in 1983 per the following certification
from the United States District Court, Northern District of California, as duly
authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in
San Francisco, California, U.S.A.
OFFICE OF THE CLERK
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
September 23, 1988
TO WHOM IT MAY CONCERN:
Our records show that JUAN GALLANOSA FRIVALDO, born on October 20, 1915, was
naturalized in this Court on January 20, 1983, and issued Certificate of
Naturalization No. 11690178.
Petition No. 280225.
Alien Registration No. A23 079 270.
Very truly yours,

WILLIAM L. WHITTAKER
Clerk
by:
(Sgd.)

ARACELI V. BAREN
Deputy Clerk

This evidence is not denied by the petitioner. In fact, he expressly admitted it in his
answer. Nevertheless, as earlier noted, he claims it was "forced" on him as a
measure of protection from the persecution of the Marcos government through his
agents in the United States.
The Court sees no reason not to believe that the petitioner was one of the enemies
of the Marcos dictatorship. Even so, it cannot agree that as a consequence thereof
he was coerced into embracing American citizenship. His feeble suggestion that his
naturalization was not the result of his own free and voluntary choice is totally
unacceptable and must be rejected outright.
There were many other Filipinos in the United States similarly situated as Frivaldo,
and some of them subject to greater risk than he, who did not find it necessary
nor do they claim to have been coerced to abandon their cherished status as
Filipinos. They did not take the oath of allegiance to the United States, unlike the
petitioner who solemnly declared "on oath, that I absolutely and entirely renounce
and abjure all allegiance and fidelity to any foreign prince, potentate, state or
sovereignty of whom or which I have heretofore been a subject or citizen," meaning
in his case the Republic of the Philippines. The martyred Ninoy Aquino heads the
impressive list of those Filipinos in exile who, unlike the petitioner, held fast to their
Philippine citizenship despite the perils of their resistance to the Marcos regime.
The Nottebohm case cited by the petitioner invoked the international law principle
of effective nationality which is clearly not applicable to the case at bar. This
principle is expressed in Article 5 of the Hague Convention of 1930 on the Conflict of
Nationality Laws as follows:
Art. 5. Within a third State a person having more than one nationality shall be
treated as if he had only one. Without prejudice to the application of its law in
matters of personal status and of any convention in force, a third State shall, of the
nationalities which any such person possesses, recognize exclusively in its territory
either the nationality of the country in which he is habitually and principally resident
or the nationality of the country with which in the circumstances he appears to be in
fact most closely connected.
Nottebohm was a German by birth but a resident of Guatemala for 34 years when
he applied for and acquired naturalization in Liechtenstein one month before the
outbreak of World War II. Many members of his family and his business interests
were in Germany. In 1943, Guatemala, which had declared war on Germany,
arrested Nottebohm and confiscated all his properties on the ground that he was a
German national. Liechtenstein thereupon filed suit on his behalf, as its citizen,
against Guatemala. The International Court of Justice held Nottebohm to be still a
national of Germany, with which he was more closely connected than with
Liechtenstein.
That case is not relevant to the petition before us because it dealt with a conflict
between the nationality laws of two states as decided by a third state. No third state
is involved in the case at bar; in fact, even the United States is not actively claiming
Frivaldo as its national. The sole question presented to us is whether or not Frivaldo
is a citizen of the Philippines under our own laws, regardless of other nationality

laws. We can decide this question alone as sovereign of our own territory,
conformably to Section 1 of the said Convention providing that "it is for each State
to determine under its law who are its nationals."
It is also worth noting that Nottebohm was invoking his naturalization in
Liechtenstein whereas in the present case Frivaldo is rejecting his naturalization in
the United States.
If he really wanted to disavow his American citizenship and reacquire Philippine
citizenship, the petitioner should have done so in accordance with the laws of our
country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine
citizenship may be reacquired by direct act of Congress, by naturalization, or by
repatriation.
While Frivaldo does not invoke either of the first two methods, he nevertheless
claims he has reacquired Philippine citizenship by virtue of a valid repatriation. He
claims that by actively participating in the elections in this country, he
automatically forfeited American citizenship under the laws of the United States.
Such laws do not concern us here. The alleged forfeiture is between him and the
United States as his adopted country. It should be obvious that even if he did lose
his naturalized American citizenship, such forfeiture did not and could not have the
effect of automatically restoring his citizenship in the Philippines that he had earlier
renounced. At best, what might have happened as a result of the loss of his
naturalized citizenship was that he became a stateless individual.
Frivaldo's contention that he could not have repatriated himself under LOI 270
because the Special Committee provided for therein had not yet been constituted
seems to suggest that the lack of that body rendered his repatriation unnecessary.
That is far-fetched if not specious Such a conclusion would open the floodgates, as it
were. It would allow all Filipinos who have renounced this country to claim back
their abandoned citizenship without formally rejecting their adoptedstate and
reaffirming their allegiance to the Philippines.
It does not appear that Frivaldo has taken these categorical acts. He contends that
by simply filing his certificate of candidacy he had, without more, already effectively
recovered Philippine citizenship. But that is hardly the formal declaration the law
envisions surely, Philippine citizenship previously disowned is not that cheaply
recovered. If the Special Committee had not yet been convened, what that meant
simply was that the petitioner had to wait until this was done, or seek naturalization
by legislative or judicial proceedings.
The argument that the petition filed with the Commission on Elections should be
dismissed for tardiness is not well-taken. The herein private respondents are
seeking to prevent Frivaldo from continuing to discharge his office of governor
because he is disqualified from doing so as a foreigner. Qualifications for public
office are continuing requirements and must be possessed not only at the time of
appointment or election or assumption of office but during the officer's entire
tenure. Once any of the required qualifications is lost, his title may be seasonably
challenged. If, say, a female legislator were to marry a foreigner during her term
and by her act or omission acquires his nationality, would she have a right to remain

in office simply because the challenge to her title may no longer be made within ten
days from her proclamation? It has been established, and not even denied, that the
evidence of Frivaldo's naturalization was discovered only eight months after his
proclamation and his title was challenged shortly thereafter.
This Court will not permit the anomaly of a person sitting as provincial governor in
this country while owing exclusive allegiance to another country. The fact that he
was elected by the people of Sorsogon does not excuse this patent violation of the
salutary rule limiting public office and employment only to the citizens of this
country. The qualifications prescribed for elective office cannot be erased by the
electorate alone. The will of the people as expressed through the ballot cannot cure
the vice of ineligibility, especially if they mistakenly believed, as in this case, that
the candidate was qualified. Obviously, this rule requires strict application when the
deficiency is lack of citizenship. If a person seeks to serve in the Republic of the
Philippines, he must owe his total loyalty to this country only, abjuring and
renouncing all fealty and fidelity to any other state.
It is true as the petitioner points out that the status of the natural-born citizen is
favored by the Constitution and our laws, which is all the more reason why it should
be treasured like a pearl of great price. But once it is surrendered and renounced,
the gift is gone and cannot be lightly restored. This country of ours, for all its
difficulties and limitations, is like a jealous and possessive mother. Once rejected, it
is not quick to welcome back with eager arms its prodigal if repentant children. The
returning renegade must show, by an express and unequivocal act, the renewal of
his loyalty and love.
WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is hereby
declared not a citizen of the Philippines and therefore DISQUALIFIED from serving as
Governor of the Province of Sorsogon. Accordingly, he is ordered to vacate his office
and surrender the same to the duly elected Vice-Governor of the said province once
this decision becomes final and executory. The temporary restraining order dated
March 9, 1989, is LIFTED.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin,
Grio-Aquino, Medialdea and Regalado, JJ., concur.
Sarmiento, J., took no part.
Cortes J., concurs in the result.

Separate Opinions
GUTIERREZ, JR., J., concurring:
I concur in the pragmatic approach taken by the Court. I agree that when the higher
interests of the State are involved, the public good should supersede any procedural

infinities which may affect a petition filed with the Commission on Elections. I fail to
see how the Court could allow a person who by his own admissions is indubitably an
alien to continue holding the office of Governor of any province.
It is an established rule of long standing that the period fixed by law for the filing of
a protest whether quo warranto or election contest is mandatory and
jurisdictional. 1
As a rule, the quo warranto petition seeking to annul the petitioner's election and
proclamation should have been filed with ten days after the proclamation of election
results. 2 The purpose of the law in not allowing the filing of protests beyond the
period fixed by law is to have a certain and definite time within which petitions
against the results of an election should be filed and to provide summary
proceedings for the settlement of such disputes. 3 The Rules of Court allow the
Republic of the Philippines to file quo warranto proceedings against any public
officer who performs an act which works a forfeiture of his office. 4 However, where
the Solicitor General or the President feel that there are no good reasons to
commence quo warranto proceedings, 5 the Court should allow a person like
respondent Estuye or his league to bring the action.
I must emphasize, however, that my concurrence is limited to a clear case of an
alien holding an elective public office. And perhaps in a clear case of disloyalty to
the Republic of the Philippines. 6 Where the disqualification is based on age,
residence, or any of the many grounds for ineligibility, 7 I believe that the ten-day
period should be applied strictly.
The pragmatic approach is also shown by the fact that the Court found it
inexpedient to wait for the final decision of COMELEC. This step is most unusual but
considering the total lack of any serious grounds for the petitioner's claim of having
regained his Philippine citizenship, I am constrained to concur in the procedure pro
hac vice.

Separate Opinions
GUTIERREZ, JR., J., concurring:
I concur in the pragmatic approach taken by the Court. I agree that when the higher
interests of the State are involved, the public good should supersede any procedural
infinities which may affect a petition filed with the Commission on Elections. I fail to
see how the Court could allow a person who by his own admissions is indubitably an
alien to continue holding the office of Governor of any province.
It is an established rule of long standing that the period fixed by law for the filing of
a protest whether quo warranto or election contest is mandatory and
jurisdictional. 1
As a rule, the quo warranto petition seeking to annul the petitioner's election and
proclamation should have been filed with ten days after the proclamation of election

results. 2 The purpose of the law in not allowing the filing of protests beyond the
period fixed by law is to have a certain and definite time within which petitions
against the results of an election should be filed and to provide summary
proceedings for the settlement of such disputes. 3 The Rules of Court allow the
Republic of the Philippines to file quo warranto proceedings against any public
officer who performs an act which works a forfeiture of his office. 4 However, where
the Solicitor General or the President feel that there are no good reasons to
commence quo warranto proceedings, 5 the Court should allow a person like
respondent Estuye or his league to bring the action.
I must emphasize, however, that my concurrence is limited to a clear case of an
alien holding an elective public office. And perhaps in a clear case of disloyalty to
the Republic of the Philippines. 6 Where the disqualification is based on age,
residence, or any of the many grounds for ineligibility, 7 I believe that the ten-day
period should be applied strictly.
The pragmatic approach is also shown by the fact that the Court found it
inexpedient to wait for the final decision of COMELEC. This step is most unusual but
considering the total lack of any serious grounds for the petitioner's claim of having
regained his Philippine citizenship, I am constrained to concur in the procedure pro
hac vice.
Frivaldo v. Comelec 1996
EN BANC
[G.R. No. 120295. June 28, 1996]
JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS, and RAUL R. LEE,
respondents.
[G.R. No. 123755. June 28, 1996]
RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G. FRIVALDO,
respondents.
DECISION
PANGANIBAN, J.:
The ultimate question posed before this Court in these twin cases is: Who should be
declared the rightful governor of Sorsogon
(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in
three successive elections but who was twice declared by this Court to be
disqualified to hold such office due to his alien citizenship, and who now claims to
have re-assumed his lost Philippine citizenship thru repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the
votes cast in favor of Frivaldo should be considered void; that the electorate should
be deemed to have intentionally thrown away their ballots; and that legally, he
secured the most number of valid votes; or

(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted
directly to the position of governor, but who according to prevailing jurisprudence
should take over the said post inasmuch as, by the ineligibility of Frivaldo, a
"permanent vacancy in the contested office has occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on repatriation,
clarifies/reiterates/amplifies existing jurisprudence on citizenship and elections, and
upholds the superiority of substantial justice over pure legalisms.
G.R. No. 123755.
This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari
and preliminary injunction to review and annul a Resolution of the respondent
Commission on Elections (Comelec), First Division,1 promulgated on December
19,19952 and another Resolution of the Comelec en bane promulgated February 23,
19963 denying petitioner's motion for reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of
Candidacy for the office of Governor of Sorsogon in the May 8, 1995 elections. On
March 23, 1995, petitioner Raul R. Lee, another candidate, filed a petition4 with the
Comelec docketed as SPA No. 95-028 praying that Frivaldo "be disqualified from
seeking or holding any public office or position by reason of not yet being a citizen
of the Philippines," and that his Certificate of Candidacy be cancelled. On May 1,
1995, the Second Division of the Comelec promulgated a Resolution5 granting the
petition with the following disposition:6
"WHEREFORE, this Division resolves to GRANT the petition and declares that
respondent is DISQUALIFIED to run for the Office of Governor of Sorsogon on the
ground that he is NOT a citizen of the Philippines. Accordingly, respondent's
certificate of candidacy is cancelled."
The Motion for Reconsideration filed by Frivaldo remained unacted upon until after
the May 8, 1995 elections. So, his candidacy continued and he was voted for during
the elections held on said date. On May 11, 1995, the Comelec en banc7 affirmed
the aforementioned Resolution of the Second Division.
The Provincial Board of Canvassers completed the canvass of the election returns
and a Certificate of Votes8.dated May 27, 1995 was issued showing the following
votes obtained by the candidates for the position of Governor of Sorsogon:
Antonio H. Escudero, Jr.
Juan G. Frivaldo
RaulR.Lee
Isagani P. Ocampo

51,060
73,440
53,304
1,925

On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition9
praying for his proclamation as the duly-elected Governor of Sorsogon.
In an order10 dated June 21, 1995, but promulgated according to the petition "only
on June 29, 1995," the Comelec en bane directed "the Provincial Board of
Canvassers of Sorsogon to reconvene for the purpose of proclaiming candidate Raul
Lee as the winning gubernatorial candidate in the province of Sorsogon on June
29,1995 x x x." Accordingly, at 8:30 in the evening of June 30,1995, Lee was
proclaimed governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new petition,11 docketed as SPC
No. 95-317, praying for the annulment of the June 30, 1995 proclamation of Lee and
for his own proclamation. He alleged that on June 30, 1995, at 2:00 in the afternoon,
he took his oath of allegiance as a citizen of the Philippines after "his petition for
repatriation under P.D. 725 which he filed with the Special Committee on
Naturalization in September 1994 had been granted." As such, when "the said order
(dated June 21, 1995) (of the Comelec) x x x was released and received by Frivaldo
on June 30, 1995 at 5:30 o'clock in the evening, there was no more legal
impediment to the proclamation (of Frivaldo) as governor x x x." In the alternative,
he averred that pursuant to the two cases of Labo vs. Comelec,12 the ViceGovernor not Lee should occupy said position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein assailed
Resolution13 holding that Lee, "not having garnered the highest number of votes,"
was not legally entitled to be proclaimed as duly-elected governor; and that
Frivaldo, "having garnered the highest number of votes, and xxx having reacquired
his Filipino citizenship by repatriation on June 30, 1995 under the provisions of
Presidential Decree No. 725 xxx (is) qualified to hold the office of governor of
Sorsogon"; thus:
"PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to
GRANT the Petition.
Consistent with the decisions of the Supreme Court, the proclamation of Raul R. Lee
as Governor of Sorsogon is hereby ordered annulled, being contrary to law, he not
having garnered the highest number of votes to warrant his proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial
Board of Canvassers is directed to immediately reconvene and, on the basis of the
completed canvass, proclaim petitioner Juan G. Frivaldo as the duly elected
Governor of Sorsogon having garnered the highest number of votes, and he having
reacquired his Filipino citizenship by repatriation on June 30,1995 under the
provisions of Presidential Decree No. 725 and, thus, qualified to hold the office of
Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the
Clerk of the Commission is directed to notify His Excellency the President of the
Philippines, and the Secretary of the Sangguniang Panlalawigan of the Province of
Sorsogon of this resolution immediately upon the due implementation thereof."

On December 26,1995, Lee filed a motion for reconsideration which was denied by
the Comelec en banc in its Resolution14 promulgated on February 23, 1996. On
February 26, 1996, the present petition was filed. Acting on the prayer for a
temporary restraining order, this Court issued on February 27, 1996 a Resolution
which inter alia directed the parties "to maintain the status quo prevailing prior to
the filing of this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand briefly be capsulized in the following
propositions":15
"First - The initiatory petition below was so far insufficient in form and substance to
warrant the exercise by the COMELEC of its jurisdiction with the result that, in effect,
the COMELEC acted without jurisdiction in taking cognizance of and deciding said
petition;
Second- The judicially declared disqualification of respondent was a continuing
condition and rendered him ineligible to run for, to be elected to and to hold the
Office of Governor;
Third - The alleged repatriation of respondent was neither valid nor is the effect
thereof retroactive as to cure his ineligibility and qualify him to hold the Office of
Governor; and
Fourth - Correctly read and applied, the Labo Doctrine fully supports the validity of
petitioner's proclamation as duly elected Governor of Sorsogon."
G.R. No. 120295
This is a petition to annul three Resolutions of the respondent Comelec, the first two
of which are also at issue in G.R. No. 123755, as follows:
1. Resolution16 of the Second Division, promulgated on May 1, 1995, disqualifying
Frivaldo from running for governor of Sorsogon in the May 8, 1995 elections "on the
ground that he is not a citizen of the Philippines";
2. Resolution17 of the Comelec en bane, promulgated on May 11, 1995; and
3. Resolution18 of the Comelec en bane, promulgated also on May 11, 1995
suspending the proclamation of, among others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No. 123755.
However, Frivaldo assails the above-mentioned resolutions on a different ground:
that under Section 78 of the Omnibus Election Code, which is reproduced
hereinunder:

"Section 78. Petition to deny due course or to cancel a certificate of candidacy. A

verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of
the filing of the certificate of candidacy and shall be decided, after notice and
hearing, not later than fifteen days before the election." (Italics supplied.)
the Comelec had no jurisdiction to issue said Resolutions because they were not
rendered "within the period allowed by law," i.e., "not later than fifteen days before
the election."
Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the
petition for disqualification within the period of fifteen days prior to the election as
provided by law is a jurisdictional defect which renders the said Resolutions null and
void.
By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and
123755 since they are intimately related in their factual environment and are
identical in the ultimate question raised, viz., who should occupy the position of
governor of the province of Sorsogon.
On March 19, 1995, the Court heard oral argument from the parties and required
them thereafter to file simultaneously their respective memoranda.
The Consolidated Issues
From the foregoing submissions, the consolidated issues may be restated as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his
lack of citizenship as to qualify him to be proclaimed and to hold the Office of
Governor? If not, may it be given retroactive effect? If so, from when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a
continuing bar to his eligibility to run for, be elected to or hold the governorship of
Sorsogon?
3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC
No. 95-317 considering that : said petition is not "a pre-proclamation case, an
election protest or a quo warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of
existing jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in
promulgating the assailed Resolutions, all of which prevented Frivaldo from
assuming the governorship of Sorsogon, considering that they were not rendered
within ( the period referred to in Section 78 of the Omnibus Election Code, viz., "not
later than fifteen days before the elections"?

The First Issue: Frivaldo's Repatriation

The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold
legal issue in this case. All the other matters raised are secondary to this.
The Local Government Code of 199119 expressly requires Philippine citizenship as a
qualification for elective local officials, including that of provincial governor, thus:
"Sec. 39. Qualifications. (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province or, in
the case of a member of the sangguniang panlalawigan, sangguniang panlungsod,
or sangguniang bayan, the district where he intends to be elected; a resident
therein for at least one (1) year immediately preceding the day of the election; and
able to read and write Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice governor or member of the
sangguniang panlalawigan, or mayor, vice mayor or member of the sangguniang
panlungsod of highly urbanized cities must be at least twenty-three (23) years of
age on election day.
xxx

xxx

xxx

Inasmuch as Frivaldo had been declared by this Court20 as a non-citizen, it is

therefore incumbent upon him to show that he has reacquired citizenship; in fine,
that he possesses the qualifications prescribed under the said statute (R. A. 7160).
Under Philippine law,21 citizenship may be reacquired by direct act of Congress, by
naturalization or by repatriation. Frivaldo told this Court in G.R. No. 10465422 and
during the oral argument in this case that he tried to resume his citizenship by
direct act of Congress, but that the bill allowing him to do so "failed to materialize,
notwithstanding the endorsement of several members of the House of
Representatives" due, according to him, to the "maneuvers of his political rivals." In
the same case, his attempt at naturalization was rejected by this Court because of
jurisdictional, substantial and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected
governor by the electorate of Sorsogon, with a margin of 27,000 votes in the 1988
elections, 57,000 in 1992, and 20,000 in 1995 over the same opponent Raul Lee.
Twice, he was judicially declared a non-Filipino and thus twice disqualified from
holding and discharging his popular mandate. Now, he comes to us a third time,
with a fresh vote from the people of Sorsogon and a favorable decision from the
Commission on Elections to boot. Moreover, he now boasts of having successfully
passed through the third and last mode of reacquiring citizenship: by repatriation
under P.D. No. 725, with no less than the Solicitor General himself, who was the
prime opposing counsel in the previous cases he lost, this time, as counsel for corespondent Comelec, arguing the validity of his cause (in addition to his able private
counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance under the
provisions of said Decree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he
insists that henot Leeshould have been proclaimed as the duly-elected governor
of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m. on the said

date since, clearly and unquestionably, he garnered the highest number of votes in
the elections and since at that time, he already reacquired his citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted ; with serious defects,
which we shall now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively repealed," asserting that
"then President Corazon Aquino exercising legislative powers under the Transitory
Provisions of the 1987 Constitution, forbade the grant of citizenship by Presidential
Decree or Executive Issuances as the same poses a serious and contentious issue of
policy which the present government, in the exercise of prudence and sound
discretion, should best leave to the judgment of the first Congress under the 1987
Constitution," adding that in her memorandum dated March 27,1987 to the
members of the Special Committee on Naturalization constituted for purposes of
Presidential Decree No. 725, President Aquino directed them "to cease and desist
from undertaking any and all proceedings within your functional area of
responsibility as defined under Letter of Instructions (LOI) No. 270 dated April 11,
1975, as amended."23
This memorandum dated March 27, 198724 cannot by any stretch of legal
hermeneutics be construed as a law sanctioning or authorizing a repeal of P.D. No.
725. Laws are repealed only by subsequent ones25 and a repeal may be express or
implied. It is obvious that no express repeal was made because then President
Aquino in her memorandum based on the copy furnished us by Lee did not
categorically and/or impliedly state that P.D. 725 was being repealed or was being
rendered without any legal effect. In fact, she did not even mention it specifically by
its number or text. On the other hand, it is a basic rule of statutory construction that
repeals by implication are not favored. An implied repeal will not be allowed "unless
it is convincingly and unambiguously demonstrated that the two laws are clearly
repugnant and patently inconsistent that they cannot co-exist."26
The memorandum of then President Aquino cannot even be regarded as a
legislative enactment, for not every pronouncement of the Chief Executive even
under the Transitory Provisions of the 1987 Constitution can nor should be regarded
as an exercise of her law-making powers. At best, it could be treated as an
executive policy addressed to the Special Committee to halt the acceptance and
processing of applications for repatriation pending whatever "judgment the first
Congress under the 1987 Constitution" might make. In other words, the former
President did not repeal P.D. 725 but left it to the first Congress once createdto
deal with the matter. If she had intended to repeal such law, she should have
unequivocally said so instead of referring the matter to Congress. The fact is she
carefully couched her presidential issuance in terms that clearly indicated the
intention of "the present government, in the exercise of prudence and sound
discretion" to leave the matter of repeal to the new Congress. Any other
interpretation of the said Presidential Memorandum, such as is now being proffered
to the Court by Lee, would visit unmitigated violence not only upon statutory
construction but on common sense as well.
Second. Lee also argues that "serious congenital irregularities flawed the
repatriation proceedings," asserting that Frivaldo's application therefor was "filed on

June 29, 1995 x x x (and) was approved in just one day or on June 30, 1995 x x x,"
which "prevented a judicious review and evaluation of the merits thereof." Frivaldo
counters that he filed his application for repatriation with the Office of the President
in Malacanang Palace on August 17, 1994. This is confirmed by the Solicitor
General. However, the Special Committee was reactivated only on June 8, 1995,
when presumably the said Committee started processing his application. On June
29, 1995, he filled up and re-submitted the FORM that the Committee required.
Under these circumstances, it could not be said that there was "indecent haste" in
the processing of his application.
Anent Lee's charge that the "sudden reconstitution of the Special Committee on
Naturalization was intended solely for the personal interest of respondent,"27 the
Solicitor General explained during the oral argument on March 19, 1996 that such
allegation is simply baseless as there were many others who applied and were
considered for repatriation, a list of whom was submitted by him to this Court,
through a Manifestation28 filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that the presumption of
regularity in the performance of official duty and the presumption of legality in the
repatriation of Frivaldo have not been successfully rebutted by Lee. The mere fact
that the proceedings were speeded up is by itself not a ground to conclude that
such proceedings were necessarily tainted. After all, the requirements of
repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious
and cumbersome. In fact, P.D. 72529 itself requires very little of an applicant, and
even the rules and regulations to implement the said decree were left to the Special
Committee to promulgate. This is not unusual since, unlike in naturalization where
an alien covets a first-time entry into Philippine political life, in repatriation the
applicant is a former natural-born Filipino who is merely seeking to reacquire his
previous citizenship. In the case of Frivaldo, he was undoubtedly a natural-born
citizen who openly and faithfully served his country and his province prior to his
naturalization in the United States a naturalization he insists was made necessary
only to escape the iron clutches of a dictatorship he abhorred and could not in
conscience embrace and who, after the fall of the dictator and the reestablishment of democratic space, wasted no time in returning to his country of
birth to offer once more his talent and services to his people.
So too, the fact that ten other persons, as certified to by the Solicitor General, were
granted repatriation argues convincingly and conclusively against the existence of
favoritism vehemently posited by Raul Lee. At any rate, any contest on the legality
of Frivaldo's repatriation should have been pursued before the Committee itself,
and, failing there, in the Office of the President, pursuant to the doctrine of
exhaustion of administrative remedies.
Third. Lee further contends that assuming the assailed repatriation to be valid,
nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995 whereas the
citizenship qualification prescribed by the Local Government Code "must exist on
the date of his election, if not when the certificate of candidacy is filed," citing our
decision in G.R. 10465430 which held that "both the Local Government Code and
the Constitution require that only Philippine citizens can run and be elected to Public
office" Obviously, however, this was a mere obiter as the only issue in said case was

whether Frivaldo's naturalization was valid or not and NOT the effective date
thereof. Since the Court held his naturalization to be invalid, then the issue of when
an aspirant for public office should be a citizen was NOT resolved at all by the Court.
Which question we shall now directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or province x x x where he
intends to be elected;
* a resident therein for at least one (1) year immediately preceding the day of the
election;
* able to read and write Filipino or any other local language or dialect."
* In addition, "candidates for the position of governor x x x must be at least twentythree (23) years of age on election day."
From the above, it will be noted that the law does not specify any particular date or
time when the candidate must possess citizenship, unlike that for residence (which
must consist of at least one year's residency immediately preceding the day of
election) and age (at least twenty three years of age on election day).
Philippine citizenship is an indispensable requirement for holding an elective public
office,31 and the purpose of the citizenship qualification is none other than to
ensure that no alien, i.e., no person owing allegiance to another nation, shall govern
our people and our country or a unit of territory thereof. Now, an official begins to
govern or to discharge his functions only upon his proclamation and on the day the
law mandates his term of office to begin. Since Frivaldo re-assumed his citizenship
on June 30, 1995the very day32 the term of office of governor (and other elective
officials) beganhe was therefore already qualified to be proclaimed, to hold such
office and to discharge the functions and responsibilities thereof as of said date. In
short, at that time, he was already qualified to govern his native Sorsogon. This is
the liberal interpretation that should give spirit, life and meaning to our law on
qualifications consistent with the purpose for which such law was enacted. So too,
even from a literal (as distinguished from liberal) construction, it should be noted
that Section 39 of the Local Government Code speaks of "Qualifications" of
"ELECTIVE OFFICIALS," not of candidates. Why then should such qualification be
required at the time of election or at the time of the filing of the certificates of
candidacies, as Lee insists? Literally, such qualifications unless otherwise
expressly conditioned, as in the case of age and residence should thus be
possessed when the "elective [or elected] official" begins to govern, i.e., at the time
he is proclaimed and at the start of his term in this case, on June 30, 1995.
Paraphrasing this Court's ruling in Vasquez vs. Giapand Li Seng Giap & Sons,33 if
the purpose of the citizenship requirement is to ensure that our people and country
do not end up being governed by aliens, i.e., persons owing allegiance to another
nation, that aim or purpose would not be thwarted but instead achieved by

construing the citizenship qualification as applying to the time of proclamation of

the elected official and at the start of his term.
But perhaps the more difficult objection was the one raised during the oral
argument34 to the effect that the citizenship qualification should be possessed at
the time the candidate (or for that matter the elected official) registered as a voter.
After all, Section 39, apart from requiring the official to be a citizen, also specifies as
another item of qualification, that he be a "registered voter." And, under the law35 a
"voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have
been a voter-much less a validly registered one if he was not a citizen at the time
of such registration.
The answer to this problem again lies in discerning the purpose of the requirement.
If the law intended the citizenship qualification to be possessed prior to election
consistent with the requirement of being a registered voter, then it would not have
made citizenship a SEPARATE qualification. The law abhors a redundancy. It
therefore stands to reason that the law intended CITIZENSHIP to be a qualification
distinct from being a VOTER, even if being a voter presumes being a citizen first. It
also stands to reason that the voter requirement was included as another
qualification (aside from "citizenship"), not to reiterate the need for nationality but
to require that the official be registered as a voter IN THE AREA OR TERRITORY he
seeks to govern, i.e., the law states: "a registered voter in the barangay,
municipality, city, or province x x x where he intends to be elected." It should be
emphasized that the Local Government Code requires an elective official to be a
registered voter. It does not require him to vote actually. Hence, registrationnot
the actual votingis the core of this "qualification." In other words, the law's
purpose in this second requirement is to ensure that the prospective official is
actually registered in the area he seeks to govern and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasizedand Lee has not disputed
that he "was and is a registered voter of Sorsogon, and his registration as a voter
has been sustained as valid by judicial declaration x x x In fact, he cast his vote in
his precinct on May 8, 1995."36
So too, during the oral argument, his counsel stead-fastly maintained that "Mr.
Frivaldo has always been a registered voter of Sorsogon. He has voted in
1987,1988,1992, then he voted again in 1995. In fact, his eligibility as a voter was
questioned, but the court dismissed (sic) his eligibility as a voter and he was
allowed to vote as in fact, he voted in all the previous elections including on May
8,1995.37
It is thus clear that Frivaldo is a registered voter in the province where he intended
to be elected.
There is yet another reason why the prime issue of citizenship should be reckoned
from the date of proclamation, not necessarily the date of election or date of filing
of the certificate of candidacy. Section 253 of the Omnibus Election Code38 gives
any voter, presumably including the defeated candidate, the opportunity to
question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision
of the Code that authorizes a remedy on how to contest before the Comelec an

incumbent's ineligibility arising from failure to meet the qualifications enumerated

under Sec. 39 of the Local Government Code. Such remedy of Quo Warranto can be
availed of "within ten days after proclamation" of the winning candidate. Hence, it is
only at such time that the issue of ineligibility may be taken cognizance of by the
Commission. And since, at the very moment of Lee's proclamation (8:30 p.m., June
30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having taken his
oath of allegiance earlier in the afternoon of the same day, then he should have
been the candidate proclaimed as he unquestionably garnered the highest number
of votes in the immediately preceding elections and such oath had already cured his
previous "judicially-declared" alienage. Hence, at such time, he was no longer
ineligible.
But to remove all doubts on this important issue, we also hold that the repatriation
of Frivaldo RETRO ACTED to the date of the filing of his application on August
17,1994.
It is true that under the Civil Code of the Philippines,39 "(l)aws shall have no
retroactive effect, unless the contrary is provided." But there are settled
exceptions40 to this general rule, such as when the statute is CURATIVE or
REMEDIAL in nature or when it CREATES NEW RIGHTS.
According to Tolentino,41 curative statutes are those which undertake to cure errors
and irregularities, thereby validating judicial or administrative proceedings, acts of
public officers, or private deeds and contracts which otherwise would not produce
their intended consequences by reason of some statutory disability or failure to
comply with some technical requirement. They operate on conditions already
existing, and are necessarily retroactive in operation. Agpalo,42 on the other hand,
says that curative statutes are "healing acts x x x curing defects and adding to the
means of enforcing existing obligations x x x (and) are intended to supply defects,
abridge superfluities in existing laws, and curb certain evils x x x By their very
nature, curative statutes are retroactive xxx (and) reach back to past events to
correct errors or irregularities and to render valid and effective attempted acts
which would be otherwise ineffective for the purpose the parties intended."
On the other hand, remedial or procedural laws, i.e., those statutes relating to
remedies or modes of procedure, which do not create new or take away vested
rights, but only operate in furtherance of the remedy or confirmation of such rights,
ordinarily do not come within the legal meaning of a retrospective law, nor within
the general rule against the retrospective operation of statutes.43
A reading of P.D. 725 immediately shows that it creates a new right, and also
provides for a new remedy, thereby filling certain voids in our laws. Thus, in its
preamble, P.D. 725 expressly recognizes the plight of "many Filipino women (who)
had lost their Philippine citizenship by marriage to aliens" and who could not, under
the existing law (C. A. No. 63, as amended) avail of repatriation until "after the
death of their husbands or the termination of their marital status" and who could
neither be benefitted by the 1973 Constitution's new provision allowing "a Filipino
woman who marries an alien to retain her Philippine citizenship xxx" because "such
provision of the new Constitution does not apply to Filipino women who had married
aliens before said constitution took effect." Thus, P.D. 725 granted a new right to

these womenthe right to re-acquire Filipino citizenship even during their marital
coverture, which right did not exist prior to P.D. 725. On the other hand, said statute
also provided a new remedy and a new right in favor of other "natural born Filipinos
who (had) lost their Philippine citizenship but now desire to re-acquire Philippine
citizenship," because prior to the promulgation of P.D. 725 such former Filipinos
would have had to undergo the tedious and cumbersome process of naturalization,
but with the advent of P.D. 725 they could now re-acquire their Philippine citizenship
under the simplified procedure of repatriation.
The Solicitor General44 argues:
"By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342),
since they are intended to supply defects, abridge superfluities in existing laws (Del
Castillo vs. Securities and Exchange Commission, 96 Phil. 119) and curb certain
evils (Santos vs. Duata, 14 SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in the existing
naturalization law, specifically C. A. No. 63 wherein married Filipino women are
allowed to repatriate only upon the death of their husbands, and natural-born
Filipinos who lost their citizenship by naturalization and other causes faced the
difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of Filipino
citizenship by naturalization.
Presidential Decree No. 725 provided a remedy for the aforementioned legal
aberrations and thus its provisions are considered essentially remedial and
curative."
In light of the foregoing, and prescinding from the wording of the preamble, it is
unarguable that the legislative intent was precisely to give the statute retroactive
operation. "(A) retrospective operation is given to a statute or amendment where
the intent that it should so operate clearly appears from a consideration of the act
as a whole, or from the terms thereof."45 It is obvious to the Court that the statute
was meant to "reach back" to those persons, events and transactions not otherwise
covered by prevailing law and jurisprudence. And inasmuch as it has been held that
citizenship is a political and civil right equally as important as the freedom of
speech, liberty of abode, the right against unreasonable searches and seizures and
other guarantees enshrined in the Bill of Rights, therefore the legislative intent to
give retrospective operation to P.D. 725 must be given the fullest effect possible.
"(I)t has been said that a remedial statute must be so construed as to make it effect
the evident purpose for -which it was enacted, so that if the reason of the statute
extends to past transactions, as well as to those in the future, then it will be so
applied although the statute does not in terms so direct, unless to do so would
impair some vested right or violate some constitutional guaranty."46 This is all the
more true of P.D. 725, which did not specify any restrictions on or delimit or qualify
the right of repatriation granted therein.
At this point, a valid question may be raised: How can the retroactivity of P.D. 725
benefit Frivaldo considering that said law was enacted on June 5,1975, while
Frivaldo lost his Filipino citizenship much later, on January 20, 1983, and applied for
repatriation even later, on August 17, 1994?

While it is true that the law was already in effect at the time that Frivaldo became
an American citizen, nevertheless, it is not only the law itself (P.D. 725) which is
tobe given retroactive effect, but even the repatriation granted under said law to
Frivaldo on June 30, 1995 is to be deemed to have retroacted to the date of his
application therefor, August 17, 1994. The reason for this is simply that if, as in this
case, it was the intent of the legislative authority that the law should apply to past
events i.e., situations and transactions existing even before the law came into
being in order to benefit the greatest number of former Filipinos possible thereby
enabling them to enjoy and exercise the constitutionally guaranteed right of
citizenship, and such legislative intention is to be given the fullest effect and
expression, then there is all the more reason to have the law apply in a retroactive
or retrospective manner to situations, events and transactions subsequent to the
passage of such law. That is, the repatriation granted to Frivaldo on June 30, 1995
can and should be made to take effect as of date of his application. As earlier
mentioned, there is nothing in the law that would bar this or would show a contrary
intention on the part of the legislative authority; and there is no showing that
damage or prejudice to anyone, or anything unjust or injurious would result from
giving retroactivity to his repatriation. Neither has Lee shown that there will result
the impairment of any contractual obligation, disturbance of any vested right or
breach of some constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo deserves a
liberal interpretation of Philippine laws and whatever defects there were in his
nationality should now be deemed mooted by his repatriation.
Another argument for retroactivity to the date of filing is that it would prevent
prejudice to applicants. If P.D. 725 were not to be given retroactive effect, and the
Special Committee decides not to act, i.e., to delay the processing of applications
for any substantial length of time, then the former Filipinos who may be stateless,
as Frivaldohaving already renounced his American citizenship was, may be
prejudiced for causes outside their control. This should not be. In case of doubt in
the interpretation or application of laws, it is to be presumed that the law-making
body intended right and justice to prevail.47
And as experience will show, the Special Committee was able to process, act upon
and grant applications for repatriation within relatively short spans of time after the
same were filed.48 The fact that such interregna were relatively insignificant
minimizes the likelihood of prejudice to the government as a result of giving
retroactivity to repatriation. Besides, to the mind of the Court, direct prejudice to
the government is possible only where a person's repatriation has the effect of
wiping out a liability of his to the government arising in connection with or as a
result of his being an alien, and accruing only during the interregnum between
application and approval, a situation that is not present in the instant case.
And it is but right and just that the mandate of the people, already twice frustrated,
should now prevail. Under the circumstances, there is nothing unjust or iniquitous in
treating Frivaldo's repatriation as having become effective as of the date of his
application, i.e., on August 17, 1994. This being so, all questions about his
possession of the nationality qualification whether at the date of proclamation

(June 30, 1995) or the date of election (May 8, 1995) or date of filing his certificate
of candidacy (March 20, 1995) would become moot.
Based on the foregoing, any question regarding Frivaldo's status as a registered
voter would also be deemed settled. Inasmuch as he is considered as having been
repatriatedi.e., his Filipino citizenship restored as of August 17, 1994, his
previous registration as a voter is likewise deemed validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became an American. Would the
retroactivity of his repatriation not effectively give him dual citizenship, which under
Sec. 40 of the Local Government Code would disqualify him "from running for any
elective local position?"49 We answer this question in the negative, as there is
cogent reason to hold that Frivaldo was really STATELESS at the time he took said
oath of allegiance and even before that, when he ran for governor in 1988. In his
Comment, Frivaldo wrote that he "had long renounced and had long abandoned his
American citizenshiplong before May 8, 1995. At best, Frivaldo was stateless in
the interim when he abandoned and renounced his US citizenship but before he
was repatriated to his Filipino citizenship."50
On this point, we quote from the assailed Resolution dated December 19, 1995:51
"By the laws of the United States, petitioner Frivaldo lost his American citizenship
when he took his oath of allegiance to the Philippine Government when he ran for
Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an
oath of allegiance to the Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long before the
elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic
that such findings of the Commission are conclusive upon this Court, absent any
showing of capriciousness or arbitrariness or abuse.52
The Second Issue: Is Lack of Citizenship a Continuing Disqualification?
Lee contends that the May 1,1995 Resolution53 of the Comelec Second Division in
SPA No. 95-028 as affirmed in toto by Comelec En Banc in its Resolution of May 11,
1995 "became final and executory after five (5) days or on May 17,1995, no
restraining order having been issued by this Honorable Court."54 Hence, before Lee
"was proclaimed as the elected governor on June 30, 1995, there was already a final
and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two
rulings (which Frivaldo now concedes were legally "correct") declaring Frivaldo an
alien have also become final and executory way before the 1995 elections, and
these "judicial pronouncements of his political status as an American citizen
absolutely and for all time disqualified (him) from running for, and holding any
public office in the Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was
rendered in connection with the 1988 elections while that in G.R. No. 104654 was in
connection with the 1992 elections. That he was disqualified for such elections is

final and can no longer be changed. In the words of the respondent Commission
(Second Division) in its assailed Resolution:55
"The records show that the Honorable Supreme Court had decided that Frivaldo was
not a Filipino citizen and thus disqualified for the purpose of the 1988 and 1992
elections. However, there is no record of any 'final judgment' of the disqualification
of Frivaldo as a candidate for the May 8, 1995 elections. What the Commission said
in its Order of June 21, 1995 (implemented on June 30, 1995), directing the
proclamation of Raul R. Lee, was that Frivaldo was not a Filipino citizen 'having been
declared by the Supreme Court in its Order dated March 25, 1995, not a citizen of
the Philippines.' This declaration of the Supreme Court, however, was in connection
with the 1992 elections."
Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a
person's future status with finality. This is because a person may subsequently
reacquire, or for that matter lose, his citizenship under any of the modes recognized
by law for the purpose. Hence, in Lee vs. Commissioner of Immigration,56 we held:
"Everytime the citizenship of a person is material or indispensable in a judicial or
administrative case, whatever the corresponding court or administrative authority
decides therein as to such citizenship is generally not considered res judicata, hence
it has to be threshed out again and again, as the occasion demands."
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to entertain the petition
in SPC No. 95-317 because the only "possible types of proceedings that may be
entertained by the Comelec are a pre-proclamation case, an election protest or a
quo warranto case." Again, Lee reminds us that he was proclaimed on June 30, 1995
but that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation only on
July 6, 1995 "beyond the 5-day reglementary period." Hence, according to him,
Frivaldo's "recourse was to file either an election protest or a quo warranto action."
This argument is not meritorious. The Constitution57 has given the Comelec ample
power to "exercise exclusive original jurisdiction over all contests relating to the
elections, returns and qualifications of all elective x x x provincial x x x officials."
Instead of dwelling at length on the various petitions that Comelec, in the exercise
of its constitutional prerogatives, may entertain, suffice
it to say that this Court has invariably recognized the Commission's authority to
hear and decide petitions for annulment of proclamations of which SPC No. 95-317
obviously is one.58 Thus, in Mentang vs. COMELEC,59 we ruled:
"The petitioner argues that after proclamation and assumption of office, a preproclamation controversy is no longer viable. Indeed, we are aware of cases holding
that pre-proclamation controversies may no longer be entertained by the COMELEC
after the winning candidate has been proclaimed, (citing Gallardo vs. Rimando, 187
SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171 SCRA
468.) This rule, however, is premised on an assumption that the proclamation is no

proclamation at all and the proclaimed candidate's assumption of office cannot

deprive the COMELEC of the power to make such declaration of nullity. (citing
Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs. COMELEC, 186 SCRA 484.)"
The Court however cautioned that such power to annul a proclamation must "be
done within ten (10) days following the proclamation." Inasmuch as Frivaldo's
petition was filed only six (6) days after Lee's proclamation, there is no question
that the Comelec correctly acquired jurisdiction over the same.
The Fourth Issue: Was Lee's Proclamation Valid
Frivaldo assails the validity of the Lee proclamation. We uphold him for the following
reasons:
First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact remains that he
(Lee) was not the choice of the sovereign will," and in Aquino vs. COMELEC,61 Lee is
"a second placer, xxx just that, a second placer."
In spite of this, Lee anchors his claim to the governorship on the pronouncement of
this Court in the aforesaid Labo62 case, as follows:
"The rule would have been different if the electorate fully aware in fact and in law of
a candidate's disqualification so as to bring such awareness within the realm of
notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In
such case, the electorate may be said to have waived the validity and efficacy of
their votes by notoriously misapplying their franchise or throwing away their votes,
in which case, the eligible candidate obtaining the next higher number of votes may
be deemed elected."
But such holding is qualified by the next paragraph, thus:
"But this is not the situation obtaining in the instant dispute. It has not been shown,
and none was alleged, that petitioner Labo was notoriously known as an ineligible
candidate, much less the electorate as having known of such fact. On the contrary,
petitioner Labo was even allowed by no less than the Comelec itself in its resolution
dated May 10, 1992 to be voted for the office of the city mayor as its resolution
dated May 9,1992 denying due course to petitioner Labo's certificate of candidacy
had not yet become final and subject to the final outcome of this case."
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in
this case because Frivaldo was in 1995 in an identical situation as Labo was in 1992
when the Comelec's cancellation of his certificate of candidacy was not yet final on
election day as there was in both cases a pending motion for reconsideration, for
which reason Comelec issued an (omnibus) resolution declaring that Frivaldo (like
Labo in 1992) and several others can still be voted for in the May 8, 1995 election,
as in fact, he was.
Furthermore, there has been no sufficient evidence presented to show that the
electorate of Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged
disqualification as to "bring such awareness within the realm of notoriety", in other

words, that the voters intentionally wasted their ballots knowing that, in spite of
their voting for him, he was ineligible. If Labo has any relevance at all, it is that the
vice-governor and not Leeshould be proclaimed, since in losing the election, Lee
was, to paraphrase Labo again, "obviously not the choice of the people" of
Sorsogon. This is the emphatic teaching of Labo:
"The rule, therefore, is: the ineligibility of a candidate receiving majority votes does
not entitle the eligible candidate receiving the next highest number of votes to be
declared elected. A minority or defeated candidate cannot be deemed elected to
the office."
Second. As we have earlier declared Frivaldo to have seasonably re-acquired his
citizenship and inasmuch as he obtained the highest number of votes in the 1995
elections, henot Lee should be proclaimed. Hence, Lee's proclamation was
patently erroneous and should now be corrected.
The Fifth Issue: Is Section 78 of the Election Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec
(Second Division) dated May 1, 1995 and the confirmatory en banc Resolution of
May 11, 1995 disqualifying him for want of citizenship should be annulled because
they were rendered beyond the fifteen (15) day period prescribed by Section 78 of
the Omnibus Election Code which reads as follows:
"Section 78. Petition to deny due course or to cancel a certificate of candidacy. A
verified petition seeking to deny due course or to cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of
the filing of the certificate of candidacy and shall be decided after notice and
hearing, not later than fifteen days before the election" (italics supplied.)
This claim is now moot and academic inasmuch as these resolutions are deemed
superseded by the subsequent ones issued by the Commission (First Division) on
December 19, 1995, affirmed en banc63 on February 23, 1996, which both upheld
his election. At any rate, it is obvious that Section 78 is merely directory as Section
6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for
disqualifications even after the elections, thus:
"SEC. 6. Effect of Disqualification Case. Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the -winning
number of votes in such election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of his
guilt is strong." (Italics supplied)
Refutation of Mr. Justice Davide's Dissent

In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that
President Aquino's memorandum dated March 27, 1987 should be viewed as a
suspension (not a repeal, as urged by Lee) of P.D. 725. But whether it decrees a
suspension or a repeal is a purely academic distinction because the said issuance is
not a statute that can amend or abrogate an existing law. The existence and
subsistence of P.D. 725 were recognized in the first Frivaldo case;64 viz, "(u)nder CA
No. 63 as amended by CA No. 473 and P.D. No. 725, Philippine citizenship maybe
reacquired by xxx repatriation" He also contends that by allowing Frivaldo to
register and to remain as a registered voter, the Comelec and in effect this Court
abetted a "mockery" of our two previous judgments declaring him a non-citizen. We
do not see such abetting or mockery. The retroactivity of his repatriation, as
discussed earlier, legally cured whatever defects there may have been in his
registration as a voter for the purpose of the 1995 elections. Such retroactivity did
not change his disqualifications in 1988 and 1992, which were the subjects of such
previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to
question the ineligibility of a candidate, citing the Comelec's authority under Section
78 of the Omnibus Election Code allowing the denial of a certificate of candidacy on
the ground of a false material representation therein as required by Section 74.
Citing Loong, he then states his disagreement with our holding that Section 78 is
merely directory. We really have no quarrel. Our point is that Frivaldo was in error in
his claim in G.R. No. 120295 that the Comelec Resolutions promulgated on May 1,
1995 and May 11, 1995 were invalid because they were issued "not later than
fifteen days before the election" as prescribed by Section 78. In dismissing the
petition in G.R. No. 120295, we hold that the Comelec did not commit grave abuse
of discretion because "Section 6 of R. A. 6646 authorizes the Comelec to try and
decide disqualifications even after the elections." In spite of his disagreement with
us on this point, i.e., that Section 78 "is merely directory," we note that just like us,
Mr. Justice Davide nonetheless votes to "DISMISS G.R. No. 120295." One other point.
Loong, as quoted in the dissent, teaches that a petition to deny due course under
Section 78 must be filed within the 25-day period prescribed therein. The present
case however deals with the period during which the Comelec may decide such
petition. And we hold that it may be decided even after the fifteen day period
mentioned in Section 78. Here, we rule that a decision promulgated by the Comelec
even after the elections is valid but Loong held that a petition filed beyond the 25day period is out of time. There is no inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's holding that, given the unique
factual circumstances of Frivaldo, repatriation may be given retroactive effect. He
argues that such retroactivity "dilutes" our holding in the first Frivaldo case. But the
first (and even the second Frivaldo) decision did not directly involve repatriation as
a mode of acquiring citizenship. If we may repeat, there is no question that Frivaldo
was not a Filipino for purposes of determining his qualifications in the 1988 and
1992 elections. That is settled. But his supervening repatriation has changed his
political status not in 1988 or 1992, but only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was stateless prior to
his repatriation, saying that "informal renunciation or abandonment is not a ground

to lose American citizenship." Since our courts are charged only with the duty of the
determining who are Philippine nationals, we cannot rule on the legal question of
who are or who are not Americans. It is basic in international law that a State
determines ONLY those who are its own citizens not who are the citizens of other
countries.65 The issue here is: the Comelec made a finding of fact that Frivaldo was
stateless and such finding has not been shown by Lee to be arbitrary or whimsical.
Thus, following settled case law, such finding is binding and final.
The dissenting opinion also submits that Lee who lost by chasmic margins to
Frivaldo in all three previous elections, should be declared winner because
"Frivaldo's ineligibility for being an American was publicly known." First, there is
absolutely no empirical evidence for such "public" knowledge. Second, even if there
is, such knowledge can be true post facto only of the last two previous elections.
Third, even the Comelec and now this Court were/are still deliberating on his
nationality before, during and after the 1995 elections. How then can there be such
"public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code refers to
the qualifications of elective local officials, i.e., candidates, and not elected officials,
and that the citizenship qualification [under par. (a) of that section] must be
possessed by candidates, not merely at the commencement of the term, but by
election day at the latest. We see it differently. Section 39, par. (a) thereof speaks of
"elective local official" while par. (b) to (f) refer to "candidates." If the qualifications
under par. (a) were intended to apply to "candidates" and not elected officials, the
legislature would have said so, instead of differentiating par. (a) from the rest of the
paragraphs. Secondly, if Congress had meant that the citizenship qualification
should be possessed at election day or prior thereto, it would have specifically
stated such detail, the same way it did in pars. (b) to (f) for other qualifications of
candidates for governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's
repatriation on the ground, among others, that the law specifically provides that it is
only after taking the oath of allegiance that applicants shall be deemed to have
reacquired Philippine citizenship. We do not question what the provision states. We
hold however that the provision should be understood thus: that after taking the
oath of allegiance the applicant is deemed to have reacquired Philippine citizenship,
which reacquisition (or repatriation) is deemed for all purposes and intents to have
retroacted to the date of his application therefor.
In any event, our "so too" argument regarding the literal meaning of the word
"elective" in reference to Section 39 of the Local Government Code, as well as
regarding Mr. Justice Davide's thesis that the very wordings of P.D. 725 suggest nonretroactivity, were already taken up rather extensively earlier in this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to
uphold the Rule of Law." We agree we must all follow the rule of law. But that is
NOT the issue here. The issue is how should the law be interpreted and applied in
this case so it can be followed, so it can rule!

At balance, the question really boils down to a choice of philosophy and perception
of how to interpret and apply laws relating to elections: literal or liberal; the letter or
the spirit; the naked provision or its ultimate purpose; legal syllogism or substantial
justice; in isolation or in the context of social conditions; harshly against or gently in
favor of the voters' obvious choice. In applying election laws, it would be far better
to err in favor of popular sovereignty than to be right in complex but little
understood legalisms. Indeed, to inflict a thrice rejected candidate upon the
electorate of Sorsogon would constitute unmitigated judicial tyranny and an
unacceptable assault upon this Court's conscience.
EPILOGUE
In sum, we rule that the citizenship requirement in the Local Government Code is to
be possessed by an elective official at the latest as of the time he is proclaimed and
at the start of the term of office to which he has been elected. We further hold P.D.
No. 725 to be in full force and effect up to the present, not having been suspended
or repealed expressly nor impliedly at any time, and Frivaldo's repatriation by virtue
thereof to have been properly granted and thus valid and effective. Moreover, by
reason of the remedial or curative nature of the law granting him a new right to
resume his political status and the legislative intent behind it, as well as his unique
situation of having been forced to give up his citizenship and political aspiration as
his means of escaping a regime he abhorred, his repatriation is to be given
retroactive effect as of the date of his application therefor, during the pendency of
which he was stateless, he having given ' up his U. S. nationality. Thus, in
contemplation of law, he possessed the vital requirement of Filipino citizenship as of
the start of the term of office of governor, and should have been proclaimed instead
of Lee. Furthermore, since his reacquisition of citizenship retroacted to August 17,
1994, his registration as a voter of Sorsogon is deemed to have been validated as of
said date as well. The foregoing, of course, are precisely consistent with our holding
that lack of the citizenship requirement is not a continuing disability or
disqualification to run for and hold public office. And once again, we emphasize
herein our previous rulings recognizing the Comelec's authority and jurisdiction to
hear and decide petitions for annulment of proclamations.
This Court has time and again liberally and equitably construed the electoral laws of
our country to give fullest effect to the manifest will of our people,66 for in case of
doubt, political laws must be
interpreted to give life and spirit to the popular mandate freely expressed through
the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the
way of the sovereign will. Consistently, we have held:
"x x x (L)aws governing election contests must be liberally construed to the end that
the will of the people in the choice of public officials may not be defeated by mere
technical objections (citations omitted)."67
The law and the courts must accord Frivaldo every possible protection, defense and
refuge, in deference to the popular will. Indeed, this Court has repeatedly stressed
the importance of giving effect to the sovereign will in order to ensure the survival
of our democracy. In any action involving the possibility of a reversal of the popular

electoral choice, this Court must exert utmost effort to resolve the issues in a
manner that would give effect to the will of the majority, for it is merely sound
public policy to cause elective offices to be filled by those who are the choice of the
majority. To successfully challenge a winning candidate's qualifications, the
petitioner must clearly demonstrate that the ineligibility is so patently
antagonistic68 to constitutional and legal principles that overriding such ineligibility
and thereby giving effect to the apparent will of the people, would ultimately create
greater prejudice to the very democratic institutions and juristic traditions that our
Constitution and laws so zealously protect and promote. In this undertaking, Lee has
miserably failed.
In Frivaldo's case, it would have been technically easy to find fault with his cause.
The Court could have refused to grant retroactivity to the effects of his repatriation
and hold him still ineligible due to his failure to show his citizenship at the time he
registered as a voter before the 1995 elections. Or, it could have disputed the
factual findings of the Comelec that he was stateless at the time of repatriation and
thus hold his consequent dual citizenship as a disqualification "from running for any
elective local position." But the real essence of justice does not emanate from
quibblings over patchwork legal technicality. It proceeds from the spirit's gut
consciousness of the dynamic role of law as a brick in the ultimate development of
the social edifice. Thus, the Court struggled against and eschewed the easy,
legalistic, technical and sometimes harsh anachronisms of the law in order to evoke
substantial justice in the larger social context consistent with Frivaldo's unique
situation approximating venerability in Philippine political life. Concededly, he
sought American citizenship only to escape the clutches of the dictatorship. At this
stage, we cannot seriously entertain any doubt about his loyalty and dedication to
this country. At the first opportunity, he returned to this land, and sought to serve
his people once more. The people of Sorsogon overwhelmingly voted for him three
times. He took an oath of allegiance to this Republic every time he filed his
certificate of candidacy and during his failed naturalization bid. And let it not be
overlooked, his demonstrated tenacity and sheer determination to re-assume his
nationality of birth despite several legal set-backs speak more loudly, in spirit, in
fact and in truth than any legal technicality, of his consuming intention and burning
desire to re-embrace his native Philippines even now at the ripe old age of 81 years.
Such loyalty to and love of country as well as nobility of purpose cannot be lost on
this Court of justice and equity. Mortals of lesser mettle would have given up. After
all, Frivaldo was assured of a life of ease and plenty as a citizen of the most
powerful country in the world. But he opted, nay, single-mindedly insisted on
returning to and serving once more his struggling but beloved land of birth. He
therefore deserves every liberal interpretation of the law which can be applied in his
favor. And in the final analysis, over and above Frivaldo himself, the indomitable
people of Sorsogon most certainly deserve to be governed by a leader of their
overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of
the respondent Commission are AFFIRMED.

(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic.
In any event, it has no merit.
No costs.
SO ORDERED.
Davide, Jr., J. dissenting opinion
Puno., J. concurring opinion
Francisco, Hermosisima, Jr., and Torres, JJ., concur.
Padilla, Regalado, Romero, and Bellosillo, JJ., pro hac vice.
Melo, Vitug, and Kapunan, JJ., concur in the result.
Narvasa, C.J. and Mendoza, J., took no part.

Co v. HRET
G.R. Nos. 92191-92 July 30, 1991
ANTONIO Y. CO, petitioner,
vs.
ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND JOSE ONG, JR.,
respondents.
G.R. Nos. 92202-03 July 30, 1991
SIXTO T. BALANQUIT, JR., petitioner,
vs.
ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND JOSE ONG, JR.,
respondents.
Hechanova & Associates for petitioner Co.
Brillantes, Nachura, Navarro and Arcilla Law Offices for respondent Ong, Jr.

GUTIERREZ, JR., J.:p

The petitioners come to this Court asking for the setting aside and reversal of a
decision of the House of Representatives Electoral Tribunal (HRET).
The HRET declared that respondent Jose Ong, Jr. is a natural born Filipino citizen and
a resident of Laoang, Northern Samar for voting purposes. The sole issue before us
is whether or not, in making that determination, the HRET acted with grave abuse of
discretion.
On May 11, 1987, the congressional election for the second district of Northern
Samar was held.

Among the candidates who vied for the position of representative in the second
legislative district of Northern Samar are the petitioners, Sixto Balinquit and Antonio
Co and the private respondent, Jose Ong, Jr.
Respondent Ong was proclaimed the duly elected representative of the second
district of Northern Samar.
The petitioners filed election protests against the private respondent premised on
the following grounds:
1)

Jose Ong, Jr. is not a natural born citizen of the Philippines; and

2)

Jose Ong, Jr. is not a resident of the second district of Northern Samar.

The HRET in its decision dated November 6, 1989, found for the private respondent.
A motion for reconsideration was filed by the petitioners on November 12, 1989.
This was, however, denied by the HRET in its resolution dated February 22, 1989.
Hence, these petitions for certiorari.
We treat the comments as answers and decide the issues raised in the petitions.
ON THE ISSUE OF JURISDICTION
The first question which arises refers to our jurisdiction.
The Constitution explicitly provides that the House of Representatives Electoral
Tribunal (HRET) and the Senate Electoral Tribunal (SET) shall be the sole judges of
all contests relating to the election, returns, and qualifications of their respective
members. (See Article VI, Section 17, Constitution)
The authority conferred upon the Electoral Tribunal is full, clear and complete. The
use of the word sole emphasizes the exclusivity of the jurisdiction of these Tribunals.
The Supreme Court in the case of Lazatin v. HRET (168 SCRA 391 [1988]) stated
that under the 1987 Constitution, the jurisdiction of the Electoral Tribunal is original
and exclusive, viz:
The use of the word "sole" emphasizes the exclusive character of the jurisdiction
conferred (Angara v. Electoral Commission, supra at p. 162). The exercise of power
by the Electoral Commission under the 1935 Constitution has been described as
"intended to be as complete and unimpaired as if it had originally remained in the
legislature." (id., at p. 175) Earlier this grant of power to the legislature was
characterized by Justice Malcolm as "full, clear and complete; (Veloso v. Board of
Canvassers of Leyte and Samar, 39 Phil. 886 [1919]) Under the amended 1935
Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it
remained as full, clear and complete as that previously granted the Legislature and
the Electoral Commission, (Lachica v. Yap, 25 SCRA 140 [1968]) The same may be

said with regard to the jurisdiction of the Electoral Tribunal under the 1987
Constitution. (p. 401)
The Court continued further, ". . . so long as the Constitution grants the HRET the
power to be the sole judge of all contests relating to election, returns and
qualifications of members of the House of Representatives, any final action taken by
the HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by this
Court . . . the power granted to the Electoral Tribunal is full, clear and complete and
excludes the exercise of any authority on the part of this Court that would in any
wise restrict it or curtail it or even affect the same." (pp. 403-404)
When may the Court inquire into acts of the Electoral Tribunals under our
constitutional grants of power?
In the later case of Robles v. HRET (181 SCRA 780 [1990]) the Supreme Court stated
that the judgments of the Tribunal are beyond judicial interference save only "in the
exercise of this Court's so-called extraordinary jurisdiction, . . . upon a determination
that the Tribunal's decision or resolution was rendered without or in excess of its
jurisdiction, or with grave abuse of discretion or paraphrasing Morrero, upon a clear
showing of such arbitrary and improvident use by the Tribunal of its power as
constitutes a denial of due process of law, or upon a demonstration of a very clear
unmitigated ERROR, manifestly constituting such GRAVE ABUSE OF DISCRETION
that there has to be a remedy for such abuse." (at pp. 785-786)
In the leading case of Morrero v. Bocar (66 Phil. 429 [1938]) the Court ruled that the
power of the Electoral Commission "is beyond judicial interference except, in any
event, upon a clear showing of such arbitrary and improvident use of power as will
constitute a denial of due process." The Court does not venture into the perilous
area of trying to correct perceived errors of independent branches of the
Government, It comes in only when it has to vindicate a denial of due process or
correct an abuse of discretion so grave or glaring that no less than the Constitution
calls for remedial action.
The Supreme Court under the 1987 Constitution, has been given an expanded
jurisdiction, so to speak, to review the decisions of the other branches and agencies
of the government to determine whether or not they have acted within the bounds
of the Constitution. (See Article VIII, Section 1, Constitution)
Yet, in the exercise thereof, the Court is to merely check whether or not the
governmental branch or agency has gone beyond the Constitutional limits of its
jurisdiction, not that it erred or has a different view. In the absence of a showing
that the HRET has committed grave abuse of discretion amounting to lack of
jurisdiction, there is no occasion for the Court to exercise its corrective power; it will
not decide a matter which by its nature is for the HRET alone to decide. (See Marcos
v. Manglapus, 177 SCRA 668 [1989]) It has no power to look into what it thinks is
apparent error.
As constitutional creations invested with necessary power, the Electoral Tribunals,
although not powers in the tripartite scheme of the government, are, in the exercise
of their functions independent organs independent of Congress and the Supreme

Court. The power granted to HRET by the Constitution is intended to be as complete

and unimpaired as if it had remained originally in the legislature. (Angara v.
Electoral Commission, 63 Phil. 139 [1936])
In passing upon petitions, the Court with its traditional and careful regard for the
balance of powers, must permit this exclusive privilege of the Tribunals to remain
where the Sovereign authority has place it. (See Veloso v. Boards of Canvassers of
Leyte and Samar, 39 Phil. 886 [1919])
It has been argued that under Article VI, Section 17 of the present Constitution, the
situation may exist as it exists today where there is an unhealthy one-sided political
composition of the two Electoral Tribunals. There is nothing in the Constitution,
however, that makes the HRET because of its composition any less independent
from the Court or its constitutional functions any less exclusive. The degree of
judicial intervention should not be made to depend on how many legislative
members of the HRET belong to this party or that party. The test remains the samemanifest grave abuse of discretion.
In the case at bar, the Court finds no improvident use of power, no denial of due
process on the part of the HRET which will necessitate the exercise of the power of
judicial review by the Supreme Court.
ON THE ISSUE OF CITIZENSHIP
The records show that in the year 1895, the private respondent's grandfather, Ong
Te, arrived in the Philippines from China. Ong Te established his residence in the
municipality of Laoang, Samar on land which he bought from the fruits of hard work.
As a resident of Laoang, Ong Te was able to obtain a certificate of residence from
the then Spanish colonial administration.
The father of the private respondent, Jose Ong Chuan was born in China in 1905. He
was brought by Ong Te to Samar in the year 1915.
Jose Ong Chuan spent his childhood in the province of Samar. In Laoang, he was
able to establish an enduring relationship with his neighbors, resulting in his easy
assimilation into the community.
As Jose Ong Chuan grew older in the rural and seaside community of Laoang, he
absorbed Filipino cultural values and practices. He was baptized into Christianity. As
the years passed, Jose Ong Chuan met a natural born-Filipino, Agripina Lao. The two
fell in love and, thereafter, got married in 1932 according to Catholic faith and
practice.
The couple bore eight children, one of whom is the private respondent who was
born in 1948.
The private respondent's father never emigrated from this country. He decided to
put up a hardware store and shared and survived the vicissitudes of life in Samar.

The business prospered. Expansion became inevitable. As a result, a branch was

set-up in Binondo, Manila. In the meantime, the father of the private respondent,
unsure of his legal status and in an unequivocal affirmation of where he cast his life
and family, filed with the Court of First Instance of Samar an application for
naturalization on February 15, 1954.
On April 28, 1955, the CFI of Samar, after trial, declared Jose Ong Chuan a Filipino
citizen.
On May 15, 1957, the Court of First Instance of Samar issued an order declaring the
decision of April 28, 1955 as final and executory and that Jose Ong Chuan may
already take his Oath of Allegiance.
Pursuant to said order, Jose Ong Chuan took his Oath of Allegiance; correspondingly,
a certificate of naturalization was issued to him.
At the time Jose Ong Chuan took his oath, the private respondent then a minor of
nine years was finishing his elementary education in the province of Samar. There is
nothing in the records to differentiate him from other Filipinos insofar as the
customs and practices of the local populace were concerned.
Fortunes changed. The house of the family of the private respondent in Laoang,
Samar was burned to the ground.
Undaunted by the catastrophe, the private respondent's family constructed another
one in place of their ruined house. Again, there is no showing other than that
Laoang was their abode and home.
After completing his elementary education, the private respondent, in search for
better education, went to Manila in order to acquire his secondary and college
education.
In the meantime, another misfortune was suffered by the family in 1975 when a fire
gutted their second house in Laoang, Samar. The respondent's family constructed
still another house, this time a 16-door apartment building, two doors of which were
reserved for the family.
The private respondent graduated from college, and thereafter took and passed the
CPA Board Examinations.
Since employment opportunities were better in Manila, the respondent looked for
work here. He found a job in the Central Bank of the Philippines as an examiner.
Later, however, he worked in the hardware business of his family in Manila. In 1971,
his elder brother, Emil, was elected as a delegate to the 1971 Constitutional
Convention. His status as a natural born citizen was challenged. Parenthetically, the
Convention which in drafting the Constitution removed the unequal treatment given
to derived citizenship on the basis of the mother's citizenship formally and solemnly
declared Emil Ong, respondent's full brother, as a natural born Filipino. The
Constitutional Convention had to be aware of the meaning of natural born
citizenship since it was precisely amending the article on this subject.

The private respondent frequently went home to Laoang, Samar, where he grew up
and spent his childhood days.
In 1984, the private respondent married a Filipina named Desiree Lim.
For the elections of 1984 and 1986, Jose Ong, Jr. registered himself as a voter of
Laoang, Samar, and correspondingly, voted there during those elections.
The private respondent after being engaged for several years in the management of
their family business decided to be of greater service to his province and ran for
public office. Hence, when the opportunity came in 1987, he ran in the elections for
representative in the second district of Northern Samar.
Mr. Ong was overwhelmingly voted by the people of Northern Samar as their
representative in Congress. Even if the total votes of the two petitioners are
combined, Ong would still lead the two by more than 7,000 votes.
The pertinent portions of the Constitution found in Article IV read:
SECTION 1, the following are citizens of the Philippines:
1.
Those who are citizens of the Philippines at the time of the adoption of the
Constitution;
2.

Those whose fathers or mothers are citizens of the Philippines;

3.
Those born before January 17, 1973, of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and
4.

Those who are naturalized in accordance with law.

SECTION 2, Natural-born Citizens are those who are citizens of the Philippines from
birth without having to perform any act to acquire or perfect their citizenship. Those
who elect Philippine citizenship in accordance with paragraph 3 hereof shall be
deemed natural-born citizens.
The Court interprets Section 1, Paragraph 3 above as applying not only to those who
elect Philippine citizenship after February 2, 1987 but also to those who, having
been born of Filipino mothers, elected citizenship before that date.
The provision in Paragraph 3 was intended to correct an unfair position which
discriminates against Filipino women. There is no ambiguity in the deliberations of
the Constitutional Commission, viz:
Mr. Azcuna: With respect to the provision of section 4, would this refer only to those
who elect Philippine citizenship after the effectivity of the 1973 Constitution or
would it also cover those who elected it under the 1973 Constitution?

Fr. Bernas: It would apply to anybody who elected Philippine citizenship by virtue
of the provision of the 1935 Constitution whether the election was done before or
after January 17, 1973. (Records of the Constitutional Commission, Vol. 1, p. 228;
Emphasis supplied)
xxx

xxx

xxx

Mr. Trenas: The Committee on Citizenship, Bill of Rights, Political Rights and
Obligations and Human Rights has more or less decided to extend the interpretation
of who is a natural-born citizen as provided in section 4 of the 1973 Constitution by
adding that persons who have elected Philippine Citizenship under the 1935
Constitution shall be natural-born? Am I right Mr. Presiding Officer?
Fr. Bernas:

yes.

xxx

xxx

xxx

Mr. Nolledo: And I remember very well that in the Reverend Father Bernas' well
written book, he said that the decision was designed merely to accommodate
former delegate Ernesto Ang and that the definition on natural-born has no
retroactive effect. Now it seems that the Reverend Father Bernas is going against
this intention by supporting the amendment?
Fr. Bernas: As the Commissioner can see, there has been an evolution in my
thinking. (Records of the Constitutional Commission, Vol. 1, p. 189)
xxx

xxx

xxx

Mr. Rodrigo: But this provision becomes very important because his election of
Philippine citizenship makes him not only a Filipino citizen but a natural-born Filipino
citizen entitling him to run for Congress. . .
Fr. Bernas: Correct. We are quite aware of that and for that reason we will leave it
to the body to approve that provision of section 4.
Mr. Rodrigo: I think there is a good basis for the provision because it strikes me as
unfair that the Filipino citizen who was born a day before January 17, 1973 cannot
be a Filipino citizen or a natural-born citizen. (Records of the Constitutional
Commission, Vol. 1, p. 231)
xxx

xxx

xxx

Mr. Rodrigo: The purpose of that provision is to remedy an inequitable situation.

Between 1935 and 1973 when we were under the 1935 Constitution, those born of
Filipino fathers but alien mothers were natural-born Filipinos. However, those born of
Filipino mothers but alien fathers would have to elect Philippine citizenship upon
reaching the age of majority; and if they do elect, they become Filipino citizens but
not natural-born Filipino citizens. (Records of the Constitutional Commission, Vol. 1,
p. 356)

The foregoing significantly reveals the intent of the framers. To make the provision
prospective from February 3, 1987 is to give a narrow interpretation resulting in an
inequitable situation. It must also be retroactive.
It should be noted that in construing the law, the Courts are not always to be
hedged in by the literal meaning of its language. The spirit and intendment thereof,
must prevail over the letter, especially where adherence to the latter would result in
absurdity and injustice. (Casela v. Court of Appeals, 35 SCRA 279 [1970])
A Constitutional provision should be construed so as to give it effective operation
and suppress the mischief at which it is aimed, hence, it is the spirit of the provision
which should prevail over the letter thereof. (Jarrolt v. Mabberly, 103 U.S. 580)
In the words of the Court in the case of J.M. Tuason v. LTA (31 SCRA 413 [1970]:
To that primordial intent, all else is subordinated. Our Constitution, any constitution
is not to be construed narrowly or pedantically for the prescriptions therein
contained, to paraphrase Justice Holmes, are not mathematical formulas having
their essence in their form but are organic living institutions, the significance of
which is vital not formal. . . . (p. 427)
The provision in question was enacted to correct the anomalous situation where one
born of a Filipino father and an alien mother was automatically granted the status of
a natural-born citizen while one born of a Filipino mother and an alien father would
still have to elect Philippine citizenship. If one so elected, he was not, under earlier
laws, conferred the status of a natural-born.
Under the 1973 Constitution, those born of Filipino fathers and those born of Filipino
mothers with an alien father were placed on equal footing. They were both
considered as natural-born citizens.
Hence, the bestowment of the status of "natural-born" cannot be made to depend
on the fleeting accident of time or result in two kinds of citizens made up of
essentially the same similarly situated members.
It is for this reason that the amendments were enacted, that is, in order to remedy
this accidental anomaly, and, therefore, treat equally all those born before the 1973
Constitution and who elected Philippine citizenship either before or after the
effectivity of that Constitution.
The Constitutional provision in question is, therefore curative in nature. The
enactment was meant to correct the inequitable and absurd situation which then
prevailed, and thus, render those acts valid which would have been nil at the time
had it not been for the curative provisions. (See Development Bank of the
Philippines v. Court of Appeals, 96 SCRA 342 [1980])
There is no dispute that the respondent's mother was a natural born Filipina at the
time of her marriage. Crucial to this case is the issue of whether or not the
respondent elected or chose to be a Filipino citizen.

Election becomes material because Section 2 of Article IV of the Constitution

accords natural born status to children born of Filipino mothers before January 17,
1973, if they elect citizenship upon reaching the age of majority.
To expect the respondent to have formally or in writing elected citizenship when he
came of age is to ask for the unnatural and unnecessary. The reason is obvious. He
was already a citizen. Not only was his mother a natural born citizen but his father
had been naturalized when the respondent was only nine (9) years old. He could not
have divined when he came of age that in 1973 and 1987 the Constitution would be
amended to require him to have filed a sworn statement in 1969 electing citizenship
inspite of his already having been a citizen since 1957. In 1969, election through a
sworn statement would have been an unusual and unnecessary procedure for one
who had been a citizen since he was nine years old.
We have jurisprudence that defines "election" as both a formal and an informal
process.
In the case of In Re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the
exercise of the right of suffrage and the participation in election exercises constitute
a positive act of election of Philippine citizenship. In the exact pronouncement of the
Court, we held:
Esteban's exercise of the right of suffrage when he came of age, constitutes a
positive act of election of Philippine citizenship (p. 52; emphasis supplied)
The private respondent did more than merely exercise his right of suffrage. He has
established his life here in the Philippines.
For those in the peculiar situation of the respondent who cannot be expected to
have elected citizenship as they were already citizens, we apply the In Re Mallare
rule.
The respondent was born in an outlying rural town of Samar where there are no
alien enclaves and no racial distinctions. The respondent has lived the life of a
Filipino since birth. His father applied for naturalization when the child was still a
small boy. He is a Roman Catholic. He has worked for a sensitive government
agency. His profession requires citizenship for taking the examinations and getting a
license. He has participated in political exercises as a Filipino and has always
considered himself a Filipino citizen. There is nothing in the records to show that he
does not embrace Philippine customs and values, nothing to indicate any tinge of
alien-ness no acts to show that this country is not his natural homeland. The mass
of voters of Northern Samar are frilly aware of Mr. Ong's parentage. They should
know him better than any member of this Court will ever know him. They voted by
overwhelming numbers to have him represent them in Congress. Because of his
acts since childhood, they have considered him as a Filipino.
The filing of sworn statement or formal declaration is a requirement for those who
still have to elect citizenship. For those already Filipinos when the time to elect
came up, there are acts of deliberate choice which cannot be less binding. Entering
a profession open only to Filipinos, serving in public office where citizenship is a

qualification, voting during election time, running for public office, and other
categorical acts of similar nature are themselves formal manifestations of choice for
these persons.
An election of Philippine citizenship presupposes that the person electing is an alien.
Or his status is doubtful because he is a national of two countries. There is no doubt
in this case about Mr. Ong's being a Filipino when he turned twenty-one (21).
We repeat that any election of Philippine citizenship on the part of the private
respondent would not only have been superfluous but it would also have resulted in
an absurdity. How can a Filipino citizen elect Philippine citizenship?
The respondent HRET has an interesting view as to how Mr. Ong elected citizenship.
It observed that "when protestee was only nine years of age, his father, Jose Ong
Chuan became a naturalized Filipino. Section 15 of the Revised Naturalization Act
squarely applies its benefit to him for he was then a minor residing in this country.
Concededly, it was the law itself that had already elected Philippine citizenship for
protestee by declaring him as such." (Emphasis supplied)
The petitioners argue that the respondent's father was not, validly, a naturalized
citizen because of his premature taking of the oath of citizenship.
The Court cannot go into the collateral procedure of stripping Mr. Ong's father of his
citizenship after his death and at this very late date just so we can go after the son.
The petitioners question the citizenship of the father through a collateral approach.
This can not be done. In our jurisdiction, an attack on a person's citizenship may
only be done through a direct action for its nullity. (See Queto v. Catolico, 31 SCRA
52 [1970])
To ask the Court to declare the grant of Philippine citizenship to Jose Ong Chuan as
null and void would run against the principle of due process. Jose Ong Chuan has
already been laid to rest. How can he be given a fair opportunity to defend himself.
A dead man cannot speak. To quote the words of the HRET "Ong Chuan's lips have
long been muted to perpetuity by his demise and obviously he could not use
beyond where his mortal remains now lie to defend himself were this matter to be
made a central issue in this case."
The issue before us is not the nullification of the grant of citizenship to Jose Ong
Chuan. Our function is to determine whether or not the HRET committed abuse of
authority in the exercise of its powers. Moreover, the respondent traces his natural
born citizenship through his mother, not through the citizenship of his father. The
citizenship of the father is relevant only to determine whether or not the respondent
"chose" to be a Filipino when he came of age. At that time and up to the present,
both mother and father were Filipinos. Respondent Ong could not have elected any
other citizenship unless he first formally renounced Philippine citizenship in favor of
a foreign nationality. Unlike other persons faced with a problem of election, there
was no foreign nationality of his father which he could possibly have chosen.

There is another reason why we cannot declare the HRET as having committed
manifest grave abuse of discretion. The same issue of natural-born citizenship has
already been decided by the Constitutional Convention of 1971 and by the Batasang
Pambansa convened by authority of the Constitution drafted by that Convention.
Emil Ong, full blood brother of the respondent, was declared and accepted as a
natural born citizen by both bodies.
Assuming that our opinion is different from that of the Constitutional Convention,
the Batasang Pambansa, and the respondent HRET, such a difference could only be
characterized as error. There would be no basis to call the HRET decision so
arbitrary and whimsical as to amount to grave abuse of discretion.
What was the basis for the Constitutional Convention's declaring Emil Ong a natural
born citizen?
Under the Philippine Bill of 1902, inhabitants of the Philippines who were Spanish
subjects on the 11th day of April 1899 and then residing in said islands and their
children born subsequent thereto were conferred the status of a Filipino citizen.
Was the grandfather of the private respondent a Spanish subject?
Article 17 of the Civil Code of Spain enumerates those who were considered Spanish
Subjects, viz:
ARTICLE 17. The following are Spaniards:
1.

Persons born in Spanish territory.

2.
Children born of a Spanish father or mother, even though they were born out
of Spain.
3.

Foreigners who may have obtained naturalization papers.

4.
Those without such papers, who may have acquired domicile in any town in
the Monarchy. (Emphasis supplied)
The domicile of a natural person is the place of his habitual residence. This domicile,
once established is considered to continue and will not be deemed lost until a new
one is established. (Article 50, NCC; Article 40, Civil Code of Spain; Zuellig v.
Republic, 83 Phil. 768 [1949])
As earlier stated, Ong Te became a permanent resident of Laoang, Samar around
1895. Correspondingly, a certificate of residence was then issued to him by virtue of
his being a resident of Laoang, Samar. (Report of the Committee on Election
Protests and Credentials of the 1971 Constitutional Convention, September 7, 1972,
p. 3)
The domicile that Ong Te established in 1895 continued until April 11, 1899; it even
went beyond the turn of the 19th century. It is also in this place were Ong Te set-up
his business and acquired his real property.

As concluded by the Constitutional Convention, Ong Te falls within the meaning of

sub-paragraph 4 of Article 17 of the Civil Code of Spain.
Although Ong Te made brief visits to China, he, nevertheless, always returned to the
Philippines. The fact that he died in China, during one of his visits in said country,
was of no moment. This will not change the fact that he already had his domicile
fixed in the Philippines and pursuant to the Civil Code of Spain, he had become a
Spanish subject.
If Ong Te became a Spanish subject by virtue of having established his domicile in a
town under the Monarchy of Spain, necessarily, Ong Te was also an inhabitant of the
Philippines for an inhabitant has been defined as one who has actual fixed residence
in a place; one who has a domicile in a place. (Bouvier's Law Dictionary, Vol. II) A
priori, there can be no other logical conclusion but to educe that Ong Te qualified as
a Filipino citizen under the provisions of section 4 of the Philippine Bill of 1902.
The HRET itself found this fact of absolute verity in concluding that the private
respondent was a natural-born Filipino.
The petitioners' sole ground in disputing this fact is that document presented to
prove it were not in compliance with the best the evidence rule. The petitioners
allege that the private respondent failed to present the original of the documentary
evidence, testimonial evidence and of the transcript of the proceedings of the body
which the aforesaid resolution of the 1971 Constitutional Convention was
predicated.
On the contrary, the documents presented by the private respondent fall under the
exceptions to the best evidence rule.
It was established in the proceedings before the HRET that the originals of the
Committee Report No. 12, the minutes of the plenary session of 1971 Constitutional
Convention held on November 28, 1972 cannot be found.
This was affirmed by Atty. Ricafrente, Assistant Secretary of the 1971 Constitutional
Convention; by Atty. Nolledo, Delegate to the 1971 Constitutional Convention; and
by Atty. Antonio Santos, Chief Librarian of the U.P Law Center, in their respective
testimonies given before the HRET to the effect that there is no governmental
agency which is the official custodian of the records of the 1971 Constitutional
Convention. (TSN, December 12, 1988, pp. 30-31; TSN, January 17, 1989, pp. 34-35;
TSN, February 1, 1989, p. 44; TSN, February 6, 1989, pp. 28-29)
The execution of the originals was established by Atty. Ricafrente, who as the
Assistant Secretary of the 1971 Constitutional Convention was the proper party to
testify to such execution. (TSN, December 12, 1989, pp. 11-24)
The inability to produce the originals before the HRET was also testified to as
aforestated by Atty. Ricafrente, Atty. Nolledo, and Atty. Santos. In proving the
inability to produce, the law does not require the degree of proof to be of sufficient

certainty; it is enough that it be shown that after a bona fide diligent search, the
same cannot be found. (see Government of P.I. v. Martinez, 44 Phil. 817 [1918])
Since the execution of the document and the inability to produce were adequately
established, the contents of the questioned documents can be proven by a copy
thereof or by the recollection of witnesses.
Moreover, to erase all doubts as to the authenticity of the documentary evidence
cited in the Committee Report, the former member of the 1971 Constitutional
Convention, Atty. Nolledo, when he was presented as a witness in the hearing of the
protest against the private respondent, categorically stated that he saw the
disputed documents presented during the hearing of the election protest against
the brother of the private respondent. (TSN, February 1, 1989, pp. 8-9)
In his concurring opinion, Mr. Justice Sarmiento, a vice-president of the
Constitutional Convention, states that he was presiding officer of the plenary
session which deliberated on the report on the election protest against Delegate
Emil Ong. He cites a long list of names of delegates present. Among them are Mr.
Chief Justice Fernan, and Mr. Justice Davide, Jr. The petitioners could have presented
any one of the long list of delegates to refute Mr. Ong's having been declared a
natural-born citizen. They did not do so. Nor did they demur to the contents of the
documents presented by the private respondent. They merely relied on the
procedural objections respecting the admissibility of the evidence presented.
The Constitutional Convention was the sole judge of the qualifications of Emil Ong
to be a member of that body. The HRET by explicit mandate of the Constitution, is
the sole judge of the qualifications of Jose Ong, Jr. to be a member of Congress. Both
bodies deliberated at length on the controversies over which they were sole judges.
Decisions were arrived at only after a full presentation of all relevant factors which
the parties wished to present. Even assuming that we disagree with their
conclusions, we cannot declare their acts as committed with grave abuse of
discretion. We have to keep clear the line between error and grave abuse.
ON THE ISSUE OF RESIDENCE
The petitioners question the residence qualification of respondent Ong.
The petitioners lose sight of the meaning of "residence" under the Constitution. The
term "residence" has been understood as synonymous with domicile not only under
the previous Constitutions but also under the 1987 Constitution.
The deliberations of the Constitutional Commission reveal that the meaning of
residence vis-a-vis the qualifications of a candidate for Congress continues to
remain the same as that of domicile, to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional
Convention, there was an attempt to require residence in the place not less than
one year immediately preceding the day of the elections. So my question is: What is
the Committee's concept of residence of a candidate for the legislature? Is it actual
residence or is it the concept of domicile or constructive residence?

Mr. Davide: Madame President, in so far as the regular members of the National
Assembly are concerned, the proposed section merely provides, among others, and
a resident thereof, that is, in the district, for a period of not less than one year
preceding the day of the election. This was in effect lifted from the 1973
Constitution, the interpretation given to it was domicile. (Records of the 1987
Constitutional Convention, Vol. 11, July 22, 1986. p. 87)
xxx

xxx

xxx

Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner
Nolledo has raised the same point that "resident" has been interpreted at times as a
matter of intention rather than actual residence.
Mr. De los Reyes:

Domicile.

Ms. Rosario Braid: Yes, So, would the gentlemen consider at the proper time to go
back to actual residence rather than mere intention to reside?
Mr. De los Reyes: But we might encounter some difficulty especially considering
that a provision in the Constitution in the Article on Suffrage says that Filipinos living
abroad may vote as enacted by law. So, we have to stick to the original concept that
it should be by domicile and not physical and actual residence. (Records of the 1987
Constitutional Commission, Vol. 11, July 22, 1986, p. 110)
The framers of the Constitution adhered to the earlier definition given to the word
"residence" which regarded it as having the same meaning as domicile.
The term "domicile" denotes a fixed permanent residence to which when absent for
business or pleasure, one intends to return. (Ong Huan Tin v. Republic, 19 SCRA 966
[1967]) The absence of a person from said permanent residence, no matter how
long, notwithstanding, it continues to be the domicile of that person. In other words,
domicile is characterized by animus revertendi (Ujano v. Republic, 17 SCRA 147
[1966])
The domicile of origin of the private respondent, which was the domicile of his
parents, is fixed at Laoang, Samar. Contrary to the petitioners' imputation, Jose Ong,
Jr. never abandoned said domicile; it remained fixed therein even up to the present.
The private respondent, in the proceedings before the HRET sufficiently established
that after the fire that gutted their house in 1961, another one was constructed.
Likewise, after the second fire which again destroyed their house in 1975, a sixteendoor apartment was built by their family, two doors of which were reserved as their
family residence. (TSN, Jose Ong, Jr., November 18,1988, p. 8)
The petitioners' allegation that since the private respondent owns no property in
Laoang, Samar, he cannot, therefore, be a resident of said place is misplaced.

The properties owned by the Ong Family are in the name of the private respondent's
parents. Upon the demise of his parents, necessarily, the private respondent,
pursuant to the laws of succession, became the co-owner thereof (as a co- heir),
notwithstanding the fact that these were still in the names of his parents.
Even assuming that the private respondent does not own any property in Samar,
the Supreme Court in the case of De los Reyes v. Solidum (61 Phil. 893 [1935]) held
that it is not required that a person should have a house in order to establish his
residence and domicile. It is enough that he should live in the municipality or in a
rented house or in that of a friend or relative. (Emphasis supplied)
To require the private respondent to own property in order to be eligible to run for
Congress would be tantamount to a property qualification. The Constitution only
requires that the candidate meet the age, citizenship, voting and residence
requirements. Nowhere is it required by the Constitution that the candidate should
also own property in order to be qualified to run. (see Maquera v. Borra, 122 Phil.
412 [1965])
It has also been settled that absence from residence to pursue studies or practice a
profession or registration as a voter other than in the place where one is elected,
does not constitute loss of residence. (Faypon v. Quirino, 96 Phil. 294 [1954])
As previously stated, the private respondent stayed in Manila for the purpose of
finishing his studies and later to practice his profession, There was no intention to
abandon the residence in Laoang, Samar. On the contrary, the periodical journeys
made to his home province reveal that he always had the animus revertendi.
The Philippines is made up not only of a single race; it has, rather, undergone an
interracial evolution. Throughout our history, there has been a continuing influx of
Malays, Chinese, Americans, Japanese, Spaniards and other nationalities. This racial
diversity gives strength to our country.
Many great Filipinos have not been whole-blooded nationals, if there is such a
person, for there is none. To mention a few, the great Jose Rizal was part Chinese,
the late Chief Justice Claudio Teehankee was part Chinese, and of course our own
President, Corazon Aquino is also part Chinese. Verily, some Filipinos of whom we
are proud were ethnically more Chinese than the private respondent.
Our citizens no doubt constitute the country's greatest wealth. Citizenship is a
special privilege which one must forever cherish.
However, in order to truly revere this treasure of citizenship, we do not, on the basis
of too harsh an interpretation, have to unreasonably deny it to those who qualify to
share in its richness.
Under the overly strict jurisprudence surrounding our antiquated naturalization laws
only the very affluent backed by influential patrons, who were willing to suffer the
indignities of a lengthy, sometimes humiliating, and often corrupt process of
clearances by minor bureaucrats and whose lawyers knew how to overcome so
many technical traps of the judicial process were able to acquire citizenship. It is

time for the naturalization law to be revised to enable a more positive, affirmative,
and meaningful examination of an applicant's suitability to be a Filipino. A more
humane, more indubitable and less technical approach to citizenship problems is
essential.
WHEREFORE, the petitions are hereby DISMISSED. The questioned decision of the
House of Representatives Electoral Tribunal is AFFIRMED. Respondent Jose Ong, Jr. is
declared a natural-born citizen of the Philippines and a resident of Laoang, Northern
Samar.
SO ORDERED.
Bidin, Grio-Aquino, Medialdea and Davide, Jr., JJ., concur.
Fernan, C.J., Melencio-Herrera, Cruz, Feliciano and Gancayco, JJ., took no part.

Separate Opinions

PADILLA, J., dissenting:

I dissent.
These separate petitions for certiorari and mandamus seek to annul the decision *
of respondent House of Representatives Electoral Tribunal (hereinafter referred to as
the tribunal) dated 6 November 1989 which declared private respondent Jose L.
Ong, a natural-born citizen of the Philippines and a legal resident of Laoang,
Northern Samar, and the resolution of the tribunal dated 22 February 1990 denying
petitioners' motions for reconsideration.
In G.R. Nos. 92191-92, petitioner Co also prays that the Court declare private
respondent Ong not qualified to be a Member of the House of Representatives and
to declare him (petitioner Co) who allegedly obtained the highest number of votes
among the qualified candidates, the duly elected representative of the second
legislative district of Northern Samar. In G.R. Nos. 92202-03, petitioner Balanquit
prays that the Court declare private respondent Ong and Co (petitioner in G.R. Nos.
92191-92) not qualified for membership in the House of Representatives and to
proclaim him (Balanguit) as the duly elected representative of said district.
Petitioners Antonio Y. Co, Sixto T. Balanquit, Jr. and private respondent Jose Ong
Chuan, Jr. were among the candidates for the position of Representative or
Congressman for the second district of Northern Samar during the 11 May 1987
congressional elections. Private respondent was proclaimed duly-elected on 18 May
1987 with a plurality of some sixteen thousand (16,000) votes over petitioner Co
who obtained the next highest number of votes.

Petitioners Co and Balanquit then filed separate election protests against private
respondent with the tribunal, docketed as HRET Cases Nos. 13 and 15 respectively.
Both protests raised almost the same issues and were thus considered and decided
jointly by the tribunal.
The issues raised before the tribunal were the following:
1.
Whether or not protestee (meaning, Ong) is a natural-born citizen of the
Philippines in contemplation of Section 6, Article VI of the 1987 Constitution in
relation to Sections 2 and 1(3), Article IV thereof; and
2.
Whether or not protestee was a resident of Laoang, Northern Samar, in
contemplation of Section 6, Article VI of the same Constitution, for a period of not
less than one year immediately preceding the congressional elections of May 1987.
The respondent tribunal in its decision dated 6 November 1989 held that
respondent Jose L. Ong is a natural-born citizen of the Philippines and was a legal
resident of Laoang, Northern Samar for the required period prior to the May 1987
congressional elections. He was, therefore, declared qualified to continue in office
as Member of the House of Representatives, Congress of the Philippines,
representing the second legislative district of Northern Samar.
The factual antecedents taken from the consolidated proceedings in the tribunal are
the following:
1.
The Protestee (Ong) was born on June 19, 1948 to the legal spouses Ong
Chuan also known as Jose Ong Chuan and Agrifina E. Lao. His place of birth is
Laoang which is now one of the municipalities comprising the province of Northern
Samar (Republic Act No. 6132 approved on August 24, 1970 and the Ordinance
appended to the 1987 Constitution).
2.
On the other hand, Jose Ong Chuan was born in China and arrived in Manila
on December 16, 1915. (Exhibit zz) Subsequently thereafter, he took up residence
in Laoang, Samar.
3.
On February 4, 1932, he married Agrifina E. Lao. Their wedding was
celebrated according to the rites and practices of the Roman Catholic Church in the
Municipality of Laoang (Exh. E).
4.
At the time of her marriage to Jose Ong Chuan, Agrifina E. Lao was a naturalborn Filipino citizen, both her parents at the time of her birth being Filipino citizens.
(Exhibits E & I)
5.
On February 15, 1954, Jose Ong Chuan, desiring to acquire Philippine
citizenship, filed his petition for naturalization with the Court of First Instance of
Samar, pursuant to Commonwealth Act No. 473, otherwise known as the Revised
Naturalization Law.

6.
On April 28, 1955, the Court of First Instance of Samar rendered a decision
approving the application of Jose Ong Chuan for naturalization and declaring said
petitioner a Filipino citizen "with all the rights and privileges and duties, liabilities
and obligations inherent to Filipino citizens. (Exh. E)
7.

On May 15, 1957, the same Court issued an order:

(1)

declaring the decision of this Court of April 28, 1955 final and executory;

(2)
directing the clerk of court to issue the corresponding Certificate of
Naturalization in favor of the applicant Ong Chuan who prefers to take his oath and
register his name as Jose Ong Chuan. Petitioner may take his oath as Filipino citizen
under Ms new christian name, Jose Ong Chuan. (Exh. F)
8.
On the same day, Jose Ong Chuan having taken the corresponding oath of
allegiance to the Constitution and the Government of the Philippines as prescribed
by Section 12 of Commonwealth Act No. 473, was issued the corresponding
Certificate of Naturalization. (Exh. G)
9.
On November 10, 1970, Emil L. Ong, a full-brother of the protestee and a son
born on July 25, 1937 at Laoang, Samar to the spouses Jose Ong Chuan and Agrifina
E. Lao, was elected delegate from Northern Samar to the 1971 Constitutional
Convention.
10.
By protestee's own -testimony, it was established that he had attended grade
school in Laoang. Thereafter, he went to Manila where he finished his secondary as
well as his college education. While later employed in Manila, protestee however
went home to Laoang whenever he had the opportunity to do so, which invariably
would be as frequent as twice to four times a year.
11.
Protestee also showed that being a native and legal resident of Laoang, he
registered as a voter therein and correspondingly voted in said municipality in the
1984 and 1986 elections.
12.
Again in December 1986, during the general registration of all voters in the
country, Protestee re-registered as a voter in Precinct No. 4 of Barangay
Tumaguinting in Laoang. In his voter's affidavit, Protestee indicated that he is a
resident of Laoang since birth. (Exh. 7) 1
Petitioners' motions for reconsideration of the tribunal's decision having been
denied, petitioners filed the present petitions.
In their comments, the respondents first raise the issue of the Court's jurisdiction to
review the decision of the House Electoral Tribunal, considering the constitutional
provision vesting upon said tribunal the power and authority to act as the sole judge
of all contests relating to the qualifications of the Members of the House of
Representatives. 2
On the question of this Court's jurisdiction over the present controversy, I believe
that, contrary to the respondents' contentions, the Court has the jurisdiction and

competence to review the questioned decision of the tribunal and to decide the
present controversy.
Article VIII, Section I of the 1987 Constitution provides that:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government.
The Constitution, it is true, constitutes the tribunal as the sole judge of all contests
relating to the election, returns, and qualifications of Members of the House of
Representatives. But as early as 1938, it was held in Morrero vs. Bocar, 3 construing
Section 4, Article VI of the 1935 Constitution which provided that ". . . The Electoral
Commission shall be the sole judge of all contests relating to the election, returns
and qualifications of the Members of the National Assembly," that:
The judgment rendered by the (electoral) commission in the exercise of such an
acknowledged power is beyond judicial interference, except, in any event, "upon a
clear showing of such arbitrary and improvident use of the power as will constitute a
denial of due process of law." (Barry vs. US ex rel. Cunningham, 279 US 597; 73
Law. ed., 867; Angara vs. Electoral Commission, 35 Off. Gaz., 23.)
And then under the afore-quoted provisions of Article VIII, Section 1 of the 1987
Constitution, this Court is duty-bound to determine whether or not, in an actual
controversy, there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the Government.
The present controversy, it will be observed, involves more than perceived
irregularities in the conduct of a congressional election or a disputed appreciation of
ballots, in which cases, it may be contended with great legal force and persuasion
that the decision of the electoral tribunal should be final and conclusive, for it is, by
constitutional directive, made the sole judge of contests relating to such matters.
The present controversy, however, involves no less than a determination of whether
the qualifications for membership in the House of Representatives, as prescribed by
the Constitution, have been met. Indeed, this Court would be unforgivably remiss in
the performance of its duties, as mandated by the Constitution, were it to allow a
person, not a natural-born Filipino citizen, to continue to sit as a Member of the
House of Representatives, solely because the House Electoral Tribunal has declared
him to be so. In such a case, the tribunal would have acted with grave abuse of
discretion amounting to lack or excess of jurisdiction as to require the exercise by
this Court of its power of judicial review.
Besides, the citizenship and residence qualifications of private respondent for the
office of Member of the House of Representatives, are here controverted by
petitioners who, at the same time, claim that they are entitled to the office illegally
held by private respondent. From this additional direction, where one asserts an
earnestly perceived right that in turn is vigorously resisted by another, there is
clearly a justiciable controversy proper for this Court to consider and decide.

Nor can it be said that the Court, in reviewing the decision of the tribunal, asserts
supremacy over it in contravention of the time-honored principle of constitutional
separation of powers. The Court in this instance simply performs a function
entrusted and assigned to it by the Constitution of interpreting, in a justiciable
controversy, the pertinent provisions of the Constitution with finality.
It is the role of the Judiciary to refine and, when necessary, correct constitutional
(and/or statutory) interpretation, in the context of the interactions of the three
branches of the government, almost always in situations where some agency of the
State has engaged in action that stems ultimately from some legitimate area of
governmental power (the Supreme Court in Modern Role, C.B. Sevisher, 1958, p.
36). 4
Moreover, it is decidedly a matter of great public interest and concern to determine
whether or not private respondent is qualified to hold so important and high a public
office which is specifically reserved by the Constitution only to natural-born Filipino
citizens.
After a careful consideration of the issues and the evidence, it is my considered
opinion that the respondent tribunal committed grave abuse of discretion
amounting to lack or excess of jurisdiction in rendering its questioned decision and
resolution, for reasons to be presently stated.
The Constitution 5 requires that a Member of the House of Representatives must be
a natural-born citizen of the Philippines and, on the day of the election, is at least
twenty-five (25) years of age, able to read and write, and, except the party-list
representatives, a registered voter in the district in which he shall be elected, and a
resident thereof for a period of not less than one (1) year immediately preceding the
day of the election.
Article IV, Section 2 of the 1987 Constitution defines natural-born (Filipino) citizens
as:
Natural-born citizens are those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine citizenship. Those
who elect Philippine citizenship in accordance with paragraph (3), Section I hereof
shall be deemed natural-born citizen,
Article IV, Section 1, paragraph (3) of the 1987 Constitution provides that:
Section 1.

The following are citizens of the Philippines:

xxx

xxx

xxx

(3)
Those born before January 17, 1973, of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority.
The Court in this case is faced with the duty of interpreting the above-quoted
constitutional provisions. The first sentence of Section 2 of Article IV states the basic

definition of a natural-born Filipino citizen. Does private respondent fall within said
definition?
To the respondent tribunal,
Protestee may even be declared a natural-born citizen of the Philippines under the
first sentence of Sec. 2 of Article IV of the 1987 Constitution because he did not
have "to perform any act to acquire or perfect his Philippine citizenship." It bears to
repeat that on 15 May 1957, while still a minor of 9 years he already became a
Filipino citizen by declaration of law. Since his mother was a natural-born citizen at
the time of her marriage, protestee had an inchoate right to Philippine citizenship at
the moment of his birth and, consequently the declaration by virtue of Sec. 15 of CA
473 that he was a Filipino citizen retroacted to the moment of his birth without his
having to perform any act to acquire or perfect such Philippine citizenship. 6
I regret that I am neither convinced nor persuaded by such kaleidoscopic
ratiocination. The records show that private respondent was born on 19 June 1948
to the spouses Jose Ong Chuan, a Chinese citizen, and Agrifina E. Lao, a naturalborn Filipino citizen, in Laoang, Northern Samar. In other words, at birth, private
respondent was a Chinese citizen (not a natural-born Filipino citizen) because his
father was then a Chinese citizen (not a naturalized Filipino citizen). Under the 1935
Constitution which was enforced at the time of private respondent's birth on 19 June
1948, only those whose fathers were citizens of the Philippines were considered
Filipino citizens. Those whose mothers were citizens of the Philippines had to elect
Philippine citizenship upon reaching the age of majority, in order to be considered
Filipino citizens. 7
Following the basic definition in the 1987 Constitution of a natural-born citizen, in
relation to the 1935 Constitution, private respondent is not a natural-born Filipino
citizen, having been born a Chinese citizen by virtue of the Chinese citizenship of
his father at the time of his birth, although from birth, private respondent had the
right to elect Philippine citizenship, the citizenship of his mother, but only upon his
reaching the age of majority.
While under Section 15 of the Revised Naturalization Law (C.A. 473) minor children
of a naturalized citizen (father), who were born in the Philippines prior to the
naturalization of the parent automatically become Filipino citizens, 8 this does not
alter the fact that private respondent was not born to a Filipino father, and the
operation of Section 15 of CA 473 did not confer upon him the status of a naturalborn citizen merely because he did not have to perform any act to acquire or
perfect his status as a Filipino citizen.
But even assuming arguendo that private respondent could be considered a naturalborn citizen by virtue of the operation of CA 473, petitioners however contend that
the naturalization of private respondent's father was invalid and void from the
beginning, and, therefore, private respondent is not even a Filipino citizen.
Respondent tribunal in its questioned decision ruled that only a direct proceeding
for nullity of naturalization as a Filipino citizen is permissible, and, therefore, a

collateral attack on Ong Chuan's naturalization is barred in an electoral contest

which does not even involve him (Ong Chuan).
Private respondent, for his part, avers in his Comment that the challenge against
Ong Chuan's naturalization must emanate from the Government and must be made
in a proper/appropriate and direct proceeding for de-naturalization directed against
the proper party, who in such case is Ong Chuan, and also during his lifetime.
A judgment in a naturalization proceeding is not, however, afforded the character of
impregnability under the principle of res judicata. 9 Section 18 of CA 473 provides
that a certificate of naturalization may be cancelled upon motion made in the
proper proceeding by the Solicitor General or his representative, or by the proper
provincial fiscal.
In Republic vs. Go Bon Lee, 10 this Court held that:
An alien friend is offered under certain conditions the privilege of citizenship. He
may accept the offer and become a citizen upon compliance with the prescribed
conditions, but not otherwise. His claim is of favor, not of right. He can only become
a citizen upon and after a strict compliance with the acts of Congress. An applicant
for this high privilege is bound, therefore, to conform to the terms upon which alone
the right he seeks can be conferred. It is his province, and he is bound, to see that
the jurisdictional facts upon which the grant is predicated actually exist and if they
do not he takes nothing by this paper grant.
xxx

xxx

xxx

Congress having limited this privilege to a specified class of persons, no other

person is entitled to such privilege, nor to a certificate purporting to grant it, and
any such certificate issued to a person not so entitled to receive it must be treated
as a mere nullity, which confers no legal rights as against the government, from
which it has been obtained without warrant of law.
"Naturalization is not a right, but a privilege of the most discriminating as well as
delicate and exacting nature, affecting public interest of the highest order, and
which may be enjoyed only under the precise conditions prescribed by law therefor."
11
Considering the legal implications of the allegation made by the petitioners that the
naturalization of private respondent's father Ong Chuan, is a nullity, the Court
should make a ruling on the validity of said naturalization proceedings. This course
of action becomes all the more inevitable and justified in the present case where, to
repeat for stress, it is claimed that a foreigner is holding a public
office. 12
It cannot be overlooked, in this connection, that the citizenship of private
respondent is derived from his father. If his father's Filipino citizenship is void from
the beginning, then there is nothing from which private respondent can derive his
own claimed Filipino citizenship. For a spring cannot rise higher than its source. And
to allow private respondent to avail of the privileges of Filipino citizenship by virtue

of a void naturalization of his father, would constitute or at least sanction a

continuing offense against the Constitution.
The records show that private respondent's father, Jose Ong Chuan, took the oath of
allegiance to the Constitution and the Philippine Government, as prescribed by
Section 12 of CA 473 on the same day (15 May 1957) that the CFI issued its order
directing the clerk of court to issue the corresponding Certificate of Naturalization
and for the applicant to take the oath of allegiance.
However, it is settled that an order granting a petition to take the requisite oath of
allegiance of one who has previously obtained a decision favorable to his
application for naturalization, is appealable. It is, therefore, improper and illegal to
authorize the taking of said oath upon the issuance of said order and before the
expiration of the reglementary period to perfect any appeal from said order. 13
In Cua Sun Ke vs. Republic, 14 this Court held that:
Administration of the oath of allegiance on the same day as issuance of order
granting citizenship is irregular and makes the proceedings so taken null and void.
(Republic vs. Guy, 115 SCRA 244 [1982]; citing the case of Ong So vs. Republic of
the Philippines, 121 Phil. 1381).
It would appear from the foregoing discussion that the naturalization of Jose Ong
Chuan (private respondent's father) was null and void. It follows that the private
respondent did not acquire any legal rights from the void naturalization of his father
and thus he cannot himself be considered a Filipino citizen, more so, a natural-born
Filipino citizen.
But assuming that the CFI order of 15 May 1957 directing the clerk of court to issue
the certificate of naturalization to Ong Chuan and for the latter to take the oath of
allegiance was final and not appealable, the resulting naturalization of Ong Chuan
effected, as previously stated, an automatic naturalization of private respondent,
then a minor, as a Filipino citizen on 15 May 1957, but not his acquisition or
perfection of the status of a natural-born Filipino citizen.
Let us now look into the question of whether or not private respondent acquired the
status of a natural-born Filipino citizen by reason of the undisputed fact that his
mother was a natural-born Filipino citizen. This in turn leads us to an examination of
the second sentence in Article IV, Section 2 of the 1987 Constitution. It expands, in
a manner of speaking, in relation to Section 1, paragraph (3) of the same Article IV,
the status of a natural-born Filipino citizen to those who elect Philippine citizenship
upon reaching the age of majority. The right or privilege of election is available,
however, only to those born to Filipino mothers under the 1935 Constitution, and
before the 1973 Constitution took effect on 17 January 1973.
The petitioners contend that the respondent tribunal acted in excess of its
jurisdiction or gravely abused its discretion as to exceed its jurisdiction in
"distorting" the conferment by the 1987 Constitution of the status of "natural-born"
Filipino citizen on those who elect Philippine citizenship all in its strained effort,

according to petitioners, to support private respondent's qualification to be a

Member of the House of Representatives. 15
Petitioners argue that the clear, unambiguous wording of section 1(3) of Article IV of
the 1987 Constitution contemplates that only the legitimate children of Filipino
mothers with alien father, born before 17 January 1973 and who would reach the
age of majority (and thus elect Philippine citizenship) after the effectivity of the
1987 Constitution are entitled to the status of natural-born Filipino citizen. 16
The respondent tribunal in resolving the issue of the constitutional provisions'
interpretation, found reason to refer to the interpellations made during the 1986
Constitutional Commission. It said:
That the benevolent provisions of Sections 2 and 1(3) of Article IV of the 1987
Constitution was (sic) intended by its (sic) framers to be endowed, without
distinction, to all Filipinos by election pursuant to the 1935 Constitution is more than
persuasively established by the extensive interpellations and debate on the issue as
borne by the official records of the 1986 Constitutional Commission. 17
Although I find the distinction as to when election of Philippine citizenship was made
irrelevant to the case at bar, since private respondent, contrary to the conclusion of
the respondent tribunal, did not elect Philippine citizenship, as provided by law, I
still consider it necessary to settle the controversy regarding the meaning of the
constitutional provisions in question.
I agree with respondent tribunal that the debates, interpellations petitions and
opinions expressed in the 1986 Constitutional Commission may be resorted to in
ascertaining the meaning of somewhat elusive and even nebulous constitutional
provisions. Thus
The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of
the people adopting it should be given effect. The primary task in constitutional
construction is to ascertain and thereafter assure the realization of the purpose of
the framers and of the people in the adoption of the Constitution. It may also be
safely assumed that the people in ratifying the constitution were guided mainly by
the explanation offered by the framers. 18
The deliberations of the 1986 Constitutional Commission relevant to Section 2,
Article IV in relation to Section 1(3) of the same Article, appear to negate the
contention of petitioners that only those born to Filipino mothers before 17 January
1973 and who would elect Philippine citizenship after the effectivity of the 1987
Constitution, are to be considered natural-born Filipino citizens.
During the free-wheeling discussions on citizenship, Commissioner Treas
specifically asked Commissioner Bernas regarding the provisions in question, thus:
MR. TRENAS:The Committee on Citizenship, Bill of Rights, Political Rights and
Obligations and Human Rights has more or less decided to extend the interpretation
of who is a natural-born Filipino citizen as provided in Section 4 of the 1973

Constitution, by adding that persons who have elected Philippine citizenship under
the 1935 Constitution shall be considered natural-born. Am I right, Mr. Presiding
Officer?
FR BERNAS: Yes.
MR. TRENAS:And does the Commissioner think that tills addition to Section 4 of the
1973 Constitution would be contrary to the spirit of that section?
FR BERNAS: Yes, we are quite aware that it is contrary to the letter really. But
whether it is contrary to the spirit is something that has been debated before and is
being debated even now. We will recall that during the 1971 Constitutional
Convention, the status of natural-born citizenship of one of the delegates, Mr. Ang,
was challenged precisely because he was a citizen by election. Finally, the 1971
Constitutional Convention considered him a natural-born citizen, one of the
requirements to be a Member of the 1971 Constitutional Convention. The reason
behind that decision was that a person under his circumstances already had the
inchoate right to be a citizen by the fact that the mother was a Filipino. And as a
matter of fact, the 1971 Constitutional Convention formalized that recognition by
adopting paragraph 2 of Section 1 of the 1971 Constitution. So, the entire purpose
of this proviso is simply to perhaps remedy whatever injustice there may be so that
these people born before January 17, 1973 who are not naturalized and people who
are not natural born but who are in the same situation as we are considered naturalborn citizens. So, the intention of the Committee in proposing this is to equalize
their status. 19
When asked to clarify the provision on natural-born citizens, Commissioner Bernas
replied to Commissioner Azcuna thus:
MR. AZCUNA:
With respect to the proviso in Section 4, would this refer only to
those who elect Philippine citizenship after the effectivity of the 1973 Constitution
or would it also cover those who elected it under the 1935 Constitution?
FR BERNAS: It would apply to anybody who elected Philippine citizenship by virtue
of the provision of the 1935 Constitution, whether the election was done before or
after 17 January 1973. 20
And during the period of amendments. Commissioner Rodrigo explained the
purpose of what now appear as Section 2 and Section 1, paragraph (3) of Article IV
of the 1987 Constitution, thus:
MR. RODRIGO:
The purpose of that proviso is to remedy an inequitable
situation. Between 1935 and 1973, when we were under the 1935 Constitution,
those born of Filipino fathers but alien mothers were natural-born Filipinos. However,
those born of Filipino mothers but alien fathers would have to elect Philippine
citizenship upon reaching the age of majority; and, if they do elect, they become
Filipino citizens, yet, but not natural-born Filipino citizens.
The 1973 Constitution equalized the status of those born of Filipino mothers and
those born of Filipino fathers. So that from January 17, 1973 when the 1973

Constitution took effect, those born of Filipino mothers but of alien fathers are
natural-born Filipino citizens. Also, those who are born of Filipino fathers and alien
mothers are natural-born Filipino citizens.
If the 1973 Constitution equalized the status of a child born of a Filipino mother and
that born of a Filipino father, why do we not give a chance to a child born before
January 17, 1973, if and when he elects Philippine citizenship, to be in the same
status as one born of a Filipino father namely, natural-born citizen.
Another thing I stated is equalizing the status of a father and a mother vis-a-vis the
child. I would like to state also that we showed equalize the status of a child born of
a Filipino mother the day before January 17, 1973 and a child born also of a Filipino
mother on January 17 or 24 hours later. A child born of a Filipino mother but an alien
father one day before January 17, 1973 is a Filipino citizen, if he elects Philippine
citizenship, but he is not a natural-born Filipino citizen. However, the other child who
luckily was born 24 hours later maybe because of parto laborioso is a naturalborn Filipino citizen. 21
It would appear then that the intent of the framers of the 1987 Constitution in
defining a natural-born Filipino citizen was to equalize the position of Filipino fathers
and Filipino mothers as to their children becoming natural-born Filipino citizens. In
other words, after 17 January 1973, effectivity date of the 1973 Constitution, all
those born of Filipino fathers (with alien spouse) or Filipino mothers (with alien
spouse) are natural-born Filipino citizens. But those born to Filipino mothers prior to
17 January 1973 must still elect Philippine citizenship upon their reaching the age of
majority, in order to be deemed natural-born Filipino citizens. The election, which is
related to the attainment of the age of majority, may be made before or after 17
January 1973. This interpretation appears to be in consonance with the fundamental
purpose of the Constitution which is to protect and enhance the people's individual
interests, 22 and to foster equality among them.
Since private respondent was born on 19 June 1948 (or before 17 January 1973) to a
Filipino mother (with an alien spouse) and should have elected Philippine citizenship
on 19 June 1969 (when he attained the age of majority), or soon thereafter, in order
to have the status of a natural-born Filipino citizen under the 1987 Constitution, the
vital question is: did private respondent really elect Philippine citizenship? As earlier
stated, I believe that private respondent did not elect Philippine citizenship, contrary
to the ruling of the respondent tribunal.
The respondent tribunal, on this issue, ruled as follows:
Where a person born to a Filipino mother and an alien father had exercised the right
of suffrage when he came of age, the same constitutes a positive act of election of
Philippine citizenship. (Florencio vs. Mallare) [sic] The acts of the petitioner in
registering as a voter, participating in elections and campaigning for certain
candidates were held by the Supreme Court as sufficient to show his preference for
Philippine citizenship. Accordingly, even without complying with the formal
requisites for election, the petitioner's Filipino citizenship was judicially upheld. 23

I find the above ruling of the respondent tribunal to be patently erroneous and
clearly untenable, as to amount to grave abuse of discretion. For it is settled
doctrine in this jurisdiction that election of Philippine citizenship must be made in
accordance with Commonwealth Act 625. Sections 1 and 2 24 of the Act mandate
that the option to elect Philippine citizenship must be effected expressly not
impliedly.
The respondent tribunal cites In re: Florencio Mallare 25 which held that Esteban
Mallare's exercise of the right of suffrage when he came of age, constituted a
positive act of election of Philippine citizenship.
Mallare, cited by respondent tribunal as authority for the doctrine of implied election
of Philippine citizenship, is not applicable to the case at bar. The respondent tribunal
failed to consider that Esteban Mallare reached the age of majority in 1924, or
seventeen (17) years before CA 625 was approved and, more importantly, eleven
(11) years before the 1935 Constitution (which granted the right of election) took
effect.
To quote Mr. Justice Fernandez in Mallare:
Indeed, it would be unfair to expect the presentation of a formal deed to that effect
considering that prior to the enactment of Commonwealth Act 625 on June 7, 1941,
no particular proceeding was required to exercise the option to elect Philippine
citizenship, granted to the proper party by Section 1, subsection 4, Article IV of the
1935 Philippine Constitution. 26
Moreover, Esteban Mallare was held to be a Filipino citizen because he was an
illegitimate (natural) child of a Filipino mother and thus followed her citizenship. I
therefore agree with the petitioners' submission that, in citing the Mallare case, the
respondent tribunal had engaged in an obiter dictum.
The respondent tribunal also erred in ruling that by operation of CA 473, the Revised
Naturalization Law, providing for private respondent's acquisition of Filipino
citizenship by reason of the naturalization of his father, the law itself had already
elected Philippine citizenship for him. For, assuming arguendo that the
naturalization of private respondent's father was valid, and that there was no
further need for private respondent to elect Philippine citizenship (as he had
automatically become a Filipino citizen) yet, this did not mean that the operation of
the Revised Naturalization Law amounted to an election by him of Philippine
citizenship as contemplated by the Constitution. Besides, election of Philippine
citizenship derived from one's Filipino mother, is made upon reaching the age of
majority, not during one's minority.
There is no doubt in my mind, therefore, that private respondent did not elect
Philippine citizenship upon reaching the age of majority in 1969 or within a
reasonable time thereafter as required by CA 625. Consequently, he cannot be
deemed a natural-born Filipino citizen under Sections 2 and 1(3), Article IV of the
1987 Constitution.

Based on all the foregoing considerations and premises, I am constrained to state

that private respondent is not a natural-born citizen of the Philippines in
contemplation of Section 6, Article VI of the 1987 Constitution in relation to Sections
2 and 1(3), Article IV thereof, and hence is disqualified or ineligible to be a Member
of the House of Representatives.
At this point, I find it no longer necessary to rule on the issue of required residence,
inasmuch as the Constitution requires that a Member of the House of
Representatives must be both a natural-born Filipino citizen and a resident for at
least one (1) year in the district in which he shall be elected.
The next question that comes up is whether or not either of the petitioners can
replace private respondent as the Representative of the second legislative district of
Northern Samar in the House of Representatives.
I agree with respondent tribunal that neither of the petitioners may take the place of
private respondent in the House of Representatives representing the second district
of Northern Samar. The ruling of this Court in Ramon L. Labo, Jr. vs. The Commission
on Elections (COMELEC) EN BANC and Luis L. Lardizabal, 27 is controlling. There we
held that Luis L. Lardizabal, who filed the quo warranto petition, could not replace
Ramon L. Labo, Jr. as mayor of Baguio City for the simple reason that as he obtained
only the second highest number of votes in the election, he was obviously not the
choice of the people of Baguio City for mayor of that City.
A petition alleging that the candidate-elect is not qualified for the office is, in effect,
a quo warranto proceeding even if it is labelled an election protest. 28 It is a
proceeding to unseat the ineligible person from office but not necessarily to install
the protestant in his place. 29
The general rule is that the fact that a plurality or a majority of the votes are cast
for an ineligible candidate in an election does not entitle the candidate receiving the
next highest number of votes to be declared elected. In such a case, the electors
have failed to make a choice and the election is a nullity. 30
Sound policy dictates that public elective offices are filled by those who have the
highest number of votes cast in the election for that office, and it is a fundamental
idea in all republican forms of government that no one can be declared elected and
no measure can be declared carried unless he or it receives a majority or plurality of
the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676).
As early as 1912, this Court has already declared that the candidate who lost in an
election cannot be proclaimed the winner in the event that the candidate who won
is found ineligible for the office to which he was elected. This was the ruling in
Topacio v. Paredes (23 Phil. 238)
Again, the effect of a decision that a candidate is not entitled to the office because
of fraud or irregularities in the election is quite different from that produced by
declaring a person ineligible to hold such an office. . . . If it be found that the
successful candidate (according to the board of canvassers) obtained a plurality in
an illegal manner, and that another candidate was the real victor, the former must

retire in favor of the latter. In the other case, there is not, strictly speaking, a
contest, as the wreath of victory cannot be transferred from an ineligible to any
other candidate when the sole question is the eligibility of the one receiving a
plurality of the legally cast ballots. . . . 31
The recognition of Emil L. Ong by the 1971 Constitutional Convention as a naturalborn Filipino citizen, in relation to the present case.
Private respondent, as previously stated, is a full brother of Emil L. Ong, both of
them having the same father and mother.
Private respondent, relying on a resolution of the 1971 Constitutional Convention 32
to the effect that Emil L. Ong was a natural-born Filipino citizen, alleged before the
House Electoral Tribunal that, by analogy, he is himself a natural-born Filipino
citizen. This submission, while initially impressive, is, as will now be shown, flawed
and not supported by the evidence. Not even the majority decision of the electoral
tribunal adopted the same as the basis of its decision in favor of private respondent.
The tribunal, in reference to this submission, said:
Be that as it may and in the light of the Tribunal's disposition of protestee's
citizenship based on an entirely different set of circumstances, apart from the
indisputable fact that the matters attempted to be brought in issue in connection
therewith are too far removed in point of time and relevance from the decisive
events relied upon by the Tribunal, we view these two issues as being already
inconsequential. 33
The electoral tribunal (majority) instead chose to predicate its decision on the
alleged citizenship by naturalization of private respondent's father (Ong Chuan) and
on the alleged election of Philippine citizenship by private respondent.
Emil L. Ong, was elected delegate to the 1971 Constitutional Convention. Electoral
protests, numbers EP-07 and EP-08, were filed by Leonardo D. Galing and Gualberto
D. Luto against Emil L. Ong, contesting his citizenship qualification. The Committee
on Election Protests Credentials of the 1971 Contitution Convention heard the
protests and submitted to the Convention a report dated 4 September 1972, the
dispositive portion of which stated:
It appearing that protestee's grandfather was himself a Filipino citizen under the
provisions of the Philippine Bill of 1902 and the Treaty of Paris of December 10,
1898, thus conferring upon protestee's own father, Ong Chuan, Philippine
citizenship at birth, the conclusion is inescapable that protestee himself is a naturalborn citizen, and is therefore qualified to hold the office of delegate to the
Constitutional Convention. 34
On 28 November 1972, during a plenary session of the 1971 Constitutional
Convention, the election protests filed against Emil L. Ong were dismissed, following
the report of the Committee on Election Protests and Credentials. 35

It is evident, up to this point, that the action of the 1971 Constitutional Convention
in the case of Emil L. Ong is, to say the least, inconclusive to the case at bar,
because
a)
the 1971 Constitutional Convention decision in the Emil L. Ong case involved
the 1935 Constitution; the present case, on the other hand involves the 1987
Constitution:
b)
the 1935 Constitution contained no specific definition of a "natural-born
citizen" of the Philippines; the 1987 Constitution contains a precise and specific
definition of a "natural-born citizen" of the Philippines in Sec. 2, Art. IV thereof and
private respondent does not qualify under such definition in the 1987 Constitution;
c)
the decision of the 1971 Constitutional Convention in the case of Emil L. Ong
was a decision of a political body, not a court of law. And, even if we have to take
such a decision as a decision of a quasi-judicial body (i.e., a political body exercising
quasi-judicial functions), said decision in the Emil L. Ong case can not have the
category or character of res judicata in the present judicial controversy, because
between the two (2) cases, there is no identity of parties (one involves Emil L. Ong,
while the other involves private respondent) and, more importantly, there is no
identity of causes of action because the first involves the 1935 Constitution while
the second involves the 1987 Constitution.
But even laying aside the foregoing reasons based on procedural rules and logic,
the evidence submitted before the electoral tribunal and, therefore, also before this
Court, does not support the allegations made by Emil L. Ong before the 1971
Constitutional Convention and inferentially adopted by private respondent in the
present controversy. This leads us to an interesting inquiry and finding.
The 1971 Constitutional Convention in holding that Emil L. Ong was a "natural-born
citizen" of the Philippines under the 1935 Constitution laid stress on the "fact"
and this appears crucial and central to its decision that Emil L. Ong's grandfather,
Ong Te became a Filipino citizen under the Philippine Bill of 1902 and, therefore, his
descendants like Emil L. Ong (and therefore, also private respondent) became
natural-born Filipinos. The 1971 Constitutional Convention said:
Ong Te Emil Ong's grandfather, was a Spanish subject residing in the Philippines on
April 11, 1899 and was therefore one of the many who became ipso facto citizens of
the Philippines under the provisions of the Philippine Bill of 1902. Said law expressly
declared that all inhabitants of the Philippine Islands who continued to reside
therein and who were Spanish subjects on April 11, 1899 as well as their children
born subsequent thereto, "shall be deemed and held to be citizens of the Philippine
Islands." (Section 4, Philippine Bill of
1902). 36
The "test" then, following the premises of the 1971 Constitutional Convention, is
whether or not Ong Te private respondent's and Emil L. Ong's grandfather was "an
inhabitant of the Philippines who continued to reside therein and was a Spanish
subject on April 11, 1899." If he met these requirements of the Philippine Bill of
1902, then, Ong Te was a Filipino citizen; otherwise, he was not a Filipino citizen.

Petitioners (protestants) submitted and offered in evidence before the House

Electoral Tribunal exhibits W, X, Y, Z ,AA, BB, CC, DD and EE which are copies of
entries in the "Registro de Chinos" from years 1896 to 1897 which show that Ong Te
was not listed as an inhabitant of Samar where he is claimed to have been a
resident. Petitioners (protestants) also submitted and offered in evidence before the
House Electoral Tribunal exhibit V, a certification of the Chief of the Archives
Division, Records and Management and Archives Office, stating that the name of
Ong Te does not appear in the "Registro Central de Chinos" for the province of
Samar for 1895. These exhibits prove or at least, as petitioners validly argue, tend
to prove that Ong Te was NOT a resident of Samar close to 11 April 1899 and,
therefore, could not continue residing in Samar, Philippines after 11 April 1899,
contrary to private respondent's pretense. In the face of these proofs or evidence,
private respondent FAILED TO PRESENT ANY REBUTTAL OR COUNTERVAILING
EVIDENCE, except the decision of the 1971 Constitutional Convention in the case of
Emil L. Ong, previously discussed.
It is not surprising then that, as previously noted, the majority decision of the House
Electoral Tribunal skirted any reliance on the alleged ipso facto Filipino citizenship of
Ong Te under the Philippine Bill of 1902. It is equally not surprising that Ong Chuan,
the son of Ong Te and father or private respondent, did not even attempt to claim
Filipino citizenship by reason of Ong Te's alleged Filipino citizenship under the
Philippine Bill of 1902 but instead applied for Philippine citizenship through
naturalization.
Nor can it be contended by the private respondent that the House Electoral Tribunal
should no longer have reviewed the factual question or issue of Ong Te's citizenship
in the light of the resolution of the 1971 Constitutional Convention finding him (Ong
Te to have become a Filipino citizen under the Philippine Bill of 1902. The tribunal
had to look into the question because the finding that Ong Te had become a Filipino
citizen under the Philippine Bill of 1902 was the central core of said 1971 resolution
but as held in Lee vs. Commissioners of
Immigration: 37
. . . Everytime the citizenship of a person is material or indispensable in a judicial or
administrative case, whatever the corresponding Court or administrative authority
decides therein as to such citizenship is generally not considered as res adjudicata,
hence it has to be threshed out again and again as the occasion may demand.
Which finally brings us to the resolution of this Court in Emil L. Ong vs. COMELEC, et
al., G.R. No. 67201, 8 May 1984. In connection with said resolution, it is contended
by private respondent that the resolution of the 1971 Constitutional Convention in
the Emil L. Ong case was elevated to this Court on a question involving Emil L.
Ong's disqualification to run for membership in the Batasang Pambansa and that,
according to private respondent, this Court allowed the use of the Committee
Report to the 1971 Constitutional Convention.
To fully appreciate the implications of such contention, it would help to look into the
circumstances of the case brought before this Court in relation to the Court's action
or disposition. Emil L. Ong and Edilberto Del Valle were both candidates for the

Batasang Pambansa in the 14 May 1984 election. Valle filed a petition for
disqualification with the Commission on Election on 29 March 1984 docketed as SPC
No. 84-69 contending that Ong is not a natural-born citizen. Ong filed a motion to
dismiss the petition on the ground that the judgment of the 1971 Constitutional
Convention on his status as a natural-born citizen of the Philippines bars the
petitioner from raising the Identical issue before the COMELEC. (G.R. No. 67201,
Rollo, p. 94) The motion was denied by the COMELEC, thus, prompting Emil L. Ong
to file with this Court a petition for certiorari, prohibition and mandamus with
preliminary injunction against the COMELEC, docketed as G.R. No. 67201.
In a resolution dated 8 May 1984, this Court resolved to issue a writ of preliminary
injunction enjoining respondent COMELEC from holding any further hearing on the
disqualification case entitled "Edilberto Del Valle vs. Emil Ong (SPC No. 84-69)
except to dismiss the same. (G.R. Nos. 92202-03, Rollo, p. 335)
This Court, in explaining its action, held that:
Acting on the prayer of the petitioner for the issuance of a Writ of Preliminary
Injunction, and considering that at the hearing this morning, it was brought out that
the 1971 Constitutional Convention, at its session of November 28, 1972, after
considering the Report of its Committee on Election Protests and Credentials, found
that the protest questioning the citizenship of the protestee (the petitioner herein)
was groundless and dismissed Election Protests Nos. EP 07 and EP 08 filed against
said petitioner (p. 237, Rollo), the authenticity of the Minutes of said session as well
as of the said Committee's Report having been duly admitted in evidence without
objection and bears out, for now, without need for a full hearing, that petitioner is a
natural-born citizen, the Court Resolved to ISSUE, effective immediately, a Writ of
Preliminary Injunction enjoining respondent COMELEC from holding any further
hearing on the disqualification case entitled Edilberto Del Valle vs. Emil Ong (SPC
No. 84-69) scheduled at 3:00 o'clock this afternoon, or any other day, except to
dismiss the same. This is without prejudice to any appropriate action that private
respondent may wish to take after the elections. (emphasis supplied)
It is thus clear that the resolution of this Court in G.R. No. 67201 was rendered
without the benefit of a hearing on the merits either by the Court or by the
COMELEC and merely on the basis of a Committee's Report to the 1971
Constitutional Convention, and that this Court (and this is quite significant) did not
foreclose any appropriate action that Del Valle (therein petitioner) may wish to take
after the elections.
It is thus abundantly clear also that to this Court, the resolution of the 1971
Constitutional Convention recognizing Emil L. Ong as a natural-born citizen under
the 1935 Constitution did not foreclose a future or further proceeding in regard to
the same question and that, consequently, there is no vested right of Emil L. Ong to
such recognition. How much more when the Constitution involved is not the 1935
Constitution but the 1987 Constitution whose provisions were never considered in
all such proceedings because the 1987 Constitution was still inexistent.
A final word. It is regrettable that one (as private respondent) who unquestionably
obtained the highest number of votes for the elective position of Representative

(Congressman) to the House of Representatives for the second district of Northern

Samar, would have had to cease in office by virtue of this Court's decision, if the full
membership of the Court had participated in this case, with the result that the
legislative district would cease to have, in the interim, a representative in the House
of Representatives. But the fundamental consideration in cases of this nature is the
Constitution and only the Constitution. It has to be assumed, therefore, that when
the electorate in the second legislative district of Northern Samar cast the majority
of their votes for private respondent, they assumed and believed that he was fully
eligible and qualified for the office because he is a natural-born Filipino citizen. That
erroneous assumption and belief can not prevail over, but must yield to the majesty
of the Constitution.
This is a sad day for the Constitution. As I see it, the Constitution mandates that
members of the House of Representatives should be "natural-born citizens of the
Philippines". The voting majority of the present Court says, "Filipino citizens will do."
This is bad enough. What is worse is, the same voting majority, in effect, says,
"even aliens will do as well."
WHEREFORE, my vote is clear: to declare private respondent Jose L. Ong Chua, Jr.,
as he clearly is, NOT a natural-born citizen of the Philippines and therefore NOT
QUALIFIED to be a Member of the House of Representatives, Congress of the
Philippines.
Narvasa, J., Paras, J. and Regalado, J., dissenting.
SARMIENTO, J., concurring:
I concur with the majority.
(1)
I wish to point out first that the question of citizenship is a question of fact, and as a
rule, the Supreme Court leaves facts to the tribunal that determined them. I am
quite agreed that the Electoral Tribunal of the House of Representatives, as the
"sole judge" of all contests relating to the membership in the House, as follows:
Sec. 17.
The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests relating to the
election, returns, and qualifications of their respective Members. Each Electoral
Tribunal shall be composed of nine Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief Justice, and the remaining six shall be
Members of the Senate or the House of Representatives, as the case may be, who
shall be chosen on the basis of proportional representation from the political parties
and the parties or organizations registered under the party-list system represented
therein. The senior Justice in the Electoral Tribunal shall be its Chairman. 1
is the best judge of facts and this Court can not substitute its judgment because it
thinks it knows better.

In the case of Aratuc v. Commission on Elections, 2 it was held that this Court can
not review the errors of the Commission on Elections (then the "sole judge" of all
election contests) in the sense of reviewing facts and unearthing mistakes and
that this Court's jurisdiction is to see simply whether or not it is guilty of a grave
abuse of discretion. It is true that the new Constitution has conferred expanded
powers on the Court, 3 but as the Charter states, our authority is "to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government." 4 It is not to review facts.
"Grave abuse of discretion" has been defined as whimsical exercise of power
amounting to excess of jurisdiction, or otherwise, to denial of due process of law. 5
I find none of that here.
As the majority indicates, Jose Ong's citizenship is a matter of opinion with which
men may differ, but certainly, it is quite another thing to say that the respondent
Tribunal has gravely abused its discretion because the majority has begged to differ.
It does not form part of the duty of the Court to remedy all imagined wrongs
committed by the Government.
The respondent Tribunal has spoken. According to the Tribunal, Jose Ong is a Filipino
citizen and consequently, is possessed of the qualifications to be a member of the
House. As the sole judge, precisely, of this question, the Court can not be more
popish than the pope.
(2)
I can not say, in the second place, that the Decision in question stands exactly on
indefensible grounds. It is to be noted that Jose Ong had relied on the Report dated
September 4, 1972 of the 1971 Constitutional Convention Committee 6 on Election
Protests and Credentials, in which the Committees upheld the citizenship, and
sustained the qualification to sit as Delegate, of Emil Ong, Jose Ong's full blood
brother. According to the Report, Ong Te the Ongs' grandfather, was already a
Filipino citizen having complied with the requirements on Filipinization by existing
laws for which his successors need not have elected Filipino citizenship. I quote:
xxx

xxx

xxx

There is merit in protestee's claim. There can hardly be any doubt that Ong Te
protestees's grandfather, was a Spanish subject residing in the Philippines on April
11, 1899, and was therefore one of the many who became ipso facto citizens of the
Philippines under the provisions of the Philippine Bill of 1902. Said law expressly
declared that all inhabitants of the Philippine Islands who continued to reside
therein and who were Spanish subjects on April 11, 1899, as well as their children
born subsequent thereto, "shall be deemed and held to be citizens of the Philippine
Islands" (Sec. 4, Philippine Bill of 1902). Excepted from the operation of this rule
were Spanish subjects who shall have elected to preserve their allegiance to the
Crown of Spain in accordance with the Treaty of Paris of December 10, 1898. But

under the Treaty of Paris, only Spanish subjects who were natives of Peninsular
Spain had the privilege of preserving their Spanish nationality. 7
xxx

xxx

xxx

xxx

xxx

xxx

As earlier noted, protestee's grandfather established residence in the Philippines in

1895, as shown by the Registro Central de Chinos. He was also issued a certificate
of registration. He established a business here, and later acquired real property.
Although he went back to China for brief visits, he invariably came back. He even
brought his eldest son, Ong Chuan, to live in the Philippines when the latter was
only 10 years old. And Ong Chuan was admitted into the country because, as duly
noted on his landing certificate, his father, Ong Te had been duly enrolled under CR
16009-36755 i.e., as a permanent resident. Indeed, even when Ong Te went back
to China in the 1920's for another visit, he left his son, Ong Chuan, who was then
still a minor, in the Philippines obviously because he had long considered the
Philippines his home. The domicile he established in 1895 is presumed to have
continued up to, and beyond, April 11, 1899, for, as already adverted to, a domicile
once acquired is not lost until a new one is gained. The only conclusion then can
thus be drawn is that Ong Te was duly domiciled in the Philippines as of April 11,
1899, within the meaning of par. 4, Art. 17, of the Civil Code of 1889 and was,
consequently, a Spanish subject, he qualified as a Filipino citizen under the
provisions of Section 4 of the Philippine Bill of 1902. 8
It is true that Ong Chuan, the Ong brothers' father, subsequently sought
naturalization in the belief that he was, all along, a Chinese citizen, but as the
Report held:
Protestants, however, make capital of the fact that both Ong Te and his son, Ong
Chuan (protestee's father), appear to have been registered as Chinese citizens even
long after the turn of the century. Worse, Ong Chuan himself believed the was alien,
to the extent of having to seek admission as a Pilipino citizen through naturalization
proceedings. The point, to our mind, is neither crucial nor substantial. Ong's status
as a citizen is a matter of law, rather than of personal belief. It is what the law
provides, and not what one thinks his status to be, which determines whether one is
a citizen of a particular state or not. Mere mistake or misapprehension as to one's
citizenship, it has been held, is not a sufficient cause or reason for forfeiture of
Philippine citizenship; it does not even constitute estoppel (Palanca vs. Republic, 80
Phil. 578, 584). Too, estoppel applies only to questions of fact and not of law
(Tanada v. Cuenco, L-10520, Feb. 28, 1957). 9
It is to be noted that the Report was unanimously approved by the Committee, and
on November 28, 1972, approved without any objection by the Convention in
plenary session. 10
I am not, of course, to be mistaken as acting as mouthpiece of Emil Ong, but in all
candor, I speak from experience, because when the Convention approved the
Report in question, I was one of its vice-presidents and the presiding officer.

It is to be noted finally, that the matter was elevated to this Court (on a question
involving Emil Ong's qualification to sit as member of the defunct Batasang
Pambansa) 11 in which this Court allowed the use of the Committee Report.
Faced with such positive acts of the Government, I submit that the question of the
Ong's citizenship is a settled matter. Let it rest.
It is true that Electoral Protest Nos. EP-07 and EP-08 of the Convention as well as
G.R. No. 67201 of this Court, involved Emil Ong and not his brother; I submit,
however, that what is sauce for the goose is sauce for the gander.
I also submit that the fundamental question is whether or not we will overturn the
unanimous ruling of 267 delegates, indeed, also of this Court.

Separate Opinions
PADILLA, J., dissenting:
I dissent.
These separate petitions for certiorari and mandamus seek to annul the decision *
of respondent House of Representatives Electoral Tribunal (hereinafter referred to as
the tribunal) dated 6 November 1989 which declared private respondent Jose L.
Ong, a natural-born citizen of the Philippines and a legal resident of Laoang,
Northern Samar, and the resolution of the tribunal dated 22 February 1990 denying
petitioners' motions for reconsideration.
In G.R. Nos. 92191-92, petitioner Co also prays that the Court declare private
respondent Ong not qualified to be a Member of the House of Representatives and
to declare him (petitioner Co) who allegedly obtained the highest number of votes
among the qualified candidates, the duly elected representative of the second
legislative district of Northern Samar. In G.R. Nos. 92202-03, petitioner Balanquit
prays that the Court declare private respondent Ong and Co (petitioner in G.R. Nos.
92191-92) not qualified for membership in the House of Representatives and to
proclaim him (Balanguit) as the duly elected representative of said district.
Petitioners Antonio Y. Co, Sixto T. Balanquit, Jr. and private respondent Jose Ong
Chuan, Jr. were among the candidates for the position of Representative or
Congressman for the second district of Northern Samar during the 11 May 1987
congressional elections. Private respondent was proclaimed duly-elected on 18 May
1987 with a plurality of some sixteen thousand (16,000) votes over petitioner Co
who obtained the next highest number of votes.
Petitioners Co and Balanquit then filed separate election protests against private
respondent with the tribunal, docketed as HRET Cases Nos. 13 and 15 respectively.
Both protests raised almost the same issues and were thus considered and decided
jointly by the tribunal.

The issues raised before the tribunal were the following:

1.
Whether or not protestee (meaning, Ong) is a natural-born citizen of the
Philippines in contemplation of Section 6, Article VI of the 1987 Constitution in
relation to Sections 2 and 1(3), Article IV thereof; and
2.
Whether or not protestee was a resident of Laoang, Northern Samar, in
contemplation of Section 6, Article VI of the same Constitution, for a period of not
less than one year immediately preceding the congressional elections of May 1987.
The respondent tribunal in its decision dated 6 November 1989 held that
respondent Jose L. Ong is a natural-born citizen of the Philippines and was a legal
resident of Laoang, Northern Samar for the required period prior to the May 1987
congressional elections. He was, therefore, declared qualified to continue in office
as Member of the House of Representatives, Congress of the Philippines,
representing the second legislative district of Northern Samar.
The factual antecedents taken from the consolidated proceedings in the tribunal are
the following:
1.
The Protestee (Ong) was born on June 19, 1948 to the legal spouses Ong
Chuan also known as Jose Ong Chuan and Agrifina E. Lao. His place of birth is
Laoang which is now one of the municipalities comprising the province of Northern
Samar (Republic Act No. 6132 approved on August 24, 1970 and the Ordinance
appended to the 1987 Constitution).
2.
On the other hand, Jose Ong Chuan was born in China and arrived in Manila
on December 16, 1915. (Exhibit zz) Subsequently thereafter, he took up residence
in Laoang, Samar.
3.
On February 4, 1932, he married Agrifina E. Lao. Their wedding was
celebrated according to the rites and practices of the Roman Catholic Church in the
Municipality of Laoang (Exh. E).
4.
At the time of her marriage to Jose Ong Chuan, Agrifina E. Lao was a naturalborn Filipino citizen, both her parents at the time of her birth being Filipino citizens.
(Exhibits E & I)
5.
On February 15, 1954, Jose Ong Chuan, desiring to acquire Philippine
citizenship, filed his petition for naturalization with the Court of First Instance of
Samar, pursuant to Commonwealth Act No. 473, otherwise known as the Revised
Naturalization Law.
6.
On April 28, 1955, the Court of First Instance of Samar rendered a decision
approving the application of Jose Ong Chuan for naturalization and declaring said
petitioner a Filipino citizen "with all the rights and privileges and duties, liabilities
and obligations inherent to Filipino citizens. (Exh. E)
7.

On May 15, 1957, the same Court issued an order:

(1)

declaring the decision of this Court of April 28, 1955 final and executory;

(2)
directing the clerk of court to issue the corresponding Certificate of
Naturalization in favor of the applicant Ong Chuan who prefers to take his oath and
register his name as Jose Ong Chuan. Petitioner may take his oath as Filipino citizen
under Ms new christian name, Jose Ong Chuan. (Exh. F)
8.
On the same day, Jose Ong Chuan having taken the corresponding oath of
allegiance to the Constitution and the Government of the Philippines as prescribed
by Section 12 of Commonwealth Act No. 473, was issued the corresponding
Certificate of Naturalization. (Exh. G)
9.
On November 10, 1970, Emil L. Ong, a full-brother of the protestee and a son
born on July 25, 1937 at Laoang, Samar to the spouses Jose Ong Chuan and Agrifina
E. Lao, was elected delegate from Northern Samar to the 1971 Constitutional
Convention.
10.
By protestee's own -testimony, it was established that he had attended grade
school in Laoang. Thereafter, he went to Manila where he finished his secondary as
well as his college education. While later employed in Manila, protestee however
went home to Laoang whenever he had the opportunity to do so, which invariably
would be as frequent as twice to four times a year.
11.
Protestee also showed that being a native and legal resident of Laoang, he
registered as a voter therein and correspondingly voted in said municipality in the
1984 and 1986 elections.
12.
Again in December 1986, during the general registration of all voters in the
country, Protestee re-registered as a voter in Precinct No. 4 of Barangay
Tumaguinting in Laoang. In his voter's affidavit, Protestee indicated that he is a
resident of Laoang since birth. (Exh. 7) 1
Petitioners' motions for reconsideration of the tribunal's decision having been
denied, petitioners filed the present petitions.
In their comments, the respondents first raise the issue of the Court's jurisdiction to
review the decision of the House Electoral Tribunal, considering the constitutional
provision vesting upon said tribunal the power and authority to act as the sole judge
of all contests relating to the qualifications of the Members of the House of
Representatives. 2
On the question of this Court's jurisdiction over the present controversy, I believe
that, contrary to the respondents' contentions, the Court has the jurisdiction and
competence to review the questioned decision of the tribunal and to decide the
present controversy.
Article VIII, Section I of the 1987 Constitution provides that:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine

whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government.
The Constitution, it is true, constitutes the tribunal as the sole judge of all contests
relating to the election, returns, and qualifications of Members of the House of
Representatives. But as early as 1938, it was held in Morrero vs. Bocar, 3 construing
Section 4, Article VI of the 1935 Constitution which provided that ". . . The Electoral
Commission shall be the sole judge of all contests relating to the election, returns
and qualifications of the Members of the National Assembly," that:
The judgment rendered by the (electoral) commission in the exercise of such an
acknowledged power is beyond judicial interference, except, in any event, "upon a
clear showing of such arbitrary and improvident use of the power as will constitute a
denial of due process of law." (Barry vs. US ex rel. Cunningham, 279 US 597; 73
Law. ed., 867; Angara vs. Electoral Commission, 35 Off. Gaz., 23.)
And then under the afore-quoted provisions of Article VIII, Section 1 of the 1987
Constitution, this Court is duty-bound to determine whether or not, in an actual
controversy, there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the Government.
The present controversy, it will be observed, involves more than perceived
irregularities in the conduct of a congressional election or a disputed appreciation of
ballots, in which cases, it may be contended with great legal force and persuasion
that the decision of the electoral tribunal should be final and conclusive, for it is, by
constitutional directive, made the sole judge of contests relating to such matters.
The present controversy, however, involves no less than a determination of whether
the qualifications for membership in the House of Representatives, as prescribed by
the Constitution, have been met. Indeed, this Court would be unforgivably remiss in
the performance of its duties, as mandated by the Constitution, were it to allow a
person, not a natural-born Filipino citizen, to continue to sit as a Member of the
House of Representatives, solely because the House Electoral Tribunal has declared
him to be so. In such a case, the tribunal would have acted with grave abuse of
discretion amounting to lack or excess of jurisdiction as to require the exercise by
this Court of its power of judicial review.
Besides, the citizenship and residence qualifications of private respondent for the
office of Member of the House of Representatives, are here controverted by
petitioners who, at the same time, claim that they are entitled to the office illegally
held by private respondent. From this additional direction, where one asserts an
earnestly perceived right that in turn is vigorously resisted by another, there is
clearly a justiciable controversy proper for this Court to consider and decide.
Nor can it be said that the Court, in reviewing the decision of the tribunal, asserts
supremacy over it in contravention of the time-honored principle of constitutional
separation of powers. The Court in this instance simply performs a function
entrusted and assigned to it by the Constitution of interpreting, in a justiciable
controversy, the pertinent provisions of the Constitution with finality.

It is the role of the Judiciary to refine and, when necessary, correct constitutional
(and/or statutory) interpretation, in the context of the interactions of the three
branches of the government, almost always in situations where some agency of the
State has engaged in action that stems ultimately from some legitimate area of
governmental power (the Supreme Court in Modern Role, C.B. Sevisher, 1958, p.
36). 4
Moreover, it is decidedly a matter of great public interest and concern to determine
whether or not private respondent is qualified to hold so important and high a public
office which is specifically reserved by the Constitution only to natural-born Filipino
citizens.
After a careful consideration of the issues and the evidence, it is my considered
opinion that the respondent tribunal committed grave abuse of discretion
amounting to lack or excess of jurisdiction in rendering its questioned decision and
resolution, for reasons to be presently stated.
The Constitution 5 requires that a Member of the House of Representatives must be
a natural-born citizen of the Philippines and, on the day of the election, is at least
twenty-five (25) years of age, able to read and write, and, except the party-list
representatives, a registered voter in the district in which he shall be elected, and a
resident thereof for a period of not less than one (1) year immediately preceding the
day of the election.
Article IV, Section 2 of the 1987 Constitution defines natural-born (Filipino) citizens
as:
Natural-born citizens are those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine citizenship. Those
who elect Philippine citizenship in accordance with paragraph (3), Section I hereof
shall be deemed natural-born citizen,
Article IV, Section 1, paragraph (3) of the 1987 Constitution provides that:
Section 1.

The following are citizens of the Philippines:

xxx

xxx

xxx

(3)
Those born before January 17, 1973, of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority.
The Court in this case is faced with the duty of interpreting the above-quoted
constitutional provisions. The first sentence of Section 2 of Article IV states the basic
definition of a natural-born Filipino citizen. Does private respondent fall within said
definition?
To the respondent tribunal,
Protestee may even be declared a natural-born citizen of the Philippines under the
first sentence of Sec. 2 of Article IV of the 1987 Constitution because he did not

have "to perform any act to acquire or perfect his Philippine citizenship." It bears to
repeat that on 15 May 1957, while still a minor of 9 years he already became a
Filipino citizen by declaration of law. Since his mother was a natural-born citizen at
the time of her marriage, protestee had an inchoate right to Philippine citizenship at
the moment of his birth and, consequently the declaration by virtue of Sec. 15 of CA
473 that he was a Filipino citizen retroacted to the moment of his birth without his
having to perform any act to acquire or perfect such Philippine citizenship. 6
I regret that I am neither convinced nor persuaded by such kaleidoscopic
ratiocination. The records show that private respondent was born on 19 June 1948
to the spouses Jose Ong Chuan, a Chinese citizen, and Agrifina E. Lao, a naturalborn Filipino citizen, in Laoang, Northern Samar. In other words, at birth, private
respondent was a Chinese citizen (not a natural-born Filipino citizen) because his
father was then a Chinese citizen (not a naturalized Filipino citizen). Under the 1935
Constitution which was enforced at the time of private respondent's birth on 19 June
1948, only those whose fathers were citizens of the Philippines were considered
Filipino citizens. Those whose mothers were citizens of the Philippines had to elect
Philippine citizenship upon reaching the age of majority, in order to be considered
Filipino citizens. 7
Following the basic definition in the 1987 Constitution of a natural-born citizen, in
relation to the 1935 Constitution, private respondent is not a natural-born Filipino
citizen, having been born a Chinese citizen by virtue of the Chinese citizenship of
his father at the time of his birth, although from birth, private respondent had the
right to elect Philippine citizenship, the citizenship of his mother, but only upon his
reaching the age of majority.
While under Section 15 of the Revised Naturalization Law (C.A. 473) minor children
of a naturalized citizen (father), who were born in the Philippines prior to the
naturalization of the parent automatically become Filipino citizens, 8 this does not
alter the fact that private respondent was not born to a Filipino father, and the
operation of Section 15 of CA 473 did not confer upon him the status of a naturalborn citizen merely because he did not have to perform any act to acquire or
perfect his status as a Filipino citizen.
But even assuming arguendo that private respondent could be considered a naturalborn citizen by virtue of the operation of CA 473, petitioners however contend that
the naturalization of private respondent's father was invalid and void from the
beginning, and, therefore, private respondent is not even a Filipino citizen.
Respondent tribunal in its questioned decision ruled that only a direct proceeding
for nullity of naturalization as a Filipino citizen is permissible, and, therefore, a
collateral attack on Ong Chuan's naturalization is barred in an electoral contest
which does not even involve him (Ong Chuan).
Private respondent, for his part, avers in his Comment that the challenge against
Ong Chuan's naturalization must emanate from the Government and must be made
in a proper/appropriate and direct proceeding for de-naturalization directed against
the proper party, who in such case is Ong Chuan, and also during his lifetime.

A judgment in a naturalization proceeding is not, however, afforded the character of

impregnability under the principle of res judicata. 9 Section 18 of CA 473 provides
that a certificate of naturalization may be cancelled upon motion made in the
proper proceeding by the Solicitor General or his representative, or by the proper
provincial fiscal.
In Republic vs. Go Bon Lee, 10 this Court held that:
An alien friend is offered under certain conditions the privilege of citizenship. He
may accept the offer and become a citizen upon compliance with the prescribed
conditions, but not otherwise. His claim is of favor, not of right. He can only become
a citizen upon and after a strict compliance with the acts of Congress. An applicant
for this high privilege is bound, therefore, to conform to the terms upon which alone
the right he seeks can be conferred. It is his province, and he is bound, to see that
the jurisdictional facts upon which the grant is predicated actually exist and if they
do not he takes nothing by this paper grant.
xxx

xxx

xxx

Congress having limited this privilege to a specified class of persons, no other

person is entitled to such privilege, nor to a certificate purporting to grant it, and
any such certificate issued to a person not so entitled to receive it must be treated
as a mere nullity, which confers no legal rights as against the government, from
which it has been obtained without warrant of law.
"Naturalization is not a right, but a privilege of the most discriminating as well as
delicate and exacting nature, affecting public interest of the highest order, and
which may be enjoyed only under the precise conditions prescribed by law therefor."
11
Considering the legal implications of the allegation made by the petitioners that the
naturalization of private respondent's father Ong Chuan, is a nullity, the Court
should make a ruling on the validity of said naturalization proceedings. This course
of action becomes all the more inevitable and justified in the present case where, to
repeat for stress, it is claimed that a foreigner is holding a public
office. 12
It cannot be overlooked, in this connection, that the citizenship of private
respondent is derived from his father. If his father's Filipino citizenship is void from
the beginning, then there is nothing from which private respondent can derive his
own claimed Filipino citizenship. For a spring cannot rise higher than its source. And
to allow private respondent to avail of the privileges of Filipino citizenship by virtue
of a void naturalization of his father, would constitute or at least sanction a
continuing offense against the Constitution.
The records show that private respondent's father, Jose Ong Chuan, took the oath of
allegiance to the Constitution and the Philippine Government, as prescribed by
Section 12 of CA 473 on the same day (15 May 1957) that the CFI issued its order
directing the clerk of court to issue the corresponding Certificate of Naturalization
and for the applicant to take the oath of allegiance.

However, it is settled that an order granting a petition to take the requisite oath of
allegiance of one who has previously obtained a decision favorable to his
application for naturalization, is appealable. It is, therefore, improper and illegal to
authorize the taking of said oath upon the issuance of said order and before the
expiration of the reglementary period to perfect any appeal from said order. 13
In Cua Sun Ke vs. Republic, 14 this Court held that:
Administration of the oath of allegiance on the same day as issuance of order
granting citizenship is irregular and makes the proceedings so taken null and void.
(Republic vs. Guy, 115 SCRA 244 [1982]; citing the case of Ong So vs. Republic of
the Philippines, 121 Phil. 1381).
It would appear from the foregoing discussion that the naturalization of Jose Ong
Chuan (private respondent's father) was null and void. It follows that the private
respondent did not acquire any legal rights from the void naturalization of his father
and thus he cannot himself be considered a Filipino citizen, more so, a natural-born
Filipino citizen.
But assuming that the CFI order of 15 May 1957 directing the clerk of court to issue
the certificate of naturalization to Ong Chuan and for the latter to take the oath of
allegiance was final and not appealable, the resulting naturalization of Ong Chuan
effected, as previously stated, an automatic naturalization of private respondent,
then a minor, as a Filipino citizen on 15 May 1957, but not his acquisition or
perfection of the status of a natural-born Filipino citizen.
Let us now look into the question of whether or not private respondent acquired the
status of a natural-born Filipino citizen by reason of the undisputed fact that his
mother was a natural-born Filipino citizen. This in turn leads us to an examination of
the second sentence in Article IV, Section 2 of the 1987 Constitution. It expands, in
a manner of speaking, in relation to Section 1, paragraph (3) of the same Article IV,
the status of a natural-born Filipino citizen to those who elect Philippine citizenship
upon reaching the age of majority. The right or privilege of election is available,
however, only to those born to Filipino mothers under the 1935 Constitution, and
before the 1973 Constitution took effect on 17 January 1973.
The petitioners contend that the respondent tribunal acted in excess of its
jurisdiction or gravely abused its discretion as to exceed its jurisdiction in
"distorting" the conferment by the 1987 Constitution of the status of "natural-born"
Filipino citizen on those who elect Philippine citizenship all in its strained effort,
according to petitioners, to support private respondent's qualification to be a
Member of the House of Representatives. 15
Petitioners argue that the clear, unambiguous wording of section 1(3) of Article IV of
the 1987 Constitution contemplates that only the legitimate children of Filipino
mothers with alien father, born before 17 January 1973 and who would reach the
age of majority (and thus elect Philippine citizenship) after the effectivity of the
1987 Constitution are entitled to the status of natural-born Filipino citizen. 16

The respondent tribunal in resolving the issue of the constitutional provisions'

interpretation, found reason to refer to the interpellations made during the 1986
Constitutional Commission. It said:
That the benevolent provisions of Sections 2 and 1(3) of Article IV of the 1987
Constitution was (sic) intended by its (sic) framers to be endowed, without
distinction, to all Filipinos by election pursuant to the 1935 Constitution is more than
persuasively established by the extensive interpellations and debate on the issue as
borne by the official records of the 1986 Constitutional Commission. 17
Although I find the distinction as to when election of Philippine citizenship was made
irrelevant to the case at bar, since private respondent, contrary to the conclusion of
the respondent tribunal, did not elect Philippine citizenship, as provided by law, I
still consider it necessary to settle the controversy regarding the meaning of the
constitutional provisions in question.
I agree with respondent tribunal that the debates, interpellations petitions and
opinions expressed in the 1986 Constitutional Commission may be resorted to in
ascertaining the meaning of somewhat elusive and even nebulous constitutional
provisions. Thus
The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of
the people adopting it should be given effect. The primary task in constitutional
construction is to ascertain and thereafter assure the realization of the purpose of
the framers and of the people in the adoption of the Constitution. It may also be
safely assumed that the people in ratifying the constitution were guided mainly by
the explanation offered by the framers. 18
The deliberations of the 1986 Constitutional Commission relevant to Section 2,
Article IV in relation to Section 1(3) of the same Article, appear to negate the
contention of petitioners that only those born to Filipino mothers before 17 January
1973 and who would elect Philippine citizenship after the effectivity of the 1987
Constitution, are to be considered natural-born Filipino citizens.
During the free-wheeling discussions on citizenship, Commissioner Treas
specifically asked Commissioner Bernas regarding the provisions in question, thus:
MR. TRENAS:The Committee on Citizenship, Bill of Rights, Political Rights and
Obligations and Human Rights has more or less decided to extend the interpretation
of who is a natural-born Filipino citizen as provided in Section 4 of the 1973
Constitution, by adding that persons who have elected Philippine citizenship under
the 1935 Constitution shall be considered natural-born. Am I right, Mr. Presiding
Officer?
FR BERNAS: Yes.
MR. TRENAS:And does the Commissioner think that tills addition to Section 4 of the
1973 Constitution would be contrary to the spirit of that section?

FR BERNAS: Yes, we are quite aware that it is contrary to the letter really. But
whether it is contrary to the spirit is something that has been debated before and is
being debated even now. We will recall that during the 1971 Constitutional
Convention, the status of natural-born citizenship of one of the delegates, Mr. Ang,
was challenged precisely because he was a citizen by election. Finally, the 1971
Constitutional Convention considered him a natural-born citizen, one of the
requirements to be a Member of the 1971 Constitutional Convention. The reason
behind that decision was that a person under his circumstances already had the
inchoate right to be a citizen by the fact that the mother was a Filipino. And as a
matter of fact, the 1971 Constitutional Convention formalized that recognition by
adopting paragraph 2 of Section 1 of the 1971 Constitution. So, the entire purpose
of this proviso is simply to perhaps remedy whatever injustice there may be so that
these people born before January 17, 1973 who are not naturalized and people who
are not natural born but who are in the same situation as we are considered naturalborn citizens. So, the intention of the Committee in proposing this is to equalize
their status. 19
When asked to clarify the provision on natural-born citizens, Commissioner Bernas
replied to Commissioner Azcuna thus:
MR. AZCUNA:
With respect to the proviso in Section 4, would this refer only to
those who elect Philippine citizenship after the effectivity of the 1973 Constitution
or would it also cover those who elected it under the 1935 Constitution?
FR BERNAS: It would apply to anybody who elected Philippine citizenship by virtue
of the provision of the 1935 Constitution, whether the election was done before or
after 17 January 1973. 20
And during the period of amendments. Commissioner Rodrigo explained the
purpose of what now appear as Section 2 and Section 1, paragraph (3) of Article IV
of the 1987 Constitution, thus:
MR. RODRIGO:
The purpose of that proviso is to remedy an inequitable
situation. Between 1935 and 1973, when we were under the 1935 Constitution,
those born of Filipino fathers but alien mothers were natural-born Filipinos. However,
those born of Filipino mothers but alien fathers would have to elect Philippine
citizenship upon reaching the age of majority; and, if they do elect, they become
Filipino citizens, yet, but not natural-born Filipino citizens.
The 1973 Constitution equalized the status of those born of Filipino mothers and
those born of Filipino fathers. So that from January 17, 1973 when the 1973
Constitution took effect, those born of Filipino mothers but of alien fathers are
natural-born Filipino citizens. Also, those who are born of Filipino fathers and alien
mothers are natural-born Filipino citizens.
If the 1973 Constitution equalized the status of a child born of a Filipino mother and
that born of a Filipino father, why do we not give a chance to a child born before
January 17, 1973, if and when he elects Philippine citizenship, to be in the same
status as one born of a Filipino father namely, natural-born citizen.

Another thing I stated is equalizing the status of a father and a mother vis-a-vis the
child. I would like to state also that we showed equalize the status of a child born of
a Filipino mother the day before January 17, 1973 and a child born also of a Filipino
mother on January 17 or 24 hours later. A child born of a Filipino mother but an alien
father one day before January 17, 1973 is a Filipino citizen, if he elects Philippine
citizenship, but he is not a natural-born Filipino citizen. However, the other child who
luckily was born 24 hours later maybe because of parto laborioso is a naturalborn Filipino citizen. 21
It would appear then that the intent of the framers of the 1987 Constitution in
defining a natural-born Filipino citizen was to equalize the position of Filipino fathers
and Filipino mothers as to their children becoming natural-born Filipino citizens. In
other words, after 17 January 1973, effectivity date of the 1973 Constitution, all
those born of Filipino fathers (with alien spouse) or Filipino mothers (with alien
spouse) are natural-born Filipino citizens. But those born to Filipino mothers prior to
17 January 1973 must still elect Philippine citizenship upon their reaching the age of
majority, in order to be deemed natural-born Filipino citizens. The election, which is
related to the attainment of the age of majority, may be made before or after 17
January 1973. This interpretation appears to be in consonance with the fundamental
purpose of the Constitution which is to protect and enhance the people's individual
interests, 22 and to foster equality among them.
Since private respondent was born on 19 June 1948 (or before 17 January 1973) to a
Filipino mother (with an alien spouse) and should have elected Philippine citizenship
on 19 June 1969 (when he attained the age of majority), or soon thereafter, in order
to have the status of a natural-born Filipino citizen under the 1987 Constitution, the
vital question is: did private respondent really elect Philippine citizenship? As earlier
stated, I believe that private respondent did not elect Philippine citizenship, contrary
to the ruling of the respondent tribunal.
The respondent tribunal, on this issue, ruled as follows:
Where a person born to a Filipino mother and an alien father had exercised the right
of suffrage when he came of age, the same constitutes a positive act of election of
Philippine citizenship. (Florencio vs. Mallare) [sic] The acts of the petitioner in
registering as a voter, participating in elections and campaigning for certain
candidates were held by the Supreme Court as sufficient to show his preference for
Philippine citizenship. Accordingly, even without complying with the formal
requisites for election, the petitioner's Filipino citizenship was judicially upheld. 23
I find the above ruling of the respondent tribunal to be patently erroneous and
clearly untenable, as to amount to grave abuse of discretion. For it is settled
doctrine in this jurisdiction that election of Philippine citizenship must be made in
accordance with Commonwealth Act 625. Sections 1 and 2 24 of the Act mandate
that the option to elect Philippine citizenship must be effected expressly not
impliedly.
The respondent tribunal cites In re: Florencio Mallare 25 which held that Esteban
Mallare's exercise of the right of suffrage when he came of age, constituted a
positive act of election of Philippine citizenship.

Mallare, cited by respondent tribunal as authority for the doctrine of implied election
of Philippine citizenship, is not applicable to the case at bar. The respondent tribunal
failed to consider that Esteban Mallare reached the age of majority in 1924, or
seventeen (17) years before CA 625 was approved and, more importantly, eleven
(11) years before the 1935 Constitution (which granted the right of election) took
effect.
To quote Mr. Justice Fernandez in Mallare:
Indeed, it would be unfair to expect the presentation of a formal deed to that effect
considering that prior to the enactment of Commonwealth Act 625 on June 7, 1941,
no particular proceeding was required to exercise the option to elect Philippine
citizenship, granted to the proper party by Section 1, subsection 4, Article IV of the
1935 Philippine Constitution. 26
Moreover, Esteban Mallare was held to be a Filipino citizen because he was an
illegitimate (natural) child of a Filipino mother and thus followed her citizenship. I
therefore agree with the petitioners' submission that, in citing the Mallare case, the
respondent tribunal had engaged in an obiter dictum.
The respondent tribunal also erred in ruling that by operation of CA 473, the Revised
Naturalization Law, providing for private respondent's acquisition of Filipino
citizenship by reason of the naturalization of his father, the law itself had already
elected Philippine citizenship for him. For, assuming arguendo that the
naturalization of private respondent's father was valid, and that there was no
further need for private respondent to elect Philippine citizenship (as he had
automatically become a Filipino citizen) yet, this did not mean that the operation of
the Revised Naturalization Law amounted to an election by him of Philippine
citizenship as contemplated by the Constitution. Besides, election of Philippine
citizenship derived from one's Filipino mother, is made upon reaching the age of
majority, not during one's minority.
There is no doubt in my mind, therefore, that private respondent did not elect
Philippine citizenship upon reaching the age of majority in 1969 or within a
reasonable time thereafter as required by CA 625. Consequently, he cannot be
deemed a natural-born Filipino citizen under Sections 2 and 1(3), Article IV of the
1987 Constitution.
Based on all the foregoing considerations and premises, I am constrained to state
that private respondent is not a natural-born citizen of the Philippines in
contemplation of Section 6, Article VI of the 1987 Constitution in relation to Sections
2 and 1(3), Article IV thereof, and hence is disqualified or ineligible to be a Member
of the House of Representatives.
At this point, I find it no longer necessary to rule on the issue of required residence,
inasmuch as the Constitution requires that a Member of the House of
Representatives must be both a natural-born Filipino citizen and a resident for at
least one (1) year in the district in which he shall be elected.

The next question that comes up is whether or not either of the petitioners can
replace private respondent as the Representative of the second legislative district of
Northern Samar in the House of Representatives.
I agree with respondent tribunal that neither of the petitioners may take the place of
private respondent in the House of Representatives representing the second district
of Northern Samar. The ruling of this Court in Ramon L. Labo, Jr. vs. The Commission
on Elections (COMELEC) EN BANC and Luis L. Lardizabal, 27 is controlling. There we
held that Luis L. Lardizabal, who filed the quo warranto petition, could not replace
Ramon L. Labo, Jr. as mayor of Baguio City for the simple reason that as he obtained
only the second highest number of votes in the election, he was obviously not the
choice of the people of Baguio City for mayor of that City.
A petition alleging that the candidate-elect is not qualified for the office is, in effect,
a quo warranto proceeding even if it is labelled an election protest. 28 It is a
proceeding to unseat the ineligible person from office but not necessarily to install
the protestant in his place. 29
The general rule is that the fact that a plurality or a majority of the votes are cast
for an ineligible candidate in an election does not entitle the candidate receiving the
next highest number of votes to be declared elected. In such a case, the electors
have failed to make a choice and the election is a nullity. 30
Sound policy dictates that public elective offices are filled by those who have the
highest number of votes cast in the election for that office, and it is a fundamental
idea in all republican forms of government that no one can be declared elected and
no measure can be declared carried unless he or it receives a majority or plurality of
the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676).
As early as 1912, this Court has already declared that the candidate who lost in an
election cannot be proclaimed the winner in the event that the candidate who won
is found ineligible for the office to which he was elected. This was the ruling in
Topacio v. Paredes (23 Phil. 238)
Again, the effect of a decision that a candidate is not entitled to the office because
of fraud or irregularities in the election is quite different from that produced by
declaring a person ineligible to hold such an office. . . . If it be found that the
successful candidate (according to the board of canvassers) obtained a plurality in
an illegal manner, and that another candidate was the real victor, the former must
retire in favor of the latter. In the other case, there is not, strictly speaking, a
contest, as the wreath of victory cannot be transferred from an ineligible to any
other candidate when the sole question is the eligibility of the one receiving a
plurality of the legally cast ballots. . . . 31
The recognition of Emil L. Ong by the 1971 Constitutional Convention as a naturalborn Filipino citizen, in relation to the present case.
Private respondent, as previously stated, is a full brother of Emil L. Ong, both of
them having the same father and mother.

Private respondent, relying on a resolution of the 1971 Constitutional Convention 32

to the effect that Emil L. Ong was a natural-born Filipino citizen, alleged before the
House Electoral Tribunal that, by analogy, he is himself a natural-born Filipino
citizen. This submission, while initially impressive, is, as will now be shown, flawed
and not supported by the evidence. Not even the majority decision of the electoral
tribunal adopted the same as the basis of its decision in favor of private respondent.
The tribunal, in reference to this submission, said:
Be that as it may and in the light of the Tribunal's disposition of protestee's
citizenship based on an entirely different set of circumstances, apart from the
indisputable fact that the matters attempted to be brought in issue in connection
therewith are too far removed in point of time and relevance from the decisive
events relied upon by the Tribunal, we view these two issues as being already
inconsequential. 33
The electoral tribunal (majority) instead chose to predicate its decision on the
alleged citizenship by naturalization of private respondent's father (Ong Chuan) and
on the alleged election of Philippine citizenship by private respondent.
Emil L. Ong, was elected delegate to the 1971 Constitutional Convention. Electoral
protests, numbers EP-07 and EP-08, were filed by Leonardo D. Galing and Gualberto
D. Luto against Emil L. Ong, contesting his citizenship qualification. The Committee
on Election Protests Credentials of the 1971 Contitution Convention heard the
protests and submitted to the Convention a report dated 4 September 1972, the
dispositive portion of which stated:
It appearing that protestee's grandfather was himself a Filipino citizen under the
provisions of the Philippine Bill of 1902 and the Treaty of Paris of December 10,
1898, thus conferring upon protestee's own father, Ong Chuan, Philippine
citizenship at birth, the conclusion is inescapable that protestee himself is a naturalborn citizen, and is therefore qualified to hold the office of delegate to the
Constitutional Convention. 34
On 28 November 1972, during a plenary session of the 1971 Constitutional
Convention, the election protests filed against Emil L. Ong were dismissed, following
the report of the Committee on Election Protests and Credentials. 35
It is evident, up to this point, that the action of the 1971 Constitutional Convention
in the case of Emil L. Ong is, to say the least, inconclusive to the case at bar,
because
a)
the 1971 Constitutional Convention decision in the Emil L. Ong case involved
the 1935 Constitution; the present case, on the other hand involves the 1987
Constitution:
b)
the 1935 Constitution contained no specific definition of a "natural-born
citizen" of the Philippines; the 1987 Constitution contains a precise and specific
definition of a "natural-born citizen" of the Philippines in Sec. 2, Art. IV thereof and
private respondent does not qualify under such definition in the 1987 Constitution;

c)
the decision of the 1971 Constitutional Convention in the case of Emil L. Ong
was a decision of a political body, not a court of law. And, even if we have to take
such a decision as a decision of a quasi-judicial body (i.e., a political body exercising
quasi-judicial functions), said decision in the Emil L. Ong case can not have the
category or character of res judicata in the present judicial controversy, because
between the two (2) cases, there is no identity of parties (one involves Emil L. Ong,
while the other involves private respondent) and, more importantly, there is no
identity of causes of action because the first involves the 1935 Constitution while
the second involves the 1987 Constitution.
But even laying aside the foregoing reasons based on procedural rules and logic,
the evidence submitted before the electoral tribunal and, therefore, also before this
Court, does not support the allegations made by Emil L. Ong before the 1971
Constitutional Convention and inferentially adopted by private respondent in the
present controversy. This leads us to an interesting inquiry and finding.
The 1971 Constitutional Convention in holding that Emil L. Ong was a "natural-born
citizen" of the Philippines under the 1935 Constitution laid stress on the "fact"
and this appears crucial and central to its decision that Emil L. Ong's grandfather,
Ong Te became a Filipino citizen under the Philippine Bill of 1902 and, therefore, his
descendants like Emil L. Ong (and therefore, also private respondent) became
natural-born Filipinos. The 1971 Constitutional Convention said:
Ong Te Emil Ong's grandfather, was a Spanish subject residing in the Philippines on
April 11, 1899 and was therefore one of the many who became ipso facto citizens of
the Philippines under the provisions of the Philippine Bill of 1902. Said law expressly
declared that all inhabitants of the Philippine Islands who continued to reside
therein and who were Spanish subjects on April 11, 1899 as well as their children
born subsequent thereto, "shall be deemed and held to be citizens of the Philippine
Islands." (Section 4, Philippine Bill of
1902). 36
The "test" then, following the premises of the 1971 Constitutional Convention, is
whether or not Ong Te private respondent's and Emil L. Ong's grandfather was "an
inhabitant of the Philippines who continued to reside therein and was a Spanish
subject on April 11, 1899." If he met these requirements of the Philippine Bill of
1902, then, Ong Te was a Filipino citizen; otherwise, he was not a Filipino citizen.
Petitioners (protestants) submitted and offered in evidence before the House
Electoral Tribunal exhibits W, X, Y, Z ,AA, BB, CC, DD and EE which are copies of
entries in the "Registro de Chinos" from years 1896 to 1897 which show that Ong Te
was not listed as an inhabitant of Samar where he is claimed to have been a
resident. Petitioners (protestants) also submitted and offered in evidence before the
House Electoral Tribunal exhibit V, a certification of the Chief of the Archives
Division, Records and Management and Archives Office, stating that the name of
Ong Te does not appear in the "Registro Central de Chinos" for the province of
Samar for 1895. These exhibits prove or at least, as petitioners validly argue, tend
to prove that Ong Te was NOT a resident of Samar close to 11 April 1899 and,
therefore, could not continue residing in Samar, Philippines after 11 April 1899,
contrary to private respondent's pretense. In the face of these proofs or evidence,

private respondent FAILED TO PRESENT ANY REBUTTAL OR COUNTERVAILING

EVIDENCE, except the decision of the 1971 Constitutional Convention in the case of
Emil L. Ong, previously discussed.
It is not surprising then that, as previously noted, the majority decision of the House
Electoral Tribunal skirted any reliance on the alleged ipso facto Filipino citizenship of
Ong Te under the Philippine Bill of 1902. It is equally not surprising that Ong Chuan,
the son of Ong Te and father or private respondent, did not even attempt to claim
Filipino citizenship by reason of Ong Te's alleged Filipino citizenship under the
Philippine Bill of 1902 but instead applied for Philippine citizenship through
naturalization.
Nor can it be contended by the private respondent that the House Electoral Tribunal
should no longer have reviewed the factual question or issue of Ong Te's citizenship
in the light of the resolution of the 1971 Constitutional Convention finding him (Ong
Te to have become a Filipino citizen under the Philippine Bill of 1902. The tribunal
had to look into the question because the finding that Ong Te had become a Filipino
citizen under the Philippine Bill of 1902 was the central core of said 1971 resolution
but as held in Lee vs. Commissioners of
Immigration: 37
. . . Everytime the citizenship of a person is material or indispensable in a judicial or
administrative case, whatever the corresponding Court or administrative authority
decides therein as to such citizenship is generally not considered as res adjudicata,
hence it has to be threshed out again and again as the occasion may demand.
Which finally brings us to the resolution of this Court in Emil L. Ong vs. COMELEC, et
al., G.R. No. 67201, 8 May 1984. In connection with said resolution, it is contended
by private respondent that the resolution of the 1971 Constitutional Convention in
the Emil L. Ong case was elevated to this Court on a question involving Emil L.
Ong's disqualification to run for membership in the Batasang Pambansa and that,
according to private respondent, this Court allowed the use of the Committee
Report to the 1971 Constitutional Convention.
To fully appreciate the implications of such contention, it would help to look into the
circumstances of the case brought before this Court in relation to the Court's action
or disposition. Emil L. Ong and Edilberto Del Valle were both candidates for the
Batasang Pambansa in the 14 May 1984 election. Valle filed a petition for
disqualification with the Commission on Election on 29 March 1984 docketed as SPC
No. 84-69 contending that Ong is not a natural-born citizen. Ong filed a motion to
dismiss the petition on the ground that the judgment of the 1971 Constitutional
Convention on his status as a natural-born citizen of the Philippines bars the
petitioner from raising the Identical issue before the COMELEC. (G.R. No. 67201,
Rollo, p. 94) The motion was denied by the COMELEC, thus, prompting Emil L. Ong
to file with this Court a petition for certiorari, prohibition and mandamus with
preliminary injunction against the COMELEC, docketed as G.R. No. 67201.
In a resolution dated 8 May 1984, this Court resolved to issue a writ of preliminary
injunction enjoining respondent COMELEC from holding any further hearing on the

disqualification case entitled "Edilberto Del Valle vs. Emil Ong (SPC No. 84-69)
except to dismiss the same. (G.R. Nos. 92202-03, Rollo, p. 335)
This Court, in explaining its action, held that:
Acting on the prayer of the petitioner for the issuance of a Writ of Preliminary
Injunction, and considering that at the hearing this morning, it was brought out that
the 1971 Constitutional Convention, at its session of November 28, 1972, after
considering the Report of its Committee on Election Protests and Credentials, found
that the protest questioning the citizenship of the protestee (the petitioner herein)
was groundless and dismissed Election Protests Nos. EP 07 and EP 08 filed against
said petitioner (p. 237, Rollo), the authenticity of the Minutes of said session as well
as of the said Committee's Report having been duly admitted in evidence without
objection and bears out, for now, without need for a full hearing, that petitioner is a
natural-born citizen, the Court Resolved to ISSUE, effective immediately, a Writ of
Preliminary Injunction enjoining respondent COMELEC from holding any further
hearing on the disqualification case entitled Edilberto Del Valle vs. Emil Ong (SPC
No. 84-69) scheduled at 3:00 o'clock this afternoon, or any other day, except to
dismiss the same. This is without prejudice to any appropriate action that private
respondent may wish to take after the elections. (emphasis supplied)
It is thus clear that the resolution of this Court in G.R. No. 67201 was rendered
without the benefit of a hearing on the merits either by the Court or by the
COMELEC and merely on the basis of a Committee's Report to the 1971
Constitutional Convention, and that this Court (and this is quite significant) did not
foreclose any appropriate action that Del Valle (therein petitioner) may wish to take
after the elections.
It is thus abundantly clear also that to this Court, the resolution of the 1971
Constitutional Convention recognizing Emil L. Ong as a natural-born citizen under
the 1935 Constitution did not foreclose a future or further proceeding in regard to
the same question and that, consequently, there is no vested right of Emil L. Ong to
such recognition. How much more when the Constitution involved is not the 1935
Constitution but the 1987 Constitution whose provisions were never considered in
all such proceedings because the 1987 Constitution was still inexistent.
A final word. It is regrettable that one (as private respondent) who unquestionably
obtained the highest number of votes for the elective position of Representative
(Congressman) to the House of Representatives for the second district of Northern
Samar, would have had to cease in office by virtue of this Court's decision, if the full
membership of the Court had participated in this case, with the result that the
legislative district would cease to have, in the interim, a representative in the House
of Representatives. But the fundamental consideration in cases of this nature is the
Constitution and only the Constitution. It has to be assumed, therefore, that when
the electorate in the second legislative district of Northern Samar cast the majority
of their votes for private respondent, they assumed and believed that he was fully
eligible and qualified for the office because he is a natural-born Filipino citizen. That
erroneous assumption and belief can not prevail over, but must yield to the majesty
of the Constitution.

This is a sad day for the Constitution. As I see it, the Constitution mandates that
members of the House of Representatives should be "natural-born citizens of the
Philippines". The voting majority of the present Court says, "Filipino citizens will do."
This is bad enough. What is worse is, the same voting majority, in effect, says,
"even aliens will do as well."
WHEREFORE, my vote is clear: to declare private respondent Jose L. Ong Chua, Jr.,
as he clearly is, NOT a natural-born citizen of the Philippines and therefore NOT
QUALIFIED to be a Member of the House of Representatives, Congress of the
Philippines.
Narvasa, J., Paras, J. and Regalado, J., dissenting.
SARMIENTO, J., concurring:
I concur with the majority.
(1)
I wish to point out first that the question of citizenship is a question of fact, and as a
rule, the Supreme Court leaves facts to the tribunal that determined them. I am
quite agreed that the Electoral Tribunal of the House of Representatives, as the
"sole judge" of all contests relating to the membership in the House, as follows:
Sec. 17.
The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests relating to the
election, returns, and qualifications of their respective Members. Each Electoral
Tribunal shall be composed of nine Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief Justice, and the remaining six shall be
Members of the Senate or the House of Representatives, as the case may be, who
shall be chosen on the basis of proportional representation from the political parties
and the parties or organizations registered under the party-list system represented
therein. The senior Justice in the Electoral Tribunal shall be its Chairman. 1
is the best judge of facts and this Court can not substitute its judgment because it
thinks it knows better.
In the case of Aratuc v. Commission on Elections, 2 it was held that this Court can
not review the errors of the Commission on Elections (then the "sole judge" of all
election contests) in the sense of reviewing facts and unearthing mistakes and
that this Court's jurisdiction is to see simply whether or not it is guilty of a grave
abuse of discretion. It is true that the new Constitution has conferred expanded
powers on the Court, 3 but as the Charter states, our authority is "to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government." 4 It is not to review facts.
"Grave abuse of discretion" has been defined as whimsical exercise of power
amounting to excess of jurisdiction, or otherwise, to denial of due process of law. 5

I find none of that here.

As the majority indicates, Jose Ong's citizenship is a matter of opinion with which
men may differ, but certainly, it is quite another thing to say that the respondent
Tribunal has gravely abused its discretion because the majority has begged to differ.
It does not form part of the duty of the Court to remedy all imagined wrongs
committed by the Government.
The respondent Tribunal has spoken. According to the Tribunal, Jose Ong is a Filipino
citizen and consequently, is possessed of the qualifications to be a member of the
House. As the sole judge, precisely, of this question, the Court can not be more
popish than the pope.
(2)
I can not say, in the second place, that the Decision in question stands exactly on
indefensible grounds. It is to be noted that Jose Ong had relied on the Report dated
September 4, 1972 of the 1971 Constitutional Convention Committee 6 on Election
Protests and Credentials, in which the Committees upheld the citizenship, and
sustained the qualification to sit as Delegate, of Emil Ong, Jose Ong's full blood
brother. According to the Report, Ong Te the Ongs' grandfather, was already a
Filipino citizen having complied with the requirements on Filipinization by existing
laws for which his successors need not have elected Filipino citizenship. I quote:
xxx

xxx

xxx

There is merit in protestee's claim. There can hardly be any doubt that Ong Te
protestees's grandfather, was a Spanish subject residing in the Philippines on April
11, 1899, and was therefore one of the many who became ipso facto citizens of the
Philippines under the provisions of the Philippine Bill of 1902. Said law expressly
declared that all inhabitants of the Philippine Islands who continued to reside
therein and who were Spanish subjects on April 11, 1899, as well as their children
born subsequent thereto, "shall be deemed and held to be citizens of the Philippine
Islands" (Sec. 4, Philippine Bill of 1902). Excepted from the operation of this rule
were Spanish subjects who shall have elected to preserve their allegiance to the
Crown of Spain in accordance with the Treaty of Paris of December 10, 1898. But
under the Treaty of Paris, only Spanish subjects who were natives of Peninsular
Spain had the privilege of preserving their Spanish nationality. 7
xxx

xxx

xxx

xxx

xxx

xxx

As earlier noted, protestee's grandfather established residence in the Philippines in

1895, as shown by the Registro Central de Chinos. He was also issued a certificate
of registration. He established a business here, and later acquired real property.
Although he went back to China for brief visits, he invariably came back. He even
brought his eldest son, Ong Chuan, to live in the Philippines when the latter was
only 10 years old. And Ong Chuan was admitted into the country because, as duly
noted on his landing certificate, his father, Ong Te had been duly enrolled under CR

16009-36755 i.e., as a permanent resident. Indeed, even when Ong Te went back
to China in the 1920's for another visit, he left his son, Ong Chuan, who was then
still a minor, in the Philippines obviously because he had long considered the
Philippines his home. The domicile he established in 1895 is presumed to have
continued up to, and beyond, April 11, 1899, for, as already adverted to, a domicile
once acquired is not lost until a new one is gained. The only conclusion then can
thus be drawn is that Ong Te was duly domiciled in the Philippines as of April 11,
1899, within the meaning of par. 4, Art. 17, of the Civil Code of 1889 and was,
consequently, a Spanish subject, he qualified as a Filipino citizen under the
provisions of Section 4 of the Philippine Bill of 1902. 8
It is true that Ong Chuan, the Ong brothers' father, subsequently sought
naturalization in the belief that he was, all along, a Chinese citizen, but as the
Report held:
Protestants, however, make capital of the fact that both Ong Te and his son, Ong
Chuan (protestee's father), appear to have been registered as Chinese citizens even
long after the turn of the century. Worse, Ong Chuan himself believed the was alien,
to the extent of having to seek admission as a Pilipino citizen through naturalization
proceedings. The point, to our mind, is neither crucial nor substantial. Ong's status
as a citizen is a matter of law, rather than of personal belief. It is what the law
provides, and not what one thinks his status to be, which determines whether one is
a citizen of a particular state or not. Mere mistake or misapprehension as to one's
citizenship, it has been held, is not a sufficient cause or reason for forfeiture of
Philippine citizenship; it does not even constitute estoppel (Palanca vs. Republic, 80
Phil. 578, 584). Too, estoppel applies only to questions of fact and not of law
(Tanada v. Cuenco, L-10520, Feb. 28, 1957). 9
It is to be noted that the Report was unanimously approved by the Committee, and
on November 28, 1972, approved without any objection by the Convention in
plenary session. 10
I am not, of course, to be mistaken as acting as mouthpiece of Emil Ong, but in all
candor, I speak from experience, because when the Convention approved the
Report in question, I was one of its vice-presidents and the presiding officer.
It is to be noted finally, that the matter was elevated to this Court (on a question
involving Emil Ong's qualification to sit as member of the defunct Batasang
Pambansa) 11 in which this Court allowed the use of the Committee Report.
Faced with such positive acts of the Government, I submit that the question of the
Ong's citizenship is a settled matter. Let it rest.
It is true that Electoral Protest Nos. EP-07 and EP-08 of the Convention as well as
G.R. No. 67201 of this Court, involved Emil Ong and not his brother; I submit,
however, that what is sauce for the goose is sauce for the gander.
I also submit that the fundamental question is whether or not we will overturn the
unanimous ruling of 267 delegates, indeed, also of this Court.

Mercado v. Manzano
SYLLABI/SYNOPSIS
EN BANC
[G.R. No. 135083. May 26, 1999]
ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS MANZANO and the
COMMISSION ON ELECTIONS, respondents.
DECISION
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
Ernesto S. Mercado
Gabriel V. Daza III

103,853
100,894
54,275[1]

The proclamation of private respondent was suspended in view of a pending petition

for disqualification filed by a certain Ernesto Mamaril who alleged that private
respondent was not a citizen of the Philippines but of the United States.
In its resolution, dated May 7, 1998,[2] the Second Division of the COMELEC granted
the petition of Mamaril and ordered the cancellation of the certificate of candidacy
of private respondent on the ground that he is a dual citizen and, under 40(d) of
the Local Government Code, persons with dual citizenship are disqualified from
running for any elective position. The COMELECs Second Division said:
What is presented before the Commission is a petition for disqualification of
Eduardo Barrios Manzano as candidate for the office of Vice-Mayor of Makati City in
the May 11, 1998 elections. The petition is based on the ground that the
respondent is an American citizen based on the record of the Bureau of Immigration
and misrepresented himself as a natural-born Filipino citizen.
In his answer to the petition filed on April 27, 1998, the respondent admitted that he
is registered as a foreigner with the Bureau of Immigration under Alien Certificate of
Registration No. B-31632 and alleged that he is a Filipino citizen because he was
born in 1955 of a Filipino father and a Filipino mother. He was born in the United
States, San Francisco, California, on September 14, 1955, and is considered an
American citizen under US Laws. But notwithstanding his registration as an
American citizen, he did not lose his Filipino citizenship.
Judging from the foregoing facts, it would appear that respondent Manzano is both a
Filipino and a US citizen. In other words, he holds dual citizenship.
The question presented is whether under our laws, he is disqualified from the
position for which he filed his certificate of candidacy. Is he eligible for the office he
seeks to be elected?

Under Section 40(d) of the Local Government Code, those holding dual citizenship
are disqualified from running for any elective local position.
WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios
Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati City.
On May 8, 1998, private respondent filed a motion for reconsideration.[3] The
motion remained pending even until after the election held on May 11, 1998.
Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the
COMELEC, the board of canvassers tabulated the votes cast for vice mayor of
Makati City but suspended the proclamation of the winner.
On May 19, 1998, petitioner sought to intervene in the case for disqualification.[4]
Petitioners motion was opposed by private respondent.
The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc
rendered its resolution. Voting 4 to 1, with one commissioner abstaining, the
COMELEC en banc reversed the ruling of its Second Division and declared private
respondent qualified to run for vice mayor of the City of Makati in the May 11, 1998
elections.[5] The pertinent portions of the resolution of the COMELEC en banc read:
As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco,
California, U.S.A. He acquired US citizenship by operation of the United States
Constitution and laws under the principle of jus soli.
He was also a natural born Filipino citizen by operation of the 1935 Philippine
Constitution, as his father and mother were Filipinos at the time of his birth. At the
age of six (6), his parents brought him to the Philippines using an American passport
as travel document. His parents also registered him as an alien with the Philippine
Bureau of Immigration. He was issued an alien certificate of registration. This,
however, did not result in the loss of his Philippine citizenship, as he did not
renounce Philippine citizenship and did not take an oath of allegiance to the United
States.
It is an undisputed fact that when respondent attained the age of majority, he
registered himself as a voter, and voted in the elections of 1992, 1995 and 1998,
which effectively renounced his 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 en banc hereby REVERSES the resolution of the
Second Division, adopted on May 7, 1998, ordering the cancellation of the
respondents certificate of candidacy.
We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a
candidate for the position of vice-mayor of Makati City in the May 11, 1998,
elections.
ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon
proper notice to the parties, to reconvene and proclaim the respondent Eduardo
Luis Barrios Manzano as the winning candidate for vice-mayor of Makati City.
Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the
evening of August 31, 1998, proclaimed private respondent as vice mayor of the
City of Makati.
This is a petition for certiorari seeking to set aside the aforesaid resolution of the
COMELEC en banc and to declare private respondent disqualified to hold the office
of vice mayor of Makati City. Petitioner contends that
[T]he COMELEC en banc ERRED in holding that:
A. Under Philippine law, Manzano was no longer a U.S. citizen when he:
1.
He renounced his U.S. citizenship when he attained the age of majority when
he was already 37 years old; and,
2.
He renounced his U.S. citizenship when he (merely) registered himself as a
voter and voted in the elections of 1992, 1995 and 1998.
B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the
City of Makati;
C. At the time of the May 11, 1998 elections, the resolution of the Second Division
adopted on 7 May 1998 was not yet final so that, effectively, petitioner may not be
declared the winner even assuming that Manzano is disqualified to run for and hold
the elective office of Vice-Mayor of the City of Makati.
We first consider the threshold procedural issue raised by private respondent
Manzano whether petitioner Mercado has personality to bring this suit
considering that he was not an original party in the case for disqualification filed by
Ernesto Mamaril nor was petitioners motion for leave to intervene granted.
I. PETITIONER'S RIGHT TO BRING THIS SUIT
Private respondent cites the following provisions of Rule 8 of the Rules of Procedure
of the COMELEC in support of his claim that petitioner has no right to intervene and,

therefore, cannot bring this suit to set aside the ruling denying his motion for
intervention:
Section 1. When proper and when may be permitted to intervene. Any person
allowed to initiate an action or proceeding may, before or during the trial of an
action or proceeding, be permitted by the Commission, in its discretion to intervene
in such action or proceeding, if he has legal interest in the matter in litigation, or in
the success of either of the parties, or an interest against both, or when he is so
situated as to be adversely affected by such action or proceeding.
....
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 intervenors
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 vicemayoralty post of Makati City [who] cannot be proclaimed as the Vice-Mayor of
Makati City even if the private respondent be ultimately disqualified by final and
executory judgment.
The flaw in this argument is it assumes that, at the time petitioner sought to
intervene in the proceedings before the COMELEC, there had already been a
proclamation of the results of the election for the vice mayoralty contest for Makati
City, on the basis of which petitioner came out only second to private respondent.
The fact, however, is that there had been no proclamation at that time. Certainly,
petitioner had, and still has, an interest in ousting private respondent from the race
at the time he sought to intervene. The rule in Labo v. COMELEC,[6] reiterated in
several cases,[7] only applies to cases in which the election of the respondent is
contested, and the question is whether one who placed second to the disqualified
candidate may be declared the winner. In the present case, at the time petitioner
filed a Motion for Leave to File Intervention on May 20, 1998, there had been no
proclamation of the winner, and petitioners 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 petitioners interest in the matter in litigation any less because he filed a
motion for intervention only on May 20, 1998, after private respondent had been
shown to have garnered the highest number of votes among the candidates for vice
mayor. That petitioner had a right to intervene at that stage of the proceedings for
the disqualification against private respondent is clear from 6 of R.A. No. 6646,
otherwise known as the Electoral Reforms Law of 1987, which provides:
Any candidate who has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. If for any reason a

candidate is not declared by final judgment before an election to be disqualified and

he is voted for and receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of the action, inquiry, or
protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of guilt is strong.
Under this provision, intervention may be allowed in proceedings for disqualification
even after election if there has yet been no final judgment rendered.
The failure of the COMELEC en banc to resolve petitioners motion for intervention
was tantamount to a denial of the motion, justifying petitioner in filing the instant
petition for certiorari. As the COMELEC en banc instead decided the merits of the
case, the present petition properly deals not only with the denial of petitioners
motion for intervention but also with the substantive issues respecting private
respondents alleged disqualification on the ground of dual citizenship.
This brings us to the next question, namely, whether private respondent Manzano
possesses dual citizenship and, if so, whether he is disqualified from being a
candidate for vice mayor of Makati City.
II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION
The disqualification of private respondent Manzano is being sought under 40 of the
Local Government Code of 1991 (R.A. No. 7160), which declares as disqualified
from running for any elective local position: . . . (d) Those with dual citizenship.
This provision is incorporated in the Charter of the City of Makati.[8]
Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General,
who sides with him in this case, contends that through 40(d) 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.[9] For
instance, such a situation may arise when a person whose parents are citizens of a
state which adheres to the principle of jus sanguinis is born in a state which follows
the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on
his part, is concurrently considered a citizen of both states. Considering the
citizenship clause (Art. IV) of our Constitution, it is possible for the following classes
of citizens of the Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries which follow
the principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws
of their fathers country such children are citizens of that country;

(3) Those who marry aliens if by the laws of the latters 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 individuals
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 Peoples
Republic of China, they have the Associated Legislative Council for overseas
Chinese wherein all of Southeast Asia including some European and Latin countries
were represented, which was dissolved after several years because of diplomatic
friction. At that time, the Filipino-Chinese were also represented in that Overseas
Council.
When I speak of double allegiance, therefore, I speak of this unsettled kind of
allegiance of Filipinos, of citizens who are already Filipinos but who, by their acts,
may be said to be bound by a second allegiance, either to Peking or Taiwan. I also
took close note of the concern expressed by some Commissioners yesterday,
including Commissioner Villacorta, who were concerned about the lack of
guarantees of thorough assimilation, and especially Commissioner Concepcion who
has always been worried about minority claims on our natural resources.
Dual allegiance can actually siphon scarce national capital to Taiwan, Singapore,
China or Malaysia, and this is already happening. Some of the great commercial
places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese it is of
common knowledge in Manila. It can mean a tragic capital outflow when we have to

endure a capital famine which also means economic stagnation, worsening

unemployment and social unrest.
And so, this is exactly what we ask that the Committee kindly consider
incorporating a new section, probably Section 5, in the article on Citizenship which
will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND SHALL BE
DEALT WITH ACCORDING TO LAW.
In another session of the Commission, Ople spoke on the problem of these citizens
with dual allegiance, thus:[11]
. . . A significant number of Commissioners expressed their concern about dual
citizenship in the sense that it implies a double allegiance under a double
sovereignty which some of us who spoke then in a freewheeling debate thought
would be repugnant to the sovereignty which pervades 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 Peoples Republic of China was made in 1975, a good number of
these naturalized Filipinos still routinely go to Taipei every October 10; and it is
asserted that some of them do renew their oath of allegiance to a foreign
government maybe just to enter into the spirit of the occasion when the anniversary
of the Sun Yat-Sen Republic is commemorated. And so, I have detected a genuine
and deep concern about double citizenship, with its attendant risk of double
allegiance which is repugnant to our sovereignty and national security. I appreciate
what the Committee said that this could be left to the determination of a future
legislature. But considering the scale of the problem, the real impact on the
security of this country, arising from, let us say, potentially great numbers of double
citizens professing double allegiance, will the Committee entertain a proposed
amendment at the proper time that will prohibit, in effect, or regulate double
citizenship?
Clearly, in including 5 in Article IV on citizenship, the concern of the Constitutional
Commission was not with dual citizens per se but with naturalized citizens who
maintain their allegiance to their countries of origin even after their naturalization.
Hence, the phrase dual citizenship in R.A. No. 7160, 40(d) and in R.A. No. 7854,
20 must be understood as referring to dual allegiance. Consequently, persons
with mere dual citizenship do not fall under this disqualification. Unlike those with
dual allegiance, who must, therefore, be subject to strict process with respect to the
termination of their status, for candidates with dual citizenship, it should suffice if,
upon the filing of their certificates of candidacy, they elect Philippine citizenship to
terminate their status as persons with dual citizenship considering that their
condition is the unavoidable consequence of conflicting laws of different states. As
Joaquin G. Bernas, one of the most perceptive members of the Constitutional
Commission, pointed out: [D]ual citizenship is just a reality imposed on us because
we have no control of the laws on citizenship of other countries. We recognize a

child of a Filipino mother. But whether or not she is considered a citizen of another
country is something completely beyond our control.[12]
By electing Philippine citizenship, such candidates at the same time forswear
allegiance to the other country of which they are also citizens and thereby
terminate their status as dual citizens. It may be that, from the point of view of the
foreign state and of its laws, such an individual has not effectively renounced his
foreign citizenship. That is of no moment as the following discussion on 40(d)
between Senators Enrile and Pimentel clearly shows:[13]
SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17:
Any person with dual citizenship is disqualified to run for any elective local
position. Under the present Constitution, Mr. President, someone whose mother is a
citizen of the Philippines but his father is a foreigner is a natural-born citizen of the
Republic. There is no requirement that such a natural born citizen, upon reaching
the age of majority, must elect or give up Philippine citizenship.
On the assumption that this person would carry two passports, one belonging to the
country of his or her father and one belonging to the Republic of the Philippines,
may such a situation disqualify the person to run for a local government position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment
when he would want to run for public office, he has to repudiate one of his
citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of
origin or the country of the father claims that person, nevertheless, as a citizen? No
one can renounce. There are such countries in the world.
SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in
effect, be an election for him of his desire to be considered as a Filipino citizen.
SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an
election. Under the Constitution, a person whose mother is a citizen of the
Philippines is, at birth, a citizen without any overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the
Gentlemans example, if he does not renounce his other citizenship, then he is
opening himself to question. So, if he is really interested to run, the first thing he
should do is to say in the Certificate of Candidacy that: I am a Filipino citizen, and I
have only one citizenship.
SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr.
President. He will always have one citizenship, and that is the citizenship invested
upon him or her in the Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will
prove that he also acknowledges other citizenships, then he will probably fall under
this disqualification.

This is similar to the requirement that an applicant for naturalization must renounce
all allegiance and fidelity to any foreign prince, potentate, state, or
sovereignty[14] of which at the time he is a subject or citizen before he can be
issued a certificate of naturalization as a citizen of the Philippines. In Parado v.
Republic,[15] it was held:
[W]hen a person applying for citizenship by naturalization takes an oath that he
renounces his loyalty to any other country or government and solemnly declares
that he owes his allegiance to the Republic of the Philippines, the condition imposed
by law is satisfied and complied with. The determination whether such renunciation
is valid or fully complies with the provisions of our Naturalization Law lies within the
province and is an exclusive prerogative of our courts. The latter should apply the
law duly enacted by the legislative department of the Republic. No foreign law may
or should interfere with its operation and application. If the requirement of the
Chinese Law of Nationality were to be read into our Naturalization Law, we would be
applying not what our legislative department has deemed it wise to require, but
what a foreign government has thought or intended to exact. That, of course, is
absurd. It must be resisted by all means and at all cost. It would be a brazen
encroachment upon the sovereign will and power of the people of this Republic.
III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP
The record shows that private respondent was born in San Francisco, California on
September 4, 1955, of Filipino parents. Since the Philippines adheres to the
principle of jus sanguinis, while the United States follows the doctrine of jus soli, the
parties agree that, at birth at least, he was a national both of the Philippines and of
the United States. However, the COMELEC en banc held that, by participating in
Philippine elections in 1992, 1995, and 1998, private respondent effectively
renounced his U.S. citizenship under American law, so that now he is solely a
Philippine national.
Petitioner challenges this ruling. He argues that merely taking part in Philippine
elections is not sufficient evidence of renunciation and that, in any event, as the
alleged renunciation was made when private respondent was already 37 years old,
it was ineffective as it should have been made when he reached the age of majority.
In holding that by voting in Philippine elections private respondent renounced his
American citizenship, the COMELEC must have in mind 349 of the Immigration and
Nationality Act of the United States, which provided that A person who is a national
of the United States, whether by birth or naturalization, shall lose his nationality by:
. . . (e) Voting in a political election in a foreign state or participating in an election
or plebiscite to determine the sovereignty over foreign territory. To be sure this
provision was declared unconstitutional by the U.S. Supreme Court in Afroyim v.
Rusk[16] as beyond the power given to the U.S. Congress to regulate foreign
relations. However, by filing a certificate of candidacy when he ran for his present
post, private respondent elected Philippine citizenship and in effect renounced his
American citizenship. Private respondents certificate of candidacy, filed on March
27, 1998, contained the following statements made under oath:

6. I AM A FILIPINO CITIZEN (STATE IF NATURAL-BORN OR NATURALIZED)

NATURAL-BORN
....
10.
I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN
LORENZO, CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR .
11.
COUNTRY.

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

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 petitioners contention that the oath of allegiance
contained in private respondents certificate of candidacy is insufficient to
constitute renunciation of his American citizenship.
Equally without merit is

petitioners 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.
COMELEC[18] applies mutatis mutandis to private respondent in the case at bar:
. . . Considering the fact that admittedly Osmea was both a Filipino and an
American, the mere fact that he has a Certificate stating he is an American does not
mean that he is not still a Filipino. . . . [T]he Certification that he is an American
does not mean that he is not still a Filipino, possessed as he is, of both nationalities
or citizenships.
Indeed, there is no express renunciation here of Philippine
citizenship; truth to tell, there is even no implied renunciation of said citizenship.
When We consider that the renunciation needed to lose Philippine citizenship must
be express, it stands to reason that there can be no such loss of Philippine
citizenship when there is no renunciation, either express or implied.
To recapitulate, by declaring in his certificate of candidacy that he is a Filipino
citizen; that he is not a permanent resident or immigrant of another country; that he
will defend and support the Constitution of the Philippines and bear true faith and
allegiance thereto and that he does so without mental reservation, private
respondent has, as far as the laws of this country are concerned, effectively
repudiated his American citizenship and anything which he may have said before as
a dual citizen.
On the other hand, private respondents 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,[19] we sustained the denial of entry into the country of
petitioner on the ground that, after taking his oath as a naturalized citizen, he
applied for the renewal of his Portuguese passport and declared in commercial
documents executed abroad that he was a Portuguese national. A similar sanction
can be taken against any one who, in electing Philippine citizenship, renounces his
foreign nationality, but subsequently does some act constituting renunciation of his
Philippine citizenship.
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, and Ynares-Santiago, JJ., concur.
Panganiban, and Purisima, JJ., on leave.
Pardo, J., no part.

Jacot v. Dal
/---!e-library! 6.0 Philippines Copyright 2000 by Sony Valdez---\
[2008V1340E] NESTOR A. JACOT, Petitioner, versus ROGEN T. DAL and COMMISSION
ON ELECTIONS, Respondents.2008 Nov 27En BancG.R. No. 179848D E C I S I O N
CHICO-NAZARIO, J.:
Petitioner Nestor A. Jacot assails the Resolution[1] dated 28 September 2007 of the
Commission on Elections (COMELEC) En Banc in SPA No. 07-361, affirming the
Resolution dated 12 June 2007 of the COMELEC Second Division[2] disqualifying him
from running for the position of Vice-Mayor of Catarman, Camiguin, in the 14 May
2007 National and Local Elections, on the ground that he failed to make a personal
renouncement of his United States (US) citizenship.
Petitioner was a natural born citizen of the Philippines, who became a naturalized
citizen of the US on 13 December 1989. [3]
Petitioner sought to reacquire his Philippine citizenship under Republic Act No. 9225,
otherwise known as the Citizenship Retention and Re-Acquisition Act. He filed a
request for the administration of his Oath of Allegiance to the Republic of the
Philippines with the Philippine Consulate General (PCG) of Los Angeles, California.
The Los Angeles PCG issued on 19 June 2006 an Order of Approval[4] of petitioners
request, and on the same day, petitioner took his Oath of Allegiance to the Republic
of the Philippines before Vice Consul Edward C. Yulo. [5] On 27 September 2006,
the Bureau of Immigration issued Identification Certificate No. 06-12019 recognizing
petitioner as a citizen of the Philippines.[6]
Six months after, on 26 March 2007, petitioner filed his Certificate of Candidacy for
the Position of Vice-Mayor of the Municipality of Catarman, Camiguin. [7]
On 2 May 2007, respondent Rogen T. Dal filed a Petition for Disqualification[8]
before the COMELEC Provincial Office in Camiguin against petitioner, arguing that
the latter failed to renounce his US citizenship, as required under Section 5(2) of
Republic Act No. 9225, which reads as follows:
Section 5. Civil and Political Rights and Liabilities.Those who retain or reacquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:

xxxx
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath.
In his Answer[9] dated 6 May 2007 and Position Paper[10] dated 8 May 2007,
petitioner countered that his Oath of Allegiance to the Republic of the Philippines
made before the Los Angeles PCG and the oath contained in his Certificate of
Candidacy operated as an effective renunciation of his foreign citizenship.
In the meantime, the 14 May 2007 National and Local Elections were held.
Petitioner garnered the highest number of votes for the position of Vice Mayor.
On 12 June 2007, the COMELEC Second Division finally issued its Resolution[11]
disqualifying the petitioner from running for the position of Vice-Mayor of Catarman,
Camiguin, for failure to make the requisite renunciation of his US citizenship. The
COMELEC Second Division explained that the reacquisition of Philippine citizenship
under Republic Act No. 9225 does not automatically bestow upon any person the
privilege to run for any elective public office. It additionally ruled that the filing of a
Certificate of Candidacy cannot be considered as a renunciation of foreign
citizenship. The COMELEC Second Division did not consider Valles v. COMELEC[12]
and Mercado v. Manzano[13] applicable to the instant case, since Valles and
Mercado were dual citizens since birth, unlike the petitioner who lost his Filipino
citizenship by means of naturalization. The COMELEC, thus, decreed in the
aforementioned Resolution that:
ACCORDINGLY, NESTOR ARES JACOT is DISQUALIFIED to run for the position of ViceMayor of Catarman, Camiguin for the May 14, 2007 National and Local Elections. If
proclaimed, respondent cannot thus assume the Office of Vice-Mayor of said
municipality by virtue of such disqualification.[14]
Petitioner filed a Motion for Reconsideration on 29 June 2007 reiterating his position
that his Oath of Allegiance to the Republic of the Philippines before the Los Angeles
PCG and his oath in his Certificate of Candidacy sufficed as an effective renunciation
of his US citizenship. Attached to the said Motion was an Oath of Renunciation of
Allegiance to the United States and Renunciation of Any and All Foreign Citizenship
dated 27 June 2007, wherein petitioner explicitly renounced his US citizenship.[15]
The COMELEC en banc dismissed petitioners Motion in a Resolution[16] dated 28
September 2007 for lack of merit.
Petitioner sought remedy from this Court via the present Special Civil Action for
Certiorari under Rule 65 of the Revised Rules of Court, where he presented for the
first time an Affidavit of Renunciation of Allegiance to the United States and Any
and All Foreign Citizenship[17] dated 7 February 2007. He avers that he executed
an act of renunciation of his US citizenship, separate from the Oath of Allegiance to
the Republic of the Philippines he took before the Los Angeles PCG and his filing of

his Certificate of Candidacy, thereby changing his theory of the case during the
appeal. He attributes the delay in the presentation of the affidavit to his former
counsel, Atty. Marciano Aparte, who allegedly advised him that said piece of
evidence was unnecessary but who, nevertheless, made him execute an identical
document entitled Oath of Renunciation of Allegiance to the United States and
Renunciation of Any and All Foreign Citizenship on 27 June 2007 after he had
already filed his Certificate of Candidacy.[18]
Petitioner raises the following issues for resolution of this Court:
I. WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE ABUSE OF
DISCRETION WHEN IT HELD THAT PETITIONER FAILED TO COMPLY WITH THE
PROVISIONS OF R.A. 9225, OTHERWISE KNOWN AS THE CITIZENSHIP RETENTION
AND RE-ACQUISITION ACT OF 2003, SPECIFICALLY SECTION 5(2) AS TO THE
REQUIREMENTS FOR THOSE SEEKING ELECTIVE PUBLIC OFFICE;
II. WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE ABUSE OF
DISCRETION WHEN IT HELD THAT PETITIONER FAILED TO COMPLY WITH THE
PROVISIONS OF THE COMELEC RULES OF PROCEDURE AS REGARDS THE PAYMENT
OF THE NECESSARY MOTION FEES; AND
III. WHETHER OR NOT UPHOLDING THE DECISION OF PUBLIC RESPONDENT WOULD
RESULT IN THE FRUSTRATION OF THE WILL OF THE PEOPLE OF CATARMAN,
CAMIGUIN.[19]
The Court determines that the only fundamental issue in this case is whether
petitioner is disqualified from running as a candidate in the 14 May 2007 local
elections for his failure to make a personal and sworn renunciation of his US
citizenship.
This Court finds that petitioner should indeed be disqualified.
Contrary to the assertions made by petitioner, his oath of allegiance to the Republic
of the Philippines made before the Los Angeles PCG and his Certificate of Candidacy
do not substantially comply with the requirement of a personal and sworn
renunciation of foreign citizenship because these are distinct requirements to be
complied with for different purposes.
Section 3 of Republic Act No. 9225 requires that natural-born citizens of the
Philippines, who are already naturalized citizens of a foreign country, must take the
following oath of allegiance to the Republic of the Philippines to reacquire or retain
their Philippine citizenship:
SEC. 3. Retention of Philippine Citizenship.Any provision of law to the contrary
notwithstanding, natural-born citizens of the Philippines who have lost their
Philippine citizenship by reason of their naturalization as citizens of a foreign
country are hereby deemed to have reacquired Philippine citizenship upon taking
the following oath of allegiance to the Republic:

I __________ solemnly swear (or affirm) that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal orders
promulgated by the duly constituted authorities of the Philippines; and I hereby
declare that I recognize and accept the supreme authority of the Philippines and will
maintain true faith and allegiance thereto; and that I impose this obligation upon
myself voluntarily, without mental reservation or purpose of evasion.
Natural-born citizens of the Philippines who, after the effectivity of this Act, become
citizens of a foreign country shall retain their Philippine citizenship upon taking the
aforesaid oath.
By the oath dictated in the afore-quoted provision, the Filipino swears allegiance to
the Philippines, but there is nothing therein on his renunciation of foreign
citizenship. Precisely, a situation might arise under Republic Act No. 9225 wherein
said Filipino has dual citizenship by also reacquiring or retaining his Philippine
citizenship, despite his foreign citizenship.
The afore-quoted oath of allegiance is substantially similar to the one contained in
the Certificate of Candidacy which must be executed by any person who wishes to
run for public office in Philippine elections. Such an oath reads:
I am eligible for the office I seek to be elected. I will support and defend the
Constitution of the Philippines and will maintain true faith and allegiance thereto;
that I will obey the laws, legal orders and decrees promulgated by the duly
constituted authorities of the Republic of the Philippines; and that I impose this
obligation upon myself voluntarily, without mental reservation or purpose of
evasion. I hereby certify that the facts stated herein are true and correct of my own
personal knowledge.
Now, Section 5(2) of Republic Act No. 9225 specifically provides that:
Section 5. Civil and Political Rights and Liabilities.Those who retain or reacquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:
xxxx
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath.
The law categorically requires persons seeking elective public office, who either
retained their Philippine citizenship or those who reacquired it, to make a personal
and sworn renunciation of any and all foreign citizenship before a public officer
authorized to administer an oath simultaneous with or before the filing of the
certificate of candidacy.[20]

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

They are trying to make him renounce his citizenship thinking that

CHAIRMAN DRILON. His American citizenship.

REP. JAVIER. To discourage him from running?
CHAIRMAN DRILON. No.

REP. A.D. DEFENSOR. No. When he runs he will only have one citizenship. When he
runs for office, he will have only one. (Emphasis ours.)
There is little doubt, therefore, that the intent of the legislators was not only for
Filipinos reacquiring or retaining their Philippine citizenship under Republic Act No.
9225 to take their oath of allegiance to the Republic of the Philippines, but also to
explicitly renounce their foreign citizenship if they wish to run for elective posts in
the Philippines. To qualify as a candidate in Philippine elections, Filipinos must only
have one citizenship, namely, Philippine citizenship.
By the same token, the oath of allegiance contained in the Certificate of Candidacy,
which is substantially similar to the one contained in Section 3 of Republic Act No.
9225, does not constitute the personal and sworn renunciation sought under
Section 5(2) of Republic Act No. 9225. It bears to emphasize that the said oath of
allegiance is a general requirement for all those who wish to run as candidates in
Philippine elections; while the renunciation of foreign citizenship is an additional
requisite only for those who have retained or reacquired Philippine citizenship under
Republic Act No. 9225 and who seek elective public posts, considering their special
circumstance of having more than one citizenship.
Petitioner erroneously invokes the doctrine in Valles[21] and Mercado,[22] wherein
the filing by a person with dual citizenship of a certificate of candidacy, containing
an oath of allegiance, was already considered a renunciation of foreign citizenship.
The ruling of this Court in Valles and Mercado is not applicable to the present case,
which is now specially governed by Republic Act No. 9225, promulgated on 29
August 2003.
In Mercado, which was cited in Valles, the disqualification of therein private
respondent Manzano was sought under another law, Section 40(d) of the Local
Government Code, which reads:
SECTION 40. Disqualifications. The following persons are disqualified from running
for any elective local position:
xxxx
(d) Those with dual citizenship.
The Court in the aforesaid cases sought to define the term dual citizenship vis-vis the concept of dual allegiance. At the time this Court decided the cases of
Valles and Mercado on 26 May 1999 and 9 August 2000, respectively, the more
explicitly worded requirements of Section 5(2) of Republic Act No. 9225 were not yet
enacted by our legislature.[23]
Lopez v. Commission on Elections[24] is the more fitting precedent for this case
since they both share the same factual milieu. In Lopez, therein petitioner Lopez
was a natural-born Filipino who lost his Philippine citizenship after he became a
naturalized US citizen. He later reacquired his Philippine citizenship by virtue of
Republic Act No. 9225. Thereafter, Lopez filed his candidacy for a local elective
position, but failed to make a personal and sworn renunciation of his foreign

citizenship. This Court unequivocally declared that despite having garnered the
highest number of votes in the election, Lopez is nonetheless disqualified as a
candidate for a local elective position due to his failure to comply with the
requirements of Section 5(2) of Republic Act No. 9225.
Petitioner presents before this Court for the first time, in the instant Petition for
Certiorari, an Affidavit of Renunciation of Allegiance to the United States and Any
and All Foreign Citizenship,[25] which he supposedly executed on 7 February 2007,
even before he filed his Certificate of Candidacy on 26 March 2007. With the said
Affidavit, petitioner puts forward in the Petition at bar a new theory of his casethat
he complied with the requirement of making a personal and sworn renunciation of
his foreign citizenship before filing his Certificate of Candidacy. This new theory
constitutes a radical change from the earlier position he took before the COMELEC
that he complied with the requirement of renunciation by his oaths of allegiance to
the Republic of the Philippines made before the Los Angeles PCG and in his
Certificate of Candidacy, and that there was no more need for a separate act of
renunciation.
As a rule, no question will be entertained on appeal unless it has been raised in the
proceedings below. Points of law, theories, issues and arguments not brought to the
attention of the lower court, administrative agency or quasi-judicial body need not
be considered by a reviewing court, as they cannot be raised for the first time at
that late stage. Basic considerations of fairness and due process impel this rule.[26]
Courts have neither the time nor the resources to accommodate parties who chose
to go to trial haphazardly.[27]
Likewise, this Court does not countenance the late submission of evidence.[28]
Petitioner should have offered the Affidavit dated 7 February 2007 during the
proceedings before the COMELEC.
Section 1 of Rule 43 of the COMELEC Rules of Procedure provides that In the
absence of any applicable provisions of these Rules, the pertinent provisions of the
Rules of Court in the Philippines shall be applicable by analogy or in suppletory
character and effect. Section 34 of Rule 132 of the Revised Rules of Court
categorically enjoins the admission of evidence not formally presented:
SEC. 34. Offer of evidence. - The court shall consider no evidence which has not
been formally offered. The purpose for which the evidence is offered must be
specified.
Since the said Affidavit was not formally offered before the COMELEC, respondent
had no opportunity to examine and controvert it. To admit this document would be
contrary to due process. [29] Additionally, the piecemeal presentation of evidence
is not in accord with orderly justice.[30]
The Court further notes that petitioner had already presented before the COMELEC
an identical document, Oath of Renunciation of Allegiance to the United States and
Renunciation of Any and All Foreign Citizenship executed on 27 June 2007,
subsequent to his filing of his Certificate of Candidacy on 26 March 2007. Petitioner
attached the said Oath of 27 June 2007 to his Motion for Reconsideration with the

COMELEC en banc. The COMELEC en banc eventually refused to reconsider said

document for being belatedly executed. What was extremely perplexing, not to
mention suspect, was that petitioner did not submit the Affidavit of 7 February 2007
or mention it at all in the proceedings before the COMELEC, considering that it could
have easily won his case if it was actually executed on and in existence before the
filing of his Certificate of Candidacy, in compliance with law.
The justification offered by petitioner, that his counsel had advised him against
presenting this crucial piece of evidence, is lame and unconvincing. If the Affidavit
of 7 February 2007 was in existence all along, petitioners counsel, and even
petitioner himself, could have easily adduced it to be a crucial piece of evidence to
prove compliance with the requirements of Section 5(2) of Republic Act No. 9225.
There was no apparent danger for petitioner to submit as much evidence as
possible in support of his case, than the risk of presenting too little for which he
could lose.
And even if it were true, petitioners excuse for the late presentation of the Affidavit
of 7 February 2007 will not change the outcome of petitioners case.
It is a well-settled rule that a client is bound by his counsels conduct, negligence,
and mistakes in handling the case, and the client cannot be heard to complain that
the result might have been different had his lawyer proceeded differently.[31] The
only exceptions to the general rule -- that a client is bound by the mistakes of his
counsel -- which this Court finds acceptable are when the reckless or gross
negligence of counsel deprives the client of due process of law, or when the
application of the rule results in the outright deprivation of ones property through
a technicality.[32] These exceptions are not attendant in this case.
The Court cannot sustain petitioners averment that his counsel was grossly
negligent in deciding against the presentation of the Affidavit of 7 February 2007
during the proceedings before the COMELEC. Mistakes of attorneys as to the
competency of a witness; the sufficiency, relevancy or irrelevancy of certain
evidence; the proper defense or the burden of proof, failure to introduce evidence,
to summon witnesses and to argue the case -- unless they prejudice the client and
prevent him from properly presenting his case -- do not constitute gross
incompetence or negligence, such that clients may no longer be bound by the acts
of their counsel.[33]
Also belying petitioners claim that his former counsel was grossly negligent was the
fact that petitioner continuously used his former counsels theory of the case. Even
when the COMELEC already rendered an adverse decision, he persistently argues
even to this Court that his oaths of allegiance to the Republic of the Philippines
before the Los Angeles PCG and in his Certificate of Candidacy amount to the
renunciation of foreign citizenship which the law requires. Having asserted the
same defense in the instant Petition, petitioner only demonstrates his continued
reliance on and complete belief in the position taken by his former counsel, despite
the formers incongruous allegations that the latter has been grossly negligent.
Petitioner himself is also guilty of negligence. If indeed he believed that his counsel
was inept, petitioner should have promptly taken action, such as discharging his

counsel earlier and/or insisting on the submission of his Affidavit of 7 February 2007
to the COMELEC, instead of waiting until a decision was rendered disqualifying him
and a resolution issued dismissing his motion for reconsideration; and, thereupon,
he could have heaped the blame on his former counsel. Petitioner could not be so
easily allowed to escape the consequences of his former counsels acts, because,
otherwise, it would render court proceedings indefinite, tentative, and subject to
reopening at any time by the mere subterfuge of replacing counsel. [34]
Petitioner cites De Guzman v. Sandiganbayan,[35] where therein petitioner De
Guzman was unable to present a piece of evidence because his lawyer proceeded to
file a demurrer to evidence, despite the Sandiganbayans denial of his prior leave to
do so. The wrongful insistence of the lawyer in filing a demurrer to evidence had
totally deprived De Guzman of any chance to present documentary evidence in his
defense. This was certainly not the case in the Petition at bar.
Herein, petitioner was in no way deprived of due process. His counsel actively
defended his suit by attending the hearings, filing the pleadings, and presenting
evidence on petitioners behalf. Moreover, petitioners cause was not defeated by a
mere technicality, but because of a mistaken reliance on a doctrine which is not
applicable to his case. A case lost due to an untenable legal position does not
justify a deviation from the rule that clients are bound by the acts and mistakes of
their counsel.[36]
Petitioner also makes much of the fact that he received the highest number of votes
for the position of Vice-Mayor of Catarman during the 2007 local elections. The fact
that a candidate, who must comply with the election requirements applicable to
dual citizens and failed to do so, received the highest number of votes for an
elective position does not dispense with, or amount to a waiver of, such
requirement.[37] The will of the people as expressed through the ballot cannot cure
the vice of ineligibility, especially if they mistakenly believed that the candidate was
qualified.
The rules on citizenship qualifications of a candidate must be strictly
applied. If a person seeks to serve the Republic of the Philippines, he must owe his
loyalty to this country only, abjuring and renouncing all fealty and fidelity to any
other state.[38] The application of the constitutional and statutory provisions on
disqualification is not a matter of popularity.[39]
WHEREFORE, the instant appeal is DISMISSED. The Resolution dated 28 September
2007 of the COMELEC en banc in SPA No. 07-361, affirming the Resolution dated 12
June 2007 of the COMELEC Second Division, is AFFIRMED.
Petitioner is
DISQUALIFIED to run for the position of Vice-Mayor of Catarman, Camiguin in the 14
May 2007 National and Local Elections, and if proclaimed, cannot assume the Office
of Vice-Mayor of said municipality by virtue of such disqualification. Costs against
petitioner.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice

Cordora v. Comelec

EN BANC
GAUDENCIO M. CORDORA,
Petitioner,
G.R. No. 176947
Present:
PUNO, C.J.,

- versus TINGA,**
CHICO-NAZARIO,
VELASCO, JR.,***
NACHURA,
LEONARDO-DE CASTRO,
BRION, and
PERALTA, JJ.

QUISUMBING,
YNARES-SANTIAGO,*
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,

COMMISSION ON ELECTIONS
Promulgated:
and GUSTAVO S. TAMBUNTING,
Respondents.
February 19, 2009
x-------------------------------------------------- x
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari and mandamus, with prayer for the issuance of
a temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure.
In EO Case No. 05-17, Gaudencio M. Cordora (Cordora) accused Gustavo S.
Tambunting (Tambunting) of an election offense for violating Section 74 in relation
to Section 262 of the Omnibus Election Code. The Commission on Elections
(COMELEC) En Banc dismissed Cordoras complaint in a Resolution[1] dated 18
August 2006. The present petition seeks to reverse the 18 August 2006 Resolution
as well as the Resolution[2] dated 20 February 2007 of the COMELEC En Banc which
denied Cordoras motion for reconsideration.

The Facts
In his complaint affidavit filed before the COMELEC Law Department, Cordora
asserted that Tambunting made false assertions in the following items:
That Annex A [Tambuntings Certificate of Candidacy for the 2001 elections]
and Annex B [Tambuntings Certificate of Candidacy for the 2004 elections] state,
among others, as follows, particularly Nos. 6, 9 and 12 thereof:
1. No. 6 I am a Natural Born/Filipino Citizen
2. No. 9 No. of years of Residence before May 14, 2001.
36 in the Philippines and 25 in the Constituency where I seek to
be elected;
3. No. 12 I am ELIGIBLE for the office I seek to be elected.[3] (Boldface
and capitalization in the original)

Cordora stated that Tambunting was not eligible to run for local public office
because Tambunting lacked the required citizenship and residency requirements.
To disprove Tambuntings claim of being a natural-born Filipino citizen,
Cordora presented a certification from the Bureau of Immigration which stated that,
in two instances, Tambunting claimed that he is an American: upon arrival in the
Philippines on 16 December 2000 and upon departure from the Philippines on 17
June 2001. According to Cordora, these travel dates confirmed that Tambunting
acquired American citizenship through naturalization in Honolulu, Hawaii on 2
December 2000. Cordora concluded:
That Councilor Gustavo S. Tambunting contrary to the provision of Sec 74
(OEC): [sic] Re: CONTENTS OF CERTIFICATE OF CANDIDACY: which requires the
declarant/affiant to state, among others, under oath, that he is a Filipino (No. 6), No.
9- residence requirement which he lost when [he was] naturalized as an American
Citizen on December 2, 2000 at [sic] Honolulu, Hawaii, knowingly and willfully
affirmed and reiterated that he possesses the above basic requirements under No.
12 that he is indeed eligible for the office to which he seeks to be elected, when in
truth and in fact, the contrary is indubitably established by his own statements
before the Philippine Bureau of Immigration x x x.[4] (Emphases in the original)
Tambunting, on the other hand, maintained that he did not make any
misrepresentation in his certificates of candidacy. To refute Cordoras claim that
Tambunting is not a natural-born Filipino, Tambunting presented a copy of his birth
certificate which showed that he was born of a Filipino mother and an American
father. Tambunting further denied that he was naturalized as an American citizen.
The certificate of citizenship conferred by the US government after Tambuntings
father petitioned him through INS Form I-130 (Petition for Relative) merely
confirmed Tambuntings citizenship which he acquired at birth. Tambuntings
possession of an American passport did not mean that Tambunting is not a Filipino
citizen. Tambunting also took an oath of allegiance on 18 November 2003 pursuant

to Republic Act No. 9225 (R.A. No. 9225), or the Citizenship Retention and
Reacquisition Act of 2003.
Tambunting further stated that he has resided in the Philippines since birth.
Tambunting has imbibed the Filipino culture, has spoken the Filipino language, and
has been educated in Filipino schools. Tambunting maintained that proof of his
loyalty and devotion to the Philippines was shown by his service as councilor of
Paraaque.
To refute Cordoras claim that the number
Tambuntings certificates of candidacy is false
residency because of his naturalization as an
contended that the residency requirement is not the

of years of residency stated in

because Tambunting lost his
American citizen, Tambunting
same as citizenship.

The Ruling of the COMELEC Law Department

The COMELEC Law Department recommended the dismissal of Cordoras
complaint against Tambunting because Cordora failed to substantiate his charges
against Tambunting. Cordoras reliance on the certification of the Bureau of
Immigration that Tambunting traveled on an American passport is not sufficient to
prove that Tambunting is an American citizen.
The Ruling of the COMELEC En Banc
The COMELEC En Banc affirmed the findings and the resolution of the
COMELEC Law Department. The COMELEC En Banc was convinced that Cordora
failed to support his accusation against Tambunting by sufficient and convincing
evidence.
The dispositive portion of the COMELEC En Bancs Resolution reads as follows:
WHEREFORE, premises considered, the instant complaint is hereby
DISMISSED for insufficiency of evidence to establish probable cause.
SO ORDERED.[5]
Commissioner Rene V. Sarmiento (Commissioner Sarmiento) wrote a separate
opinion which concurred with the findings of the En Banc Resolution. Commissioner
Sarmiento pointed out that Tambunting could be considered a dual citizen.
Moreover, Tambunting effectively renounced his American citizenship when he filed
his certificates of candidacy in 2001 and 2004 and ran for public office.
Cordora filed a motion for reconsideration which raised the same grounds and
the same arguments in his complaint. In its Resolution promulgated on 20 February
2007, the COMELEC En Banc dismissed Cordoras motion for reconsideration for lack
of merit.

The Issue
Cordora submits that the COMELEC acted with grave abuse of discretion
amounting to lack or excess of jurisdiction when it declared that there is no
sufficient evidence to support probable cause that may warrant the prosecution of
Tambunting for an election offense.
Cordoras petition is not an action to disqualify Tambunting because of
Tambuntings failure to meet citizenship and residency requirements. Neither is the
present petition an action to declare Tambunting a non-Filipino and a non-resident.
The present petition seeks to prosecute Tambunting for knowingly making untruthful
statements in his certificates of candidacy.
The Ruling of the Court
The petition has no merit. We affirm the ruling of the COMELEC En Banc.
Whether there is Probable Cause to Hold Tambunting for Trial
for Having Committed an Election Offense
There was no grave abuse of discretion in the COMELEC En Bancs ruling that
there is no sufficient and convincing evidence to support a finding of probable cause
to hold Tambunting for trial for violation of Section 74 in relation to Section 262 of
the Omnibus Election Code.
Probable cause constitutes those facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been
committed. Determining probable cause is an intellectual activity premised on the
prior physical presentation or submission of documentary or testimonial proofs
either confirming, negating or qualifying the allegations in the complaint.[6]
Section 74 of the Omnibus Election Code reads as follows:
Contents of certificate of candidacy. The certificate of candidacy shall
state that the person filing it is announcing his candidacy for the office stated
therein and that he is eligible for said office; x x x the political party to which he
belongs; civil status; his date of birth; residence; his post office address for all
election purposes; his profession or occupation; that he will support and defend the
Constitution of the Philippines and will maintain true faith and allegiance thereto;
that he will obey the laws, legal orders and decrees promulgated by the duly
constituted authorities; that he is not a permanent resident or immigrant to a
foreign country; that the obligation imposed by his oath is assumed voluntarily,
without mental reservation or purpose of evasion; and that the facts stated in the
certificate of candidacy are true to the best of his knowledge.
xxx

The person filing a certificate of candidacy shall also affix his latest
photograph, passport size; a statement in duplicate containing his bio-data and
program of government not exceeding one hundred words, if he so desires.
Section 262 of the Omnibus Election Code, on the other hand, provides that
violation of Section 74, among other sections in the Code, shall constitute an
election offense.
Tambuntings Dual Citizenship
Tambunting does not deny that he is born of a Filipino mother and an
American father. Neither does he deny that he underwent the process involved in
INS Form I-130 (Petition for Relative) because of his fathers citizenship. Tambunting
claims that because of his parents differing citizenships, he is both Filipino and
American by birth. Cordora, on the other hand, insists that Tambunting is a
naturalized American citizen.
We agree with Commissioner Sarmientos observation that Tambunting
possesses dual citizenship. Because of the circumstances of his birth, it was no
longer necessary for Tambunting to undergo the naturalization process to acquire
American citizenship. The process involved in INS Form I-130 only served to confirm
the American citizenship which Tambunting acquired at birth. The certification from
the Bureau of Immigration which Cordora presented contained two trips where
Tambunting claimed that he is an American. However, the same certification
showed nine other trips where Tambunting claimed that he is Filipino.
Clearly,
Tambunting possessed dual citizenship prior to the filing of his certificate of
candidacy before the 2001 elections. The fact that Tambunting had dual citizenship
did not disqualify him from running for public office.[7]
Requirements for dual citizens from birth
who desire to run for public office
We deem it necessary to reiterate our previous ruling in Mercado v. Manzano,
wherein we ruled that dual citizenship is not a ground for disqualification from
running for any elective local position.
To begin with, dual citizenship is different from dual allegiance. The former
arises when, as a result of the concurrent application of the different laws of two or
more states, a person is simultaneously considered a national by the said states.
For instance, such a situation may arise when a person whose parents are citizens
of a state which adheres to the principle of jus sanguinis is born in a state which
follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary
act on his part, is concurrently considered a citizen of both states. Considering the
citizenship clause (Art. IV) of our Constitution, it is possible for the following classes
of citizens of the Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries which
follow the principle of jus soli;

(2) Those born in the Philippines of Filipino mothers and alien fathers if by
the laws of their fathers country such children are citizens of that country;
(3) Those who marry aliens if by the laws of the latters 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 individuals
volition.
xxx
[I]n including 5 in Article IV on citizenship, the concern of the Constitutional
Commission was not with dual citizens per se but with naturalized citizens who
maintain their allegiance to their countries of origin even after their naturalization.
Hence, the phrase dual citizenship in R.A. No. 7160, 40(d) and 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.
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.
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
Gentlemans example, if he does not renounce his other citizenship, then he is
opening himself to question. So, if he is really interested to run, the first thing he
should do is to say in the Certificate of Candidacy that: I am a Filipino citizen, and I
have only one citizenship.
SENATOR ENRILE. But we are talking from the viewpoint of Philippine law,
Mr. President. He will always have one citizenship, and that is the citizenship
invested upon him or her in the Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts
that will prove that he also acknowledges other citizenships, then he will probably
fall under this disqualification.[8] (Emphasis supplied)
We have to consider the present case in consonance with our rulings in
Mercado v. Manzano,[9] Valles v. COMELEC,[10] and AASJS v. Datumanong.[11]
Mercado and Valles involve similar operative facts as the present case. Manzano
and Valles, like Tambunting, possessed dual citizenship by the circumstances of
their birth. Manzano was born to Filipino parents in the United States which follows
the doctrine of jus soli. Valles was born to an Australian mother and a Filipino father
in Australia. Our rulings in Manzano and Valles stated that dual citizenship is
different from dual allegiance both by cause and, for those desiring to run for public
office, by effect. Dual citizenship is involuntary and arises when, as a result of the
concurrent application of the different laws of two or more states, a person is
simultaneously considered a national by the said states. Thus, like any other
natural-born Filipino, it is enough for a person with dual citizenship who seeks public
office to file his certificate of candidacy and swear to the oath of allegiance
contained therein. Dual allegiance, on the other hand, is brought about by the

individuals active participation in the naturalization process. AASJS states that,

under R.A. No. 9225, a Filipino who becomes a naturalized citizen of another country
is allowed to retain his Filipino citizenship by swearing to the supreme authority of
the Republic of the Philippines. The act of taking an oath of allegiance is an implicit
renunciation of a naturalized citizens foreign citizenship.
R.A. No. 9225, or the Citizenship Retention and Reacquisition Act of 2003, was
enacted years after the promulgation of Manzano and Valles. The oath found in
Section 3 of R.A. No. 9225 reads as follows:
I __________ , solemnly swear (or affirm) that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal orders
promulgated by the duly constituted authorities of the Philippines; and I hereby
declare that I recognize and accept the supreme authority of the Philippines and will
maintain true faith and allegiance thereto; and that I impose this obligation upon
myself voluntarily without mental reservation or purpose of evasion.
In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with
dual citizenship per se, but with the status of naturalized citizens who maintain their
allegiance to their countries of origin even after their naturalization.[12] Section
5(3) of R.A. No. 9225 states that naturalized citizens who reacquire Filipino
citizenship and desire to run for elective public office in the Philippines shall meet
the qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of filing the certificate of candidacy, make a personal
and sworn renunciation of any and all foreign citizenship before any public officer
authorized to administer an oath aside from the oath of allegiance prescribed in
Section 3 of R.A. No. 9225.
The twin requirements of swearing to an Oath of
Allegiance and executing a Renunciation of Foreign Citizenship served as the bases
for our recent rulings in Jacot v. Dal and COMELEC,[13] Velasco v. COMELEC,[14] and
Japzon v. COMELEC,[15] all of which involve natural-born Filipinos who later became
naturalized citizens of another country and thereafter ran for elective office in the
Philippines. In the present case, Tambunting, a natural-born Filipino, did not
subsequently become a naturalized citizen of another country. Hence, the twin
requirements in R.A. No. 9225 do not apply to him.
Tambuntings residency
Cordora concluded that Tambunting failed to meet the residency requirement
because of Tambuntings naturalization as an American. Cordoras reasoning fails
because Tambunting is not a naturalized American. Moreover, residency, for the
purpose of election laws, includes the twin elements of the fact of residing in a fixed
place and the intention to return there permanently,[16] and is not dependent upon
citizenship.
In view of the above, we hold that Cordora failed to establish that Tambunting
indeed willfully made false entries in his certificates of candidacy. On the contrary,
Tambunting sufficiently proved his innocence of the charge filed against him.
Tambunting is eligible for the office which he sought to be elected and fulfilled the
citizenship and residency requirements prescribed by law.

WHEREFORE, we DISMISS the petition. We AFFIRM the Resolutions of the

Commission on Elections En Banc dated 18 August 2006 and 20 February 2007 in
EO Case No. 05-17.
SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

Caasi v. Comelec
G.R. No. 88831
November 8, 1990
MATEO CAASI, petitioner,
vs.
THE HON. COURT OF APPEALS and MERITO C. MIGUEL, respondents.
G.R. No. 84508

November 13, 1990

ANECITO CASCANTE petitioner,

vs.
THE COMMISSION ON ELECTIONS and MERITO C. MIGUEL, respondents.
Ireneo B. Orlino for petitioner in G.R. Nos. 88831 & 84508.
Montemayor & Montemayor Law Office for private respondent.

GRIO-AQUINO, J.:
These two cases were consolidated because they have the same objective; the
disqualification under Section 68 of the Omnibus Election Code of the private
respondent, Merito Miguel for the position of municipal mayor of Bolinao,
Pangasinan, to which he was elected in the local elections of January 18, 1988, on
the ground that he is a green card holder, hence, a permanent resident of the
United States of America, not of Bolinao.
G.R. No. 84508 is a petition for review on certiorari of the decision dated January 13,
1988 of the COMELEC First Division, dismissing the three (3) petitions of Anecito
Cascante (SPC No. 87-551), Cederico Catabay (SPC No. 87-595) and Josefino C.
Celeste (SPC No. 87-604), for the disqualification of Merito C. Miguel filed prior to
the local elections on January 18, 1988.

G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petition for review of
the decision dated June 21, 1989, of the Court of Appeals in CA-G.R. SP No. 14531
dismissing the petition for quo warranto filed by Mateo Caasi, a rival candidate for
the position of municipal mayor of Bolinao, Pangasinan, also to disqualify Merito
Miguel on account of his being a green card holder.
In his answer to both petitions, Miguel admitted that he holds a green card issued to
him by the US Immigration Service, but he denied that he is a permanent resident
of the United States. He allegedly obtained the green card for convenience in order
that he may freely enter the United States for his periodic medical examination and
to visit his children there. He alleged that he is a permanent resident of Bolinao,
Pangasinan, that he voted in all previous elections, including the plebiscite on
February 2,1987 for the ratification of the 1987 Constitution, and the congressional
elections on May 18,1987.
After hearing the consolidated petitions before it, the COMELEC with the exception
of Commissioner Anacleto Badoy, Jr., dismissed the petitions on the ground that:
The possession of a green card by the respondent (Miguel) does not sufficiently
establish that he has abandoned his residence in the Philippines. On the contrary,
inspite (sic) of his green card, Respondent has sufficiently indicated his intention to
continuously reside in Bolinao as shown by his having voted in successive elections
in said municipality. As the respondent meets the basic requirements of citizenship
and residence for candidates to elective local officials (sic) as provided for in Section
42 of the Local Government Code, there is no legal obstacle to his candidacy for
mayor of Bolinao, Pangasinan. (p. 12, Rollo, G.R. No. 84508).
In his dissenting opinion, Commissioner Badoy, Jr. opined that:
A green card holder being a permanent resident of or an immigrant of a foreign
country and respondent having admitted that he is a green card holder, it is
incumbent upon him, under Section 68 of the Omnibus Election Code, to prove that
he "has waived his status as a permanent resident or immigrant" to be qualified to
run for elected office. This respondent has not done. (p. 13, Rollo, G.R. No. 84508.)
In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court of Appeals and Merito Miguel,
respondents," the petitioner prays for a review of the decision dated June 21, 1989
of the Court of Appeals in CA-G.R. SP No. 14531 "Merito C. Miguel, petitioner vs.
Hon. Artemio R. Corpus, etc., respondents," reversing the decision of the Regional
Trial Court which denied Miguel's motion to dismiss the petition for quo warranto
filed by Caasi. The Court of Appeals ordered the regional trial court to dismiss and
desist from further proceeding in the quo warranto case. The Court of Appeals held:
... it is pointless for the Regional Trial Court to hear the case questioning the
qualification of the petitioner as resident of the Philippines, after the COMELEC has
ruled that the petitioner meets the very basic requirements of citizenship and
residence for candidates to elective local officials (sic) and that there is no legal
obstacles (sic) for the candidacy of the petitioner, considering that decisions of the
Regional Trial Courts on quo warranto cases under the Election Code are appealable
to the COMELEC. (p. 22, Rollo, G.R. No. 88831.)

These two cases pose the twin issues of: (1) whether or not a green card is proof
that the holder is a permanent resident of the United States, and (2) whether
respondent Miguel had waived his status as a permanent resident of or immigrant
to the U.S.A. prior to the local elections on January 18, 1988.
Section 18, Article XI of the 1987 Constitution provides:
Sec. 18.
Public officers and employees owe the State and this Constitution
allegiance at all times, and any public officer or employee who seeks to change his
citizenship or acquire the status of an immigrant of another country during his
tenure shall be dealt with by law.
In the same vein, but not quite, Section 68 of the Omnibus Election Code of the
Philippines (B.P. Blg. 881) provides:
SEC. 68.
Disqualifications ... Any person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified to run for any elective office
under this Code, unless said person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence requirement
provided for in the election laws. (Sec. 25, 1971, EC).
In view of current rumor that a good number of elective and appointive public
officials in the present administration of President Corazon C. Aquino are holders of
green cards in foreign countries, their effect on the holders' right to hold elective
public office in the Philippines is a question that excites much interest in the
outcome of this case.
In the case of Merito Miguel, the Court deems it significant that in the "Application
for Immigrant Visa and Alien Registration" (Optional Form No. 230, Department of
State) which Miguel filled up in his own handwriting and submitted to the US
Embassy in Manila before his departure for the United States in 1984, Miguel's
answer to Question No. 21 therein regarding his "Length of intended stay (if
permanently, so state)," Miguel's answer was, "Permanently."
On its face, the green card that was subsequently issued by the United States
Department of Justice and Immigration and Registration Service to the respondent
Merito C. Miguel identifies him in clear bold letters as a RESIDENT ALIEN. On the
back of the card, the upper portion, the following information is printed:
Alien Registration Receipt Card.
Person identified by this card is entitled to reside permanently and work in the
United States." (Annex A pp. 189-190, Rollo of G.R. No. 84508.)
Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984
constituted an abandonment of his domicile and residence in the Philippines. For he
did not go to the United States merely to visit his children or his doctor there; he
entered the limited States with the intention to have there permanently as
evidenced by his application for an immigrant's (not a visitor's or tourist's) visa.

Based on that application of his, he was issued by the U.S. Government the
requisite green card or authority to reside there permanently.
Immigration is the removing into one place from another; the act of immigrating the
entering into a country with the intention of residing in it.
An immigrant is a person who removes into a country for the purpose of permanent
residence. As shown infra 84, however, statutes sometimes give a broader meaning
to the term "immigrant." (3 CJS 674.)
As a resident alien in the U.S., Miguel owes temporary and local allegiance to the
U.S., the country in which he resides (3 CJS 527). This is in return for the protection
given to him during the period of his residence therein.
Aliens reading in the limited States, while they are permitted to remain, are in
general entitled to the protection of the laws with regard to their rights of person
and property and to their civil and criminal responsibility.
In general, aliens residing in the United States, while they are permitted to remain
are entitled to the safeguards of the constitution with regard to their rights of
person and property and to their civil and criminal responsibility. Thus resident alien
friends are entitled to the benefit of the provision of the Fourteenth Amendment to
the federal constitution that no state shall deprive "any person" of life liberty, or
property without due process of law, or deny to any person the equal protection of
the law, and the protection of this amendment extends to the right to earn a
livelihood by following the ordinary occupations of life. So an alien is entitled to the
protection of the provision of the Fifth Amendment to the federal constitution that
no person shall be deprived of life, liberty, or property without due process of law. (3
CJS 529-530.)
Section 18, Article XI of the 1987 Constitution which provides that "any public
officer or employee who seeks to change his citizenship or acquire the status of an
immigrant of another country during his tenure shall be dealt with by law" is not
applicable to Merito Miguel for he acquired the status of an immigrant of the United
States before he was elected to public office, not "during his tenure" as mayor of
Bolinao, Pangasinan.
The law applicable to him is Section 68 of the Omnibus Election Code (B.P. Blg. 881),
which provides:
xxx

xxx

xxx

Any person who is a permanent resident of or an immigrant to a foreign country

shall not be qualified to run for any elective office under this Code, unless such
person has waived his status as permanent resident or immigrant of a foreign
country in accordance with the residence requirement provided for in the election
laws.'

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

Miguel's application for immigrant status and permanent residence in the U.S. and
his possession of a green card attesting to such status are conclusive proof that he
is a permanent resident of the U.S. despite his occasional visits to the Philippines.
The waiver of such immigrant status should be as indubitable as his application for
it. Absent clear evidence that he made an irrevocable waiver of that status or that
he surrendered his green card to the appropriate U.S. authorities before he ran for
mayor of Bolinao in the local elections on January 18, 1988, our conclusion is that
he was disqualified to run for said public office, hence, his election thereto was null
and void.
WHEREFORE, the appealed orders of the COMELEC and the Court of Appeals in SPC
Nos. 87-551, 87-595 and 87-604, and CA-G.R. SP No. 14531 respectively, are hereby
set aside. The election of respondent Merito C. Miguel as municipal mayor of
Bolinao, Pangasinan is hereby annulled. Costs against the said respondent.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla,
Bidin, Sarmiento, Medialdea and Regalado, JJ., concur.
Feliciano, J., is on leave.
Marcos v. Comelec
G.R. No. 119976
September 18, 1995
IMELDA ROMUALDEZ-MARCOS, petitioner,
vs.
COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

KAPUNAN, J.:
A constitutional provision should be construed as to give it effective operation and
suppress the mischief at which it is aimed. 1 The 1987 Constitution mandates that
an aspirant for election to the House of Representatives be "a registered voter in
the district in which he shall be elected, and a resident thereof for a period of not
less than one year immediately preceding the election." 2 The mischief which this
provision reproduced verbatim from the 1973 Constitution seeks to prevent is
the possibility of a "stranger or newcomer unacquainted with the conditions and
needs of a community and not identified with the latter, from an elective office to
serve that community." 3
Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the
position of Representative of the First District of Leyte with the Provincial Election
Supervisor on March 8, 1995, providing the following information in item no. 8: 4
RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION: __________ Years and seven Months.

On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent
Representative of the First District of Leyte and a candidate for the same position,
filed a "Petition for Cancellation and Disqualification" 5 with the Commission on
Elections alleging that petitioner did not meet the constitutional requirement for
residency. In his petition, private respondent contended that Mrs. Marcos lacked the
Constitution's one year residency requirement for candidates for the House of
Representatives on the evidence of declarations made by her in Voter Registration
Record 94-No. 3349772 6 and in her Certificate of Candidacy. He prayed that "an
order be issued declaring (petitioner) disqualified and canceling the certificate of
candidacy." 7
On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy,
changing the entry "seven" months to "since childhood" in item no. 8 of the
amended certificate. 8 On the same day, the Provincial Election Supervisor of Leyte
informed petitioner that:
[T]his office cannot receive or accept the aforementioned Certificate of Candidacy
on the ground that it is filed out of time, the deadline for the filing of the same
having already lapsed on March 20, 1995. The Corrected/Amended Certificate of
Candidacy should have been filed on or before the March 20, 1995 deadline. 9
Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with
the COMELEC's Head Office in Intramuros, Manila on
March 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was
likewise filed with the head office on the same day. In said Answer, petitioner
averred that the entry of the word "seven" in her original Certificate of Candidacy
was the result of an "honest misinterpretation" 10 which she sought to rectify by
adding the words "since childhood" in her Amended/Corrected Certificate of
Candidacy and that "she has always maintained Tacloban City as her domicile or
residence. 11 Impugning respondent's motive in filing the petition seeking her
disqualification, she noted that:
When respondent (petitioner herein) announced that she was intending to register
as a voter in Tacloban City and run for Congress in the First District of Leyte,
petitioner immediately opposed her intended registration by writing a letter stating
that "she is not a resident of said city but of Barangay Olot, Tolosa, Leyte. After
respondent had registered as a voter in Tolosa following completion of her six month
actual residence therein, petitioner filed a petition with the COMELEC to transfer the
town of Tolosa from the First District to the Second District and pursued such a
move up to the Supreme Court, his purpose being to remove respondent as
petitioner's opponent in the congressional election in the First District. He also filed
a bill, along with other Leyte Congressmen, seeking the creation of another
legislative district to remove the town of Tolosa out of the First District, to achieve
his purpose. However, such bill did not pass the Senate. Having failed on such
moves, petitioner now filed the instant petition for the same objective, as it is
obvious that he is afraid to submit along with respondent for the judgment and
verdict of the electorate of the First District of Leyte in an honest, orderly, peaceful,
free and clean elections on May 8, 1995. 12

On April 24, 1995, the Second Division of the Commission on Elections (COMELEC),
by a vote of 2 to 1, 13 came up with a Resolution 1) finding private respondent's
Petition for Disqualification in SPA 95-009 meritorious; 2) striking off petitioner's
Corrected/Amended Certificate of Candidacy of March 31, 1995; and 3) canceling
her original Certificate of Candidacy. 14 Dealing with two primary issues, namely,
the validity of amending the original Certificate of Candidacy after the lapse of the
deadline for filing certificates of candidacy, and petitioner's compliance with the one
year residency requirement, the Second Division held:
Respondent raised the affirmative defense in her Answer that the printed word
"Seven" (months) was a result of an "honest misinterpretation or honest mistake"
on her part and, therefore, an amendment should subsequently be allowed. She
averred that she thought that what was asked was her "actual and physical"
presence in Tolosa and not residence of origin or domicile in the First Legislative
District, to which she could have responded "since childhood." In an accompanying
affidavit, she stated that her domicile is Tacloban City, a component of the First
District, to which she always intended to return whenever absent and which she has
never abandoned. Furthermore, in her memorandum, she tried to discredit
petitioner's theory of disqualification by alleging that she has been a resident of the
First Legislative District of Leyte since childhood, although she only became a
resident of the Municipality of Tolosa for seven months. She asserts that she has
always been a resident of Tacloban City, a component of the First District, before
coming to the Municipality of Tolosa.
Along this point, it is interesting to note that prior to her registration in Tolosa,
respondent announced that she would be registering in Tacloban City so that she
can be a candidate for the District. However, this intention was rebuffed when
petitioner wrote the Election Officer of Tacloban not to allow respondent since she is
a resident of Tolosa and not Tacloban. She never disputed this claim and instead
implicitly acceded to it by registering in Tolosa.
This incident belies respondent's claim of "honest misinterpretation or honest
mistake." Besides, the Certificate of Candidacy only asks for RESIDENCE. Since on
the basis of her Answer, she was quite aware of "residence of origin" which she
interprets to be Tacloban City, it is curious why she did not cite Tacloban City in her
Certificate of Candidacy. Her explanation that she thought what was asked was her
actual and physical presence in Tolosa is not easy to believe because there is none
in the question that insinuates about Tolosa. In fact, item no. 8 in the Certificate of
Candidacy speaks clearly of "Residency in the CONSTITUENCY where I seek to be
elected immediately preceding the election." Thus, the explanation of respondent
fails to be persuasive.
From the foregoing, respondent's defense of an honest mistake or misinterpretation,
therefore, is devoid of merit.
To further buttress respondent's contention that an amendment may be made, she
cited the case of Alialy v. COMELEC (2 SCRA 957). The reliance of respondent on the
case of Alialy is misplaced. The case only applies to the "inconsequential deviations
which cannot affect the result of the election, or deviations from provisions intended
primarily to secure timely and orderly conduct of elections." The Supreme Court in

that case considered the amendment only as a matter of form. But in the instant
case, the amendment cannot be considered as a matter of form or an
inconsequential deviation. The change in the number of years of residence in the
place where respondent seeks to be elected is a substantial matter which
determines her qualification as a candidacy, specially those intended to suppress,
accurate material representation in the original certificate which adversely affects
the filer. To admit the amended certificate is to condone the evils brought by the
shifting minds of manipulating candidate, of the detriment of the integrity of the
election.
Moreover, to allow respondent to change the seven (7) month period of her
residency in order to prolong it by claiming it was "since childhood" is to allow an
untruthfulness to be committed before this Commission. The arithmetical accuracy
of the 7 months residency the respondent indicated in her certificate of candidacy
can be gleaned from her entry in her Voter's Registration Record accomplished on
January 28, 1995 which reflects that she is a resident of Brgy. Olot, Tolosa, Leyte for
6 months at the time of the said registration (Annex A, Petition). Said accuracy is
further buttressed by her letter to the election officer of San Juan, Metro Manila,
dated August 24, 1994, requesting for the cancellation of her registration in the
Permanent List of Voters thereat so that she can be re-registered or transferred to
Brgy. Olot, Tolosa, Leyte. The dates of these three (3) different documents show the
respondent's consistent conviction that she has transferred her residence to Olot,
Tolosa, Leyte from Metro Manila only for such limited period of time, starting in the
last week of August 1994 which on March 8, 1995 will only sum up to 7 months. The
Commission, therefore, cannot be persuaded to believe in the respondent's
contention that it was an error.
xxx

xxx

xxx

Based on these reasons the Amended/Corrected Certificate of Candidacy cannot be

admitted by this Commission.
xxx

xxx

xxx

Anent the second issue, and based on the foregoing discussion, it is clear that
respondent has not complied with the one year residency requirement of the
Constitution.
In election cases, the term "residence" has always been considered as synonymous
with "domicile" which imports not only the intention to reside in a fixed place but
also personal presence in-that place, coupled with conduct indicative of such
intention. Domicile denotes a fixed permanent residence to which when absent for
business or pleasure, or for like reasons, one intends to return. (Perfecto Faypon vs.
Eliseo Quirino, 96 Phil 294; Romualdez vs. RTC-Tacloban, 226 SCRA 408). In
respondent's case, when she returned to the Philippines in 1991, the residence she
chose was not Tacloban but San Juan, Metro Manila. Thus, her animus revertendi is
pointed to Metro Manila and not Tacloban.
This Division is aware that her claim that she has been a resident of the First District
since childhood is nothing more than to give her a color of qualification where she is

otherwise constitutionally disqualified. It cannot hold ground in the face of the facts
admitted by the respondent in her affidavit. Except for the time that she studied
and worked for some years after graduation in Tacloban City, she continuously lived
in Manila. In 1959, after her husband was elected Senator, she lived and resided in
San Juan, Metro Manila where she was a registered voter. In 1965, she lived in San
Miguel, Manila where she was again a registered voter. In 1978, she served as
member of the Batasang Pambansa as the representative of the City of Manila and
later on served as the Governor of Metro Manila. She could not have served these
positions if she had not been a resident of the City of Manila. Furthermore, when she
filed her certificate of candidacy for the office of the President in 1992, she claimed
to be a resident of San Juan, Metro Manila. As a matter of fact on August 24, 1994,
respondent wrote a letter with the election officer of San Juan, Metro Manila
requesting for the cancellation of her registration in the permanent list of voters
that she may be re-registered or transferred to Barangay Olot, Tolosa, Leyte. These
facts manifest that she could not have been a resident of Tacloban City since
childhood up to the time she filed her certificate of candidacy because she became
a resident of many places, including Metro Manila. This debunks her claim that prior
to her residence in Tolosa, Leyte, she was a resident of the First Legislative District
of Leyte since childhood.
In this case, respondent's conduct reveals her lack of intention to make Tacloban her
domicile. She registered as a voter in different places and on several occasions
declared that she was a resident of Manila. Although she spent her school days in
Tacloban, she is considered to have abandoned such place when she chose to stay
and reside in other different places. In the case of Romualdez vs. RTC (226 SCRA
408) the Court explained how one acquires a new domicile by choice. There must
concur: (1) residence or bodily presence in the new locality; (2) intention to remain
there; and (3) intention to abandon the old domicile. In other words there must
basically be animus manendi with animus non revertendi. When respondent chose
to stay in Ilocos and later on in Manila, coupled with her intention to stay there by
registering as a voter there and expressly declaring that she is a resident of that
place, she is deemed to have abandoned Tacloban City, where she spent her
childhood and school days, as her place of domicile.
Pure intention to reside in that place is not sufficient, there must likewise be
conduct indicative of such intention. Respondent's statements to the effect that she
has always intended to return to Tacloban, without the accompanying conduct to
prove that intention, is not conclusive of her choice of residence. Respondent has
not presented any evidence to show that her conduct, one year prior the election,
showed intention to reside in Tacloban. Worse, what was evident was that prior to
her residence in Tolosa, she had been a resident of Manila.
It is evident from these circumstances that she was not a resident of the First
District of Leyte "since childhood."
To further support the assertion that she could have not been a resident of the First
District of Leyte for more than one year, petitioner correctly pointed out that on
January 28, 1995 respondent registered as a voter at precinct No. 18-A of Olot,
Tolosa, Leyte. In doing so, she placed in her Voter Registration Record that she
resided in the municipality of Tolosa for a period of six months. This may be

inconsequential as argued by the respondent since it refers only to her residence in

Tolosa, Leyte. But her failure to prove that she was a resident of the First District of
Leyte prior to her residence in Tolosa leaves nothing but a convincing proof that she
had been a resident of the district for six months only. 15
In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC
en banc denied petitioner's Motion for Reconsideration 16 of the April 24, 1995
Resolution declaring her not qualified to run for the position of Member of the House
of Representatives for the First Legislative District of Leyte. 17 The Resolution
tersely stated:
After deliberating on the Motion for Reconsideration, the Commission RESOLVED to
DENY it, no new substantial matters having been raised therein to warrant reexamination of the resolution granting the petition for disqualification. 18
On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's
proclamation should the results of the canvass show that she obtained the highest
number of votes in the congressional elections in the First District of Leyte. On the
same day, however, the COMELEC reversed itself and issued a second Resolution
directing that the proclamation of petitioner be suspended in the event that she
obtains the highest number of votes. 19
In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the
overwhelming winner of the elections for the congressional seat in the First District
of Leyte held May 8, 1995 based on the canvass completed by the Provincial Board
of Canvassers on May 14, 1995. Petitioner alleged that the canvass showed that she
obtained a total of 70,471 votes compared to the 36,833 votes received by
Respondent Montejo. A copy of said Certificate of Canvass was annexed to the
Supplemental Petition.
On account of the Resolutions disqualifying petitioner from running for the
congressional seat of the First District of Leyte and the public respondent's
Resolution suspending her proclamation, petitioner comes to this court for relief.
Petitioner raises several issues in her Original and Supplemental Petitions. The
principal issues may be classified into two general areas:
I.

The issue of Petitioner's qualifications

Whether or not petitioner was a resident, for election purposes, of the First District
of Leyte for a period of one year at the time of the May 9, 1995 elections.
II.

The Jurisdictional Issue

a)

Prior to the elections

Whether or not the COMELEC properly exercised its jurisdiction in disqualifying

petitioner outside the period mandated by the Omnibus Election Code for
disqualification cases under Article 78 of the said Code.

b)

After the Elections

Whether or not the House of Representatives Electoral Tribunal assumed exclusive

jurisdiction over the question of petitioner's qualifications after the May 8, 1995
elections.
I.

Petitioner's qualification

A perusal of the Resolution of the COMELEC's Second Division reveals a startling

confusion in the application of settled concepts of "Domicile" and "Residence" in
election law. While the COMELEC seems to be in agreement with the general
proposition that for the purposes of election law, residence is synonymous with
domicile, the Resolution reveals a tendency to substitute or mistake the concept of
domicile for actual residence, a conception not intended for the purpose of
determining a candidate's qualifications for election to the House of Representatives
as required by the 1987 Constitution. As it were, residence, for the purpose of
meeting the qualification for an elective position, has a settled meaning in our
jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the
fulfillment of civil obligations, the domicile of natural persons is their place of
habitual residence." In Ong vs. Republic 20 this court took the concept of domicile
to mean an individual's "permanent home", "a place to which, whenever absent for
business or for pleasure, one intends to return, and depends on facts and
circumstances in the sense that they disclose intent." 21 Based on the foregoing,
domicile includes the twin elements of "the fact of residing or physical presence in a
fixed place" and animus manendi, or the intention of returning there permanently.
Residence, in its ordinary conception, implies the factual relationship of an
individual to a certain place. It is the physical presence of a person in a given area,
community or country. The essential distinction between residence and domicile in
law is that residence involves the intent to leave when the purpose for which the
resident has taken up his abode ends. One may seek a place for purposes such as
pleasure, business, or health. If a person's intent be to remain, it becomes his
domicile; if his intent is to leave as soon as his purpose is established it is residence.
22 It is thus, quite perfectly normal for an individual to have different residences in
various places. However, a person can only have a single domicile, unless, for
various reasons, he successfully abandons his domicile in favor of another domicile
of choice. In Uytengsu vs. Republic, 23 we laid this distinction quite clearly:
There is a difference between domicile and residence. "Residence" is used to
indicate a place of abode, whether permanent or temporary; "domicile" denotes a
fixed permanent residence to which, when absent, one has the intention of
returning. A man may have a residence in one place and a domicile in another.
Residence is not domicile, but domicile is residence coupled with the intention to
remain for an unlimited time. A man can have but one domicile for the same
purpose at any time, but he may have numerous places of residence. His place of
residence is generally his place of domicile, but it is not by any means necessarily
so since no length of residence without intention of remaining will constitute
domicile.

For political purposes the concepts of residence and domicile are dictated by the
peculiar criteria of political laws. As these concepts have evolved in our election
law, what has clearly and unequivocally emerged is the fact that residence for
election purposes is used synonymously with domicile.
In Nuval vs. Guray, 24 the Court held that "the term residence. . . is synonymous
with domicile which imports not only intention to reside in a fixed place, but also
personal presence in that place, coupled with conduct indicative of such intention."
25 Larena vs. Teves 26 reiterated the same doctrine in a case involving the
qualifications of the respondent therein to the post of Municipal President of
Dumaguete, Negros Oriental. Faypon vs. Quirino, 27 held that the absence from
residence to pursue studies or practice a profession or registration as a voter other
than in the place where one is elected does not constitute loss of residence. 28 So
settled is the concept (of domicile) in our election law that in these and other
election law cases, this Court has stated that the mere absence of an individual
from his permanent residence without the intention to abandon it does not result in
a loss or change of domicile.
The deliberations of the 1987 Constitution on the residence qualification for certain
elective positions have placed beyond doubt the principle that when the
Constitution speaks of "residence" in election law, it actually means only "domicile"
to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional
Convention, there was an attempt to require residence in the place not less than
one year immediately preceding the day of the elections. So my question is: What is
the Committee's concept of residence of a candidate for the legislature? Is it actual
residence or is it the concept of domicile or constructive residence?
Mr. Davide: Madame President, insofar as the regular members of the National
Assembly are concerned, the proposed section merely provides, among others, "and
a resident thereof", that is, in the district for a period of not less than one year
preceding the day of the election. This was in effect lifted from the 1973
Constitution, the interpretation given to it was domicile. 29
xxx

xxx

xxx

Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner
Nolledo has raised the same point that "resident" has been interpreted at times as a
matter of intention rather than actual residence.
Mr. De los Reyes:

Domicile.

Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper time to go
back to actual residence rather than mere intention to reside?
Mr. De los Reyes: But we might encounter some difficulty especially considering
that a provision in the Constitution in the Article on Suffrage says that Filipinos living

abroad may vote as enacted by law. So, we have to stick to the original concept that
it should be by domicile and not physical residence. 30
In Co vs. Electoral Tribunal of the House of Representatives, 31 this Court concluded
that the framers of the 1987 Constitution obviously adhered to the definition given
to the term residence in election law, regarding it as having the same meaning as
domicile. 32
In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos
satisfied the residency requirement mandated by Article VI, Sec. 6 of the 1987
Constitution? Of what significance is the questioned entry in petitioner's Certificate
of Candidacy stating her residence in the First Legislative District of Leyte as seven
(7) months?
It is the fact of residence, not a statement in a certificate of candidacy which ought
to be decisive in determining whether or not and individual has satisfied the
constitution's residency qualification requirement. The said statement becomes
material only when there is or appears to be a deliberate attempt to mislead,
misinform, or hide a fact which would otherwise render a candidate ineligible. It
would be plainly ridiculous for a candidate to deliberately and knowingly make a
statement in a certificate of candidacy which would lead to his or her
disqualification.
It stands to reason therefore, that petitioner merely committed an honest mistake in
jotting the word "seven" in the space provided for the residency qualification
requirement. The circumstances leading to her filing the questioned entry obviously
resulted in the subsequent confusion which prompted petitioner to write down the
period of her actual stay in Tolosa, Leyte instead of her period of residence in the
First district, which was "since childhood" in the space provided. These
circumstances and events are amply detailed in the COMELEC's Second Division's
questioned resolution, albeit with a different interpretation. For instance, when
herein petitioner announced that she would be registering in Tacloban City to make
her eligible to run in the First District, private respondent Montejo opposed the
same, claiming that petitioner was a resident of Tolosa, not Tacloban City. Petitioner
then registered in her place of actual residence in the First District, which is Tolosa,
Leyte, a fact which she subsequently noted down in her Certificate of Candidacy. A
close look at said certificate would reveal the possible source of the confusion: the
entry for residence (Item No. 7) is followed immediately by the entry for residence
in the constituency where a candidate seeks election thus:
7.

RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte

POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot, Tolosa, Leyte
8.
RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO
BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________ Years and Seven
Months.
Having been forced by private respondent to register in her place of actual
residence in Leyte instead of petitioner's claimed domicile, it appears that petitioner

had jotted down her period of stay in her legal residence or domicile. The
juxtaposition of entries in Item 7 and Item 8 the first requiring actual residence
and the second requiring domicile coupled with the circumstances surrounding
petitioner's registration as a voter in Tolosa obviously led to her writing down an
unintended entry for which she could be disqualified. This honest mistake should
not, however, be allowed to negate the fact of residence in the First District if such
fact were established by means more convincing than a mere entry on a piece of
paper.
We now proceed to the matter of petitioner's domicile.
In support of its asseveration that petitioner's domicile could not possibly be in the
First District of Leyte, the Second Division of the COMELEC, in its assailed Resolution
of April 24,1995 maintains that "except for the time when (petitioner) studied and
worked for some years after graduation in Tacloban City, she continuously lived in
Manila." The Resolution additionally cites certain facts as indicative of the fact that
petitioner's domicile ought to be any place where she lived in the last few decades
except Tacloban, Leyte. First, according to the Resolution, petitioner, in 1959,
resided in San Juan, Metro Manila where she was also registered voter. Then, in
1965, following the election of her husband to the Philippine presidency, she lived in
San Miguel, Manila where she as a voter. In 1978 and thereafter, she served as a
member of the Batasang Pambansa and Governor of Metro Manila. "She could not,
have served these positions if she had not been a resident of Metro Manila," the
COMELEC stressed. Here is where the confusion lies.
We have stated, many times in the past, that an individual does not lose his
domicile even if he has lived and maintained residences in different places.
Residence, it bears repeating, implies a factual relationship to a given place for
various purposes. The absence from legal residence or domicile to pursue a
profession, to study or to do other things of a temporary or semi-permanent nature
does not constitute loss of residence. Thus, the assertion by the COMELEC that "she
could not have been a resident of Tacloban City since childhood up to the time she
filed her certificate of candidacy because she became a resident of many places"
flies in the face of settled jurisprudence in which this Court carefully made
distinctions between (actual) residence and domicile for election law purposes. In
Larena vs. Teves, 33 supra, we stressed:
[T]his court is of the opinion and so holds that a person who has his own house
wherein he lives with his family in a municipality without having ever had the
intention of abandoning it, and without having lived either alone or with his family in
another municipality, has his residence in the former municipality, notwithstanding
his having registered as an elector in the other municipality in question and having
been a candidate for various insular and provincial positions, stating every time that
he is a resident of the latter municipality.
More significantly, in Faypon vs. Quirino, 34 We explained that:
A citizen may leave the place of his birth to look for "greener pastures," as the
saying goes, to improve his lot, and that, of course includes study in other places,
practice of his avocation, or engaging in business. When an election is to be held,

the citizen who left his birthplace to improve his lot may desire to return to his
native town to cast his ballot but for professional or business reasons, or for any
other reason, he may not absent himself from his professional or business activities;
so there he registers himself as voter as he has the qualifications to be one and is
not willing to give up or lose the opportunity to choose the officials who are to run
the government especially in national elections. Despite such registration, the
animus revertendi to his home, to his domicile or residence of origin has not
forsaken him. This may be the explanation why the registration of a voter in a place
other than his residence of origin has not been deemed sufficient to constitute
abandonment or loss of such residence. It finds justification in the natural desire and
longing of every person to return to his place of birth. This strong feeling of
attachment to the place of one's birth must be overcome by positive proof of
abandonment for another.
From the foregoing, it can be concluded that in its above-cited statements
supporting its proposition that petitioner was ineligible to run for the position of
Representative of the First District of Leyte, the COMELEC was obviously referring to
petitioner's various places of (actual) residence, not her domicile. In doing so, it not
only ignored settled jurisprudence on residence in election law and the deliberations
of the constitutional commission but also the provisions of the Omnibus Election
Code (B.P. 881). 35
What is undeniable, however, are the following set of facts which establish the fact
of petitioner's domicile, which we lift verbatim from the COMELEC's Second
Division's assailed Resolution: 36
In or about 1938 when respondent was a little over 8 years old, she established her
domicile in Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy
in Tacloban from 1938 to 1949 when she graduated from high school. She pursued
her college studies in St. Paul's College, now Divine Word University in Tacloban,
where she earned her degree in Education. Thereafter, she taught in the Leyte
Chinese School, still in Tacloban City. In 1952 she went to Manila to work with her
cousin, the late speaker Daniel Z. Romualdez in his office in the House of
Representatives. In 1954, she married ex-President Ferdinand E. Marcos when he
was still a congressman of Ilocos Norte and registered there as a voter. When her
husband was elected Senator of the Republic in 1959, she and her husband lived
together in San Juan, Rizal where she registered as a voter. In 1965, when her
husband was elected President of the Republic of the Philippines, she lived with him
in Malacanang Palace and registered as a voter in San Miguel, Manila.
[I]n February 1986 (she claimed that) she and her family were abducted and
kidnapped to Honolulu, Hawaii. In November 1991, she came home to Manila. In
1992, respondent ran for election as President of the Philippines and filed her
Certificate of Candidacy wherein she indicated that she is a resident and registered
voter of San Juan, Metro Manila.
Applying the principles discussed to the facts found by COMELEC, what is
inescapable is that petitioner held various residences for different purposes during
the last four decades. None of these purposes unequivocally point to an intention to
abandon her domicile of origin in Tacloban, Leyte. Moreover, while petitioner was

born in Manila, as a minor she naturally followed the domicile of her parents. She
grew up in Tacloban, reached her adulthood there and eventually established
residence in different parts of the country for various reasons. Even during her
husband's presidency, at the height of the Marcos Regime's powers, petitioner kept
her close ties to her domicile of origin by establishing residences in Tacloban,
celebrating her birthdays and other important personal milestones in her home
province, instituting well-publicized projects for the benefit of her province and
hometown, and establishing a political power base where her siblings and close
relatives held positions of power either through the ballot or by appointment,
always with either her influence or consent. These well-publicized ties to her
domicile of origin are part of the history and lore of the quarter century of Marcos
power in our country. Either they were entirely ignored in the COMELEC'S
Resolutions, or the majority of the COMELEC did not know what the rest of the
country always knew: the fact of petitioner's domicile in Tacloban, Leyte.
Private respondent in his Comment, contends that Tacloban was not petitioner's
domicile of origin because she did not live there until she was eight years old. He
avers that after leaving the place in 1952, she "abandoned her residency (sic)
therein for many years and . . . (could not) re-establish her domicile in said place by
merely expressing her intention to live there again." We do not agree.
First, minor follows the domicile of his parents. As domicile, once acquired is
retained until a new one is gained, it follows that in spite of the fact of petitioner's
being born in Manila, Tacloban, Leyte was her domicile of origin by operation of law.
This domicile was not established only when her father brought his family back to
Leyte contrary to private respondent's averments.
Second, domicile of origin is not easily lost. To successfully effect a change of
domicile, one must demonstrate: 37
1.

An actual removal or an actual change of domicile;

2.
A bona fide intention of abandoning the former place of residence and
establishing a new one; and
3.

Acts which correspond with the purpose.

In the absence of clear and positive proof based on these criteria, the residence of
origin should be deemed to continue. Only with evidence showing concurrence of all
three requirements can the presumption of continuity or residence be rebutted, for
a change of residence requires an actual and deliberate abandonment, and one
cannot have two legal residences at the same time. 38 In the case at bench, the
evidence adduced by private respondent plainly lacks the degree of persuasiveness
required to convince this court that an abandonment of domicile of origin in favor of
a domicile of choice indeed occurred. To effect an abandonment requires the
voluntary act of relinquishing petitioner's former domicile with an intent to supplant
the former domicile with one of her own choosing (domicilium voluntarium).
In this connection, it cannot be correctly argued that petitioner lost her domicile of
origin by operation of law as a result of her marriage to the late President Ferdinand

E. Marcos in 1952. For there is a clearly established distinction between the Civil
Code concepts of "domicile" and "residence." 39 The presumption that the wife
automatically gains the husband's domicile by operation of law upon marriage
cannot be inferred from the use of the term "residence" in Article 110 of the Civil
Code because the Civil Code is one area where the two concepts are well
delineated. Dr. Arturo Tolentino, writing on this specific area explains:
In the Civil Code, there is an obvious difference between domicile and residence.
Both terms imply relations between a person and a place; but in residence, the
relation is one of fact while in domicile it is legal or juridical, independent of the
necessity of physical presence. 40
Article 110 of the Civil Code provides:
Art. 110. The husband shall fix the residence of the family. But the court may
exempt the wife from living with the husband if he should live abroad unless in the
service of the Republic.
A survey of jurisprudence relating to Article 110 or to the concepts of domicile or
residence as they affect the female spouse upon marriage yields nothing which
would suggest that the female spouse automatically loses her domicile of origin in
favor of the husband's choice of residence upon marriage.
Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889
which states:
La mujer esta obligada a seguir a su marido donde quiera que fije su residencia. Los
Tribunales, sin embargo, podran con justa causa eximirla de esta obligacion cuando
el marido transende su residencia a ultramar o' a pais extranjero.
Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted
article, which means wherever (the husband) wishes to establish residence. This
part of the article clearly contemplates only actual residence because it refers to a
positive act of fixing a family home or residence. Moreover, this interpretation is
further strengthened by the phrase "cuando el marido translade su residencia" in
the same provision which means, "when the husband shall transfer his residence,"
referring to another positive act of relocating the family to another home or place of
actual residence. The article obviously cannot be understood to refer to domicile
which is a fixed,
fairly-permanent concept when it plainly connotes the possibility of transferring
from one place to another not only once, but as often as the husband may deem fit
to move his family, a circumstance more consistent with the concept of actual
residence.
The right of the husband to fix the actual residence is in harmony with the intention
of the law to strengthen and unify the family, recognizing the fact that the husband
and the wife bring into the marriage different domiciles (of origin). This difference
could, for the sake of family unity, be reconciled only by allowing the husband to fix
a single place of actual residence.

Very significantly, Article 110 of the Civil Code is found under Title V under the
heading: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately
preceding Article 110 is Article 109 which obliges the husband and wife to live
together, thus:
Art. 109. The husband and wife are obligated to live together, observe mutual
respect and fidelity and render mutual help and support.
The duty to live together can only be fulfilled if the husband and wife are physically
together. This takes into account the situations where the couple has many
residences (as in the case of the petitioner). If the husband has to stay in or transfer
to any one of their residences, the wife should necessarily be with him in order that
they may "live together." Hence, it is illogical to conclude that Art. 110 refers to
"domicile" and not to "residence." Otherwise, we shall be faced with a situation
where the wife is left in the domicile while the husband, for professional or other
reasons, stays in one of their (various) residences. As Dr. Tolentino further explains:
Residence and Domicile Whether the word "residence" as used with reference to
particular matters is synonymous with "domicile" is a question of some difficulty,
and the ultimate decision must be made from a consideration of the purpose and
intent with which the word is used. Sometimes they are used synonymously, at
other times they are distinguished from one another.
xxx

xxx

xxx

Residence in the civil law is a material fact, referring to the physical presence of a
person in a place. A person can have two or more residences, such as a country
residence and a city residence. Residence is acquired by living in place; on the other
hand, domicile can exist without actually living in the place. The important thing for
domicile is that, once residence has been established in one place, there be an
intention to stay there permanently, even if residence is also established in some
other
place. 41
In fact, even the matter of a common residence between the husband and the wife
during the marriage is not an iron-clad principle; In cases applying the Civil Code on
the question of a common matrimonial residence, our jurisprudence has recognized
certain situations 42 where the spouses could not be compelled to live with each
other such that the wife is either allowed to maintain a residence different from that
of her husband or, for obviously practical reasons, revert to her original domicile
(apart from being allowed to opt for a new one). In De la Vina vs. Villareal 43 this
Court held that "[a] married woman may acquire a residence or domicile separate
from that of her husband during the existence of the marriage where the husband
has given cause for divorce." 44 Note that the Court allowed the wife either to
obtain new residence or to choose a new domicile in such an event. In instances
where the wife actually opts, .under the Civil Code, to live separately from her
husband either by taking new residence or reverting to her domicile of origin, the
Court has held that the wife could not be compelled to live with her husband on
pain of contempt. In Arroyo vs. Vasques de Arroyo 45 the Court held that:

Upon examination of the authorities, we are convinced that it is not within the
province of the courts of this country to attempt to compel one of the spouses to
cohabit with, and render conjugal rights to, the other. Of course where the property
rights of one of the pair are invaded, an action for restitution of such rights can be
maintained. But we are disinclined to sanction the doctrine that an order, enforcible
(sic) by process of contempt, may be entered to compel the restitution of the purely
personal right of consortium. At best such an order can be effective for no other
purpose than to compel the spouses to live under the same roof; and he experience
of those countries where the courts of justice have assumed to compel the
cohabitation of married people shows that the policy of the practice is extremely
questionable. Thus in England, formerly the Ecclesiastical Court entertained suits for
the restitution of conjugal rights at the instance of either husband or wife; and if the
facts were found to warrant it, that court would make a mandatory decree,
enforceable by process of contempt in case of disobedience, requiring the
delinquent party to live with the other and render conjugal rights. Yet this practice
was sometimes criticized even by the judges who felt bound to enforce such orders,
and in Weldon v. Weldon (9 P.D. 52), decided in 1883, Sir James Hannen, President in
the Probate, Divorce and Admiralty Division of the High Court of Justice, expressed
his regret that the English law on the subject was not the same as that which
prevailed in Scotland, where a decree of adherence, equivalent to the decree for the
restitution of conjugal rights in England, could be obtained by the injured spouse,
but could not be enforced by imprisonment. Accordingly, in obedience to the
growing sentiment against the practice, the Matrimonial Causes Act (1884)
abolished the remedy of imprisonment; though a decree for the restitution of
conjugal rights can still be procured, and in case of disobedience may serve in
appropriate cases as the basis of an order for the periodical payment of a stipend in
the character of alimony.
In the voluminous jurisprudence of the United States, only one court, so far as we
can discover, has ever attempted to make a preemptory order requiring one of the
spouses to live with the other; and that was in a case where a wife was ordered to
follow and live with her husband, who had changed his domicile to the City of New
Orleans. The decision referred to (Bahn v. Darby, 36 La. Ann., 70) was based on a
provision of the Civil Code of Louisiana similar to article 56 of the Spanish Civil
Code. It was decided many years ago, and the doctrine evidently has not been
fruitful even in the State of Louisiana. In other states of the American Union the idea
of enforcing cohabitation by process of contempt is rejected. (21 Cyc., 1148).
In a decision of January 2, 1909, the Supreme Court of Spain appears to have
affirmed an order of the Audiencia Territorial de Valladolid requiring a wife to return
to the marital domicile, and in the alternative, upon her failure to do so, to make a
particular disposition of certain money and effects then in her possession and to
deliver to her husband, as administrator of the ganancial property, all income, rents,
and interest which might accrue to her from the property which she had brought to
the marriage. (113 Jur. Civ., pp. 1, 11) But it does not appear that this order for the
return of the wife to the marital domicile was sanctioned by any other penalty than
the consequences that would be visited upon her in respect to the use and control
of her property; and it does not appear that her disobedience to that order would
necessarily have been followed by imprisonment for contempt.

Parenthetically when Petitioner was married to then Congressman Marcos, in 1954,

petitioner was obliged by virtue of Article 110 of the Civil Code to follow her
husband's actual place of residence fixed by him. The problem here is that at that
time, Mr. Marcos had several places of residence, among which were San Juan, Rizal
and Batac, Ilocos Norte. There is no showing which of these places Mr. Marcos did fix
as his family's residence. But assuming that Mr. Marcos had fixed any of these
places as the conjugal residence, what petitioner gained upon marriage was actual
residence. She did not lose her domicile of origin.
On the other hand, the common law concept of "matrimonial domicile" appears to
have been incorporated, as a result of our jurisprudential experiences after the
drafting of the Civil Code of 1950, into the New Family Code. To underscore the
difference between the intentions of the Civil Code and the Family Code drafters,
the term residence has been supplanted by the term domicile in an entirely new
provision (Art. 69) distinctly different in meaning and spirit from that found in Article
110. The provision recognizes revolutionary changes in the concept of women's
rights in the intervening years by making the choice of domicile a product of mutual
agreement between the spouses. 46
Without as much belaboring the point, the term residence may mean one thing in
civil law (or under the Civil Code) and quite another thing in political law. What
stands clear is that insofar as the Civil Code is concerned-affecting the rights and
obligations of husband and wife the term residence should only be interpreted to
mean "actual residence." The inescapable conclusion derived from this
unambiguous civil law delineation therefore, is that when petitioner married the
former President in 1954, she kept her domicile of origin and merely gained a new
home, not a domicilium necessarium.
Even assuming for the sake of argument that petitioner gained a new "domicile"
after her marriage and only acquired a right to choose a new one after her husband
died, petitioner's acts following her return to the country clearly indicate that she
not only impliedly but expressly chose her domicile of origin (assuming this was lost
by operation of law) as her domicile. This "choice" was unequivocally expressed in
her letters to the Chairman of the PCGG when petitioner sought the PCGG's
permission to "rehabilitate (our) ancestral house in Tacloban and Farm in Olot,
Leyte. . . to make them livable for the Marcos family to have a home in our
homeland." 47 Furthermore, petitioner obtained her residence certificate in 1992 in
Tacloban, Leyte, while living in her brother's house, an act which supports the
domiciliary intention clearly manifested in her letters to the PCGG Chairman. She
could not have gone straight to her home in San Juan, as it was in a state of
disrepair, having been previously looted by vandals. Her "homes" and "residences"
following her arrival in various parts of Metro Manila merely qualified as temporary
or "actual residences," not domicile. Moreover, and proceeding from our discussion
pointing out specific situations where the female spouse either reverts to her
domicile of origin or chooses a new one during the subsistence of the marriage, it
would be highly illogical for us to assume that she cannot regain her original
domicile upon the death of her husband absent a positive act of selecting a new one
where situations exist within the subsistence of the marriage itself where the wife
gains a domicile different from her husband.

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

The jurisdictional issue

Petitioner alleges that the jurisdiction of the COMELEC had already lapsed
considering that the assailed resolutions were rendered on April 24, 1995, fourteen
(14) days before the election in violation of Section 78 of the Omnibus Election
Code. 48 Moreover, petitioner contends that it is the House of Representatives
Electoral Tribunal and not the COMELEC which has jurisdiction over the election of
members of the House of Representatives in accordance with Article VI Sec. 17 of
the Constitution. This is untenable.
It is a settled doctrine that a statute requiring rendition of judgment within a
specified time is generally construed to be merely directory, 49 "so that noncompliance with them does not invalidate the judgment on the theory that if the
statute had intended such result it would have clearly indicated it." 50 The
difference between a mandatory and a directory provision is often made on grounds
of necessity. Adopting the same view held by several American authorities, this
court in Marcelino vs. Cruz held that: 51
The difference between a mandatory and directory provision is often determined on
grounds of expediency, the reason being that less injury results to the general
public by disregarding than enforcing the letter of the law.
In Trapp v. Mc Cormick, a case calling for the interpretation of a statute containing a
limitation of thirty (30) days within which a decree may be entered without the
consent of counsel, it was held that "the statutory provisions which may be thus
departed from with impunity, without affecting the validity of statutory proceedings,
are usually those which relate to the mode or time of doing that which is essential
to effect the aim and purpose of the Legislature or some incident of the essential
act." Thus, in said case, the statute under examination was construed merely to be
directory.
The mischief in petitioner's contending that the COMELEC should have abstained
from rendering a decision after the period stated in the Omnibus Election Code
because it lacked jurisdiction, lies in the fact that our courts and other quasi-judicial
bodies would then refuse to render judgments merely on the ground of having failed
to reach a decision within a given or prescribed period.
In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to
Section 78 of B.P. 881, 52 it is evident that the respondent Commission does not
lose jurisdiction to hear and decide a pending disqualification case under Section 78
of B.P. 881 even after the elections.
As to the House of Representatives Electoral Tribunal's supposed assumption of
jurisdiction over the issue of petitioner's qualifications after the May 8, 1995
elections, suffice it to say that HRET's jurisdiction as the sole judge of all contests

relating to the elections, returns and qualifications of members of Congress begins

only after a candidate has become a member of the House of Representatives. 53
Petitioner not being a member of the House of Representatives, it is obvious that
the HRET at this point has no jurisdiction over the question.
It would be an abdication of many of the ideals enshrined in the 1987 Constitution
for us to either to ignore or deliberately make distinctions in law solely on the basis
of the personality of a petitioner in a case. Obviously a distinction was made on
such a ground here. Surely, many established principles of law, even of election
laws were flouted for the sake perpetuating power during the pre-EDSA regime. We
renege on these sacred ideals, including the meaning and spirit of EDSA ourselves
bending established principles of principles of law to deny an individual what he or
she justly deserves in law. Moreover, in doing so, we condemn ourselves to repeat
the mistakes of the past.
WHEREFORE, having determined that petitioner possesses the necessary residence
qualifications to run for a seat in the House of Representatives in the First District of
Leyte, the COMELEC's questioned Resolutions dated April 24, May 7, May 11, and
May 25, 1995 are hereby SET ASIDE. Respondent COMELEC is hereby directed to
order the Provincial Board of Canvassers to proclaim petitioner as the duly elected
Representative of the First District of Leyte.
SO ORDERED.
Feliciano, J., is on leave.
Aquino v. Comelec
G.R. No. 120265
September 18, 1995
AGAPITO A. AQUINO, petitioner,
vs.
COMMISSION ON ELECTIONS, MOVE MAKATI, MATEO BEDON and JUANITO ICARO,
respondents.

KAPUNAN, J.:
The sanctity of the people's will must be observed at all times if our nascent
democracy is to be preserved. In any challenge having the effect of reversing a
democratic choice, expressed through the ballot, this Court should be ever so
vigilant in finding solutions which would give effect to the will of the majority, for
sound public policy dictates that all elective offices are filled by those who have
received the highest number of votes cast in an election. When a challenge to a
winning candidate's qualifications however becomes inevitable, the ineligibility
ought to be so noxious to the Constitution that giving effect to the apparent will of
the people would ultimately do harm to our democratic institutions.

On March 20, 1995, petitioner Agapito A. Aquino filed his Certificate of Candidacy
for the position of Representative for the new Second Legislative District of Makati
City. Among others, Aquino provided the following information in his certificate of
candidacy, viz:.
(7)
RESIDENCE (Complete Address): 284 AMAPOLA COR. ADALLA STS., PALM
VILLAGE, MAKATI.
xxx

xxx

xxx

(8)
RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED
IMMEDIATELY PRECEDING THE ELECTION: ______ Years and 10 Months.
xxx

xxx

xxx

THAT I AM ELIGIBLE for said Office; That I will support and defend the Constitution of
the Republic of the Philippines and will maintain true faith and allegiance thereto;
That I will obey the law, rules and decrees promulgated by the duly constituted
authorities; That the obligation imposed to such is assumed voluntarily, without
mental reservation or purpose of evasion, and that the facts therein are true to the
best of my knowledge. 1
On April 24, 1995, Move Makati, a duly registered political party, and Mateo Bedon,
Chairman of the LAKAS-NUCD-UMDP of Barangay Cembo, Makati City, filed a
petition to disqualify Agapito A. Aquino 2 on the ground that the latter lacked the
residence qualification as a candidate for congressman which, under Section 6, Art.
VI of the 1987 the Constitution, should be for a period not less than one (1) year
immediately preceding the May 8, 1995 elections. The petition was docketed as SPA
No. 95-113 and was assigned to the Second Division of the Commission on Elections
(COMELEC).
On April 25, 1995, a day after said petition for disqualification was filed, petitioner
filed another certificate of candidacy amending the certificate dated March 20,
1995. This time, petitioner stated in Item 8 of his certificate that he had resided in
the constituency where he sought to be elected for one (l) year and thirteen (13)
days. 3
On May 2, 1995, petitioner filed his Answer dated April 29, 1995 praying for the
dismissal of the disqualification case. 4
On the same day, May 2, 1995, a hearing was conducted by the COMELEC wherein
petitioner testified and presented in evidence, among others, his Affidavit dated
May 2, 1995, 5 lease contract between petitioner and Leonor Feliciano dated April 1,
1994, 6 Affidavit of Leonor Feliciano dated April 28,1995 7 and Affidavit of Daniel
Galamay dated April 28, 1995. 8
After hearing of the petition for disqualification, the Second Division of the COMELEC
promulgated a Resolution dated May 6, 1995, the decretal portion of which reads:

WHEREFORE, in view of the foregoing, this Commission (Second Division) RESOLVES

to DISMISS the instant: petition for Disqualification against respondent AGAPITO
AQUINO and declares him ELIGIBLE to run for the Office of Representative in the
Second Legislative District of Makati City.
SO ORDERED. 9
On May 7, 1995, Move Makati and Mateo Bedon filed a Motion for Reconsideration of
the May 6, 1995 resolution with the COMELEC en banc.
Meanwhile, on May 8, 1995, elections were held. In Makati City where three (3)
candidates vied for the congressional seat in the Second District, petitioner
garnered thirty eight thousand five hundred forty seven (38,547) votes as against
another candidate, Agusto Syjuco, who obtained thirty five thousand nine hundred
ten (35,910) votes. 10
On May 10, 1995, private respondents Move Makati and Bedon filed an Urgent
Motion Ad Cautelum to Suspend Proclamation of petitioner. Thereafter, they filed an
Omnibus Motion for Reconsideration of the COMELEC's Second Division resolution
dated May 6, 1995 and a 2nd Urgent Motion Ad Cautelum to Suspend Proclamation
of petitioner.
On May 15, 1995, COMELEC en banc issued an Order suspending petitioner's
proclamation. The dispositive portion of the order reads:
WHEREFORE, pursuant to the provisions of Section 6 of Republic Act No. 6646, the
Board of Canvassers of the City of Makati is hereby directed to complete the
canvassing of election returns of the Second District of Makati, but to suspend the
proclamation of respondent Agapito A. Aquino should he obtain the winning number
of votes for the position of Representative of the Second District of the City of
Makati, until the motion for reconsideration filed by the petitioners on May 7, 1995,
shall have been resolved by the Commission.
The Executive Director, this Commission, is directed to cause the immediate
implementation of this Order. The Clerk of Court of the Commission is likewise
directed to inform the parties by the fastest means available of this Order, and to
calendar the hearing of the Motion for Reconsideration on May 17, 1995, at 10:00 in
the morning, PICC Press Center, Pasay City.
SO ORDERED. 11
On May 16, 1995, petitioner filed his Comment/Opposition with urgent motion to lift
order of suspension of proclamation.
On June 1, 1995, petitioner filed a "Motion to File Supplemental Memorandum and
Motion to Resolve Urgent Motion to Resolve Motion to Lift Suspension of
Proclamation" wherein he manifested his intention to raise, among others, the issue
of whether of not the determination of the qualifications of petitioner after the
elections is lodged exclusively in the House of Representatives Electoral Tribunal
pursuant to Section 17, Article VI of the 1987 Constitution.

Resolving petitioner's motion to lift suspension of his proclamation, the COMELEC en

banc issued an Order on June 2, 1995, the decretal portion thereof residing:
Pursuant to the said provisions and considering the attendant circumstances of the
case, the Commission RESOLVED to proceed with the promulgation but to suspend
its rules, to accept the filing of the aforesaid motion, and to allow the parties to be
heard thereon because the issue of jurisdiction now before the Commission has to
be studied with more reflection and judiciousness. 12
On the same day, June 2, 1995, the COMELEC en banc issued a Resolution reversing
the resolution of the Second Division dated May 6, 1995. The fallo reads as follows:
WHEREFORE, in view of the foregoing, petitioners' Motion for Reconsideration of the
Resolution of the Second Division, promulgated on May 6, 1995, is GRANTED.
Respondent Agapito A. Aquino is declared ineligible and thus disqualified as a
candidate for the Office of Representative of the Second Legislative District of
Makati City in the May 8, 1995 elections, for lack of the constitutional qualification
of residence. Consequently, the order of suspension of proclamation of the
respondent should he obtain the winning number of votes, issued by this
Commission on May 15, 1995 is now made permanent.
Upon the finality of this Resolution, the Board of Canvassers of the City of Makati
shall immediately reconvene and, on the basis of the completed canvass of election
returns, determine the winner out of the remaining qualified candidates, who shall
be immediately be proclaimed.
SO ORDERED. 13
Hence, the instant Petition for Certiorari 14 assailing the orders dated May 15, 1995
and June 2, 1995, as well as the resolution dated June 2, 1995 issued by the
COMELEC en banc. Petitioner's raises the following errors for consideration, to wit:
A
THE COMELEC HAS NO JURISDICTION TO DETERMINE AND ADJUDGE THE
DISQUALIFICATION ISSUE INVOLVING CONGRESSIONAL CANDIDATES AFTER THE MAY
8, 1995 ELECTIONS, SUCH DETERMINATION BEING RESERVED TO AND LODGE
EXCLUSIVELY WITH THE HOUSE OF REPRESENTATIVE ELECTORAL TRIBUNAL
B
ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, SAID JURISDICTION
CEASED IN THE INSTANT CASE AFTER THE ELECTIONS, AND THE REMEDY/IES
AVAILABLE TO THE ADVERSE PARTIES LIE/S IN ANOTHER FORUM WHICH, IT IS
SUBMITTED, IS THE HRET CONSISTENT WITH SECTION 17, ARTICLE VI OF THE 1987
CONSTITUTION
C

THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT PROCEEDED TO

PROMULGATE ITS QUESTIONED DECISION (ANNEX "C", PETITION) DESPITE IT OWN
RECOGNITION THAT A THRESHOLD ISSUE OF JURISDICTION HAS TO BE JUDICIOUSLY
REVIEWED AGAIN, ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION,
THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION, AND SERIOUS ERROR IN
DIRECTING WITHOUT NOTICE THE SUSPENSION OF THE PROCLAMATION OF THE
PETITIONER AS THE WINNING CONGRESSIONAL CANDIDATE AND DESPITE THE
MINISTERIAL NATURE OF SUCH DUTY TO PROCLAIM (PENDING THE FINALITY OF THE
DISQUALIFICATION CASE AGAINST THE PETITIONER) IF ONLY NOT TO THWART THE
PEOPLE'S WILL.
D
THE COMELEC'S FINDING OF NON-COMPLIANCE WITH THE RESIDENCY
REQUIREMENT OF ONE YEAR AGAINST THE PETITIONER IS CONTRARY TO EVIDENCE
AND TO APPLICABLE LAWS AND JURISPRUDENCE.
E
IN ANY CASE, THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE THE
LEGAL IMPOSSIBILITY OF ENFORCING THE ONE YEAR RESIDENCY REQUIREMENT OF
CONGRESSIONAL CANDIDATES IN NEWLY CREATED POLITICAL DISTRICTS WHICH
WERE ONLY EXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTION AND
BARELY FOUR MONTHS IN THE CASE OF PETITIONER'S DISTRICT IN MAKATI OF
CONGRESSIONAL.
F
THE COMELEC COMMITTED SERIOUS ERROR AMOUNTING TO LACK OF JURISDICTION
WHEN IT ORDERED THE BOARD OF CANVASSERS TO "DETERMINE AND PROCLAIM
THE WINNER OUT OF THE REMAINING QUALIFIED CANDIDATES" AFTER THE
ERRONEOUS DISQUALIFICATION OF YOUR PETITIONER IN THAT SUCH DIRECTIVE IS
IN TOTAL DISREGARD OF THE WELL SETTLED DOCTRINE THAT A SECOND PLACE
CANDIDATE OR PERSON WHO WAS REPUDIATED BY THE ELECTORATE IS A LOSER
AND CANNOT BE PROCLAIMED AS SUBSTITUTE
WINNER. 15
I
In his first three assignments of error, petitioner vigorously contends that after the
May 8, 1995 elections, the COMELEC lost its jurisdiction over the question of
petitioner's qualifications to run for member of the House of Representatives. He
claims that jurisdiction over the petition for disqualification is exclusively lodged
with the House of Representatives Electoral Tribunal (HRET). Given the yet
unresolved question of jurisdiction, petitioner avers that the COMELEC committed
serious error and grave abuse of discretion in directing the suspension of his
proclamation as the winning candidate in the Second Congressional District of
Makati City. We disagree.

Petitioner conveniently confuses the distinction between an unproclaimed candidate

to the House of Representatives and a member of the same. Obtaining the highest
number of votes in an election does not automatically vest the position in the
winning candidate. Section 17 of Article VI of the 1987 Constitution reads:
The Senate and the House of Representatives shall have an Electoral Tribunal which
shall be the sole judge of all contests relating to the election, returns and
qualifications of their respective Members.
Under the above-stated provision, the electoral tribunal clearly assumes jurisdiction
over all contests relative to the election, returns and qualifications of candidates for
either the Senate or the House only when the latter become members of either the
Senate or the House of Representatives. A candidate who has not been proclaimed
16 and who has not taken his oath of office cannot be said to be a member of the
House of Representatives subject to Section. 17 of the Constitution. While the
proclamation of a winning candidate in an election is ministerial, B.P. 881 in
conjunction with Sec 6 of R.A. 6646 allows suspension of proclamation under
circumstances mentioned therein. Thus, petitioner's contention that "after the
conduct of the election and (petitioner) has been established the winner of the
electoral exercise from the moment of election, the COMELEC is automatically
divested of authority to pass upon the question of qualification" finds no basis,
because even after the elections the COMELEC is empowered by Section 6 (in
relation to Section 7) of R.A. 6646 to continue to hear and decide questions relating
to qualifications of candidates Section 6 states:
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 guilt is
strong.
Under the above-quoted provision, not only is a disqualification case against a
candidate allowed to continue after the election (and does not oust the COMELEC of
its jurisdiction), but his obtaining the highest number of votes will not result in the
suspension or termination of the proceedings against him when the evidence of
guilt is strong. While the phrase "when the evidence of guilt is strong" seems to
suggest that the provisions of Section 6 ought to be applicable only to
disqualification cases under Section 68 of the Omnibus Election Code, Section 7 of
R.A. 6646 allows the application of the provisions of Section 6 to cases involving
disqualification based on ineligibility under Section 78 of B.P. 881. Section 7 states:
Sec. 7.
Petition to Deny Due Course or to Cancel a Certificate of Candidacy.
The procedure hereinabove provided shall apply to petition to deny due course to or
cancel a certificate of candidacy based on Sec. 78 of Batas Pambansa 881.
II

We agree with COMELEC's contention that in order that petitioner could qualify as a
candidate for Representative of the Second District of Makati City the latter "must
prove that he has established not just residence but domicile of choice. 17
The Constitution requires that a person seeking election to the House of
Representatives should be a resident of the district in which he seeks election for a
period of not less than one (l) year prior to the elections. 18 Residence, for election
law purposes, has a settled meaning in our jurisdiction.
In Co v. Electoral Tribunal of the House of Representatives 19 this Court held that
the term "residence" has always been understood as synonymous with "domicile"
not only under the previous Constitutions but also under the 1987 Constitution. The
Court there held: 20
The deliberations of the Constitutional Commission reveal that the meaning of
residence vis-a-vis the qualifications of a candidate for Congress continues to
remain the same as that of domicile, to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional
Convention, there was an attempt to require residence in the place not less than
one year immediately preceding the day of elections. So my question is: What is the
Committee's concept of domicile or constructive residence?
Mr. Davide: Madame President, insofar as the regular members of the National
Assembly are concerned, the proposed section merely provides, among others, and
a resident thereof', that is, in the district, for a period of not less than one year
preceding the day of the election. This was in effect lifted from the 1973
Constitution, the interpretation given to it was domicile (emphasis ours) Records of
the 1987 Constitutional Convention, Vol. II, July 22, 1986, p. 87).
xxx

xxx

xxx

Mrs. Rosario Braid: The next question is on section 7, page 2. I think Commissioner
Nolledo has raised the same point that "resident" has been interpreted at times as a
matter of intention rather than actual residence.
Mr. De Los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentlemen consider at the proper time to go
back to actual residence rather than mere intention to reside?
Mr. De los Reyes: But We might encounter some difficulty especially considering
that the provision in the Constitution in the Article on Suffrage says that Filipinos
living abroad may vote as enacted by law. So, we have to stick to the original
concept that it should be by domicile and not physical and actual residence.
(Records of the 1987 Constitutional Commission, Vol. II, July 22, 1986, p. 110).
The framers of the Constitution adhered to the earlier definition given to the word
"residence" which regarded it as having the same meaning as domicile.

Clearly, the place "where a party actually or constructively has his permanent
home," 21 where he, no matter where he may be found at any given time,
eventually intends to return and remain, i.e., his domicile, is that to which the
Constitution refers when it speaks of residence for the purposes of election law. The
manifest purpose of this deviation from the usual conceptions of residency in law as
explained in Gallego vs. Vera at 22 is "to exclude strangers or newcomers unfamiliar
with the conditions and needs of the community" from taking advantage of
favorable circumstances existing in that community for electoral gain. While there is
nothing wrong with the practice of establishing residence in a given area for
meeting election law requirements, this nonetheless defeats the essence of
representation, which is to place through the assent of voters those most cognizant
and sensitive to the needs of a particular district, if a candidate falls short of the
period of residency mandated by law for him to qualify. That purpose could be
obviously best met by individuals who have either had actual residence in the area
for a given period or who have been domiciled in the same area either by origin or
by choice. It would, therefore, be imperative for this Court to inquire into the
threshold question as to whether or not petitioner actually was a resident for a
period of one year in the area now encompassed by the Second Legislative District
of Makati at the time of his election or whether or not he was domiciled in the same.
As found by the COMELEC en banc petitioner in his Certificate of Candidacy for the
May 11, 1992 elections, indicated not only that he was a resident of San Jose,
Concepcion, Tarlac in 1992 but that he was a resident of the same for 52 years
immediately preceding that election. 23 At the time, his certificate indicated that he
was also a registered voter of the same district. 24 His birth certificate places
Concepcion, Tarlac as the birthplace of both of his parents Benigno and Aurora. 25
Thus, from data furnished by petitioner himself to the COMELEC at various times
during his political career, what stands consistently clear and unassailable is that
this domicile of origin of record up to the time of filing of his most recent certificate
of candidacy for the 1995 elections was Concepcion, Tarlac.
Petitioner's alleged connection with the Second District of Makati City is an alleged
lease agreement of condominium unit in the area. As the COMELEC, in its disputed
Resolution noted:
The intention not to establish a permanent home in Makati City is evident in his
leasing a condominium unit instead of buying one. While a lease contract maybe
indicative of respondent's intention to reside in Makati City it does not engender the
kind of permanency required to prove abandonment of one's original domicile
especially since, by its terms, it is only for a period of two (2) years, and respondent
Aquino himself testified that his intention was really for only one (l) year because he
has other "residences" in Manila or Quezon City. 26
While property ownership is not and should never be an indicia of the right to vote
or to be voted upon, the fact that petitioner himself claims that he has other
residences in Metro Manila coupled with the short length of time he claims to be a
resident of the condominium unit in Makati (and the fact, of his stated domicile in
Tarlac) "indicate that the sole purpose of (petitioner) in transferring his physical
residence" 27 is not to acquire's new residence or domicile "but only to qualify as a

candidate for Representative of the Second District of Makati City." 28 The absence
of clear and positive proof showing a successful abandonment of domicile under the
conditions stated above, the lack of identification sentimental, actual or
otherwise with the area, and the suspicious circumstances under which the lease
agreement was effected all belie petitioner's claim of residency for the period
required by the Constitution, in the Second District of Makati. As the COMELEC en
banc emphatically pointed out:
[T]he lease agreement was executed mainly to support the one year residence
requirement as a qualification for a candidate of Representative, by establishing a
commencement date of his residence. If a perfectly valid lease agreement cannot,
by itself establish; a domicile of choice, this particular lease agreement cannot do
better. 29
Moreover, his assertion that he has transferred his domicile from Tarlac to Makati is
a bare assertion which is hardly supported by the facts in the case at bench.
Domicile of origin is not easily lost. To successfully effect a change of domicile,
petitioner must prove an actual removal or an actual change of domicile; a bona
fide intention of abandoning the former place of residence and establishing a new
one and definite acts which correspond with the purpose. 30 These requirements
are hardly met by the evidence adduced in support of petitioner's claims of a
change of domicile from Tarlac to the Second District of Makati. In the absence of
clear and positive proof, the domicile of origin be deemed to continue requirements
are hardly met by the evidence adduced in support of petitioner's claims of a
change of domicile from Tarlac to the Second District of Makati. In the absence of
clear and positive proof, the domicile of origin should be deemed to continue.
Finally, petitioner's submission that it would be legally impossible to impose the one
year residency requirement in a newly created political district is specious and lacks
basis in logic. A new political district is not created out of thin air. It is carved out
from part of a real and existing geographic area, in this case the old Municipality of
Makati. That people actually lived or were domiciled in the area encompassed by
the new Second District cannot be denied. Modern-day carpetbaggers cannot be
allowed take advantage of the creation of new political districts by suddenly
transplanting themselves in such new districts, prejudicing their genuine residents
in the process of taking advantage of existing conditions in these areas. It will be
noted, as COMELEC did in its assailed resolution, that petitioner was disqualified
from running in the Senate because of the constitutional two-term limit, and had to
shop around for a place where he could run for public office. Nothing wrong with
that, but he must first prove with reasonable certainty that he has effected a
change of residence for election law purposes for the period required by law. This he
has not effectively done.
III
The next issue here is whether or not the COMELEC erred in issuing it Order
instructing the Board of Canvassers of Makati City to proclaim as winner the
candidate receiving the next higher number of votes. The answer must be in the
negative.

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

Sound policy dictates that public elective offices are filled by those who have
received the highest number of votes cast in the election for that office, and it is
fundamental idea in all republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the elections. (20 Corpus Juris 2nd, S 243, p.
676.)
However, in Santos v. Comelec 35 we made a turnabout from our previous ruling in
Geronimo v. Ramos and pronounced that "votes cast for a disqualified candidate fall
within the category of invalid or non-existent votes because a disqualified candidate
is no candidate at all in the eyes of the law," reverting to our earlier ruling in Ticson
v. Comelec.
In the more recent cases of Labo, Jr. v. Comelec 36 Abella v. Comelec; 37 and Benito
v. Comelec, 38 this Court reiterated and upheld the ruling in Topacio v. Paredes and
Geronimo v. Ramos to the effect that the ineligibility of a candidate receiving the
next higher number of votes to be declared elected, and that a minority or defeated
candidate cannot be declared elected to the office. In these cases, we put emphasis
on our pronouncement in Geronimo v. Ramos that:
The fact that a candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he was elected does
not necessarily entitle the candidate who obtained the second highest number of
votes to be declared the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which clearly asserts a
contrary political and legislative policy on the matter, if the votes were cast in
sincere belief that candidate was alive, qualified, or eligible; they should not be
treated as stray, void or meaningless.
Synthesizing these rulings we declared in the latest case of Labo, Jr. v. COMELEC
that: 39
While Ortega may have garnered the second highest number of votes for the office
of city mayor, the fact remains that he was not the choice of the sovereign will.
Petitioner Labo was overwhelmingly voted by the electorate for the office of mayor
in the belief that he was then qualified to serve the people of Baguio City and his
subsequent disqualification does not make respondent Ortega the mayor-elect. This
is the import of the recent case of Abella v. Comelec (201 SCRA 253 [1991]),
wherein we held that:
While it is true that SPC No. 88-546 was originally a petition to deny due course to
the certificate of candidacy of Larrazabal and was filed before Larrazabal could be
proclaimed the fact remains that the local elections of Feb. 1, 1988 in the province
of Leyte proceeded with Larrazabal considered as a bona fide candidate. The voters
of the province voted for her in the sincere belief that she was a qualified candidate
for the position of governor. Her votes was counted and she obtained the highest
number of votes. The net effect is that petitioner lost in the election. He was
repudiated by the electorate. . . What matters is that in the event a candidate for an
elected position who is voted for and who obtains the highest number of votes is

disqualified for not possessing the eligibility, requirements at the time of the
election as provided by law, the candidate who obtains the second highest number
of votes for the same position cannot assume the vacated position. (Emphasis
supplied).
Our ruling in Abella applies squarely to the case at bar and we see no compelling
reason to depart therefrom. Like Abella, petitioner Ortega lost in the election. He
was repudiated by the electorate. He was obviously not the choice of the people of
Baguio City.
Thus, while respondent Ortega (G.R. No. 105111) originally filed a disqualification
case with the Comelec (docketed as SPA-92-029) seeking to deny due course to
petitioner's (Labo's) candidacy, the same did not deter the people of Baguio City
from voting for petitioner Labo, who, by then, was allowed by the respondent
Comelec to be voted upon, the resolution for his disqualification having yet to attain
the degree of finality (Sec. 78, Omnibus Election Code).
And in the earlier case of Labo v. Comelec. (supra), We held:
Finally, there is the question of whether or not the private respondent, who filed the
quo warranto petition, can replace the petitioner as mayor. He cannot. The simple
reason is that as he obtained only the second highest number of votes in the
election, he was obviously not the choice of the people of Baguio City.
The latest ruling of the Court in this issue is Santos v. Commission on Election, (137
SCRA 740) decided in 1985. In that case, the candidate who placed second was
proclaimed elected after the votes for his winning rival, who was disqualified as a
turncoat and considered a non-candidate, were all disregarded as stray. In effect,
the second placer won by default. That decision was supported by eight members of
the Court then (Cuevas J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova,
De la Fuente, Alampay, and Aquino, JJ., concurring) with three dissenting
(Teehankee, acting C.J., Abad Santos and Melencio-Herrera) and another two
reserving their votes (Plana and Gutierrez, Jr.). One was on official leave (Fernando,
C.J.)
Re-examining that decision, the Court finds, and so holds, that it should be reversed
in favor of the earlier case of Geronimo v. Santos (136 SCRA 435), which represents
the more logical and democratic rule. That case, which reiterated the doctrine first
announced in 1912 in Topacio vs. Paredes (23 Phil. 238) was supported by ten
members of the Court. . . .
The rule, therefore, is: the ineligibility of a candidate receiving majority votes does
not entitle the eligible candidate receiving the next highest number of votes to be
declared elected. A minority or defeated candidate cannot be deemed elected to
the office.
Indeed, this has been the rule in the United States since 1849 (State ex rel. Dunning
v. Giles, 52 Am. Dec. 149).

It is therefore incorrect to argue that since a candidate has been disqualified, the
votes intended for the disqualified candidate should, in effect, be considered null
and void. This would amount to disenfranchising the electorate in whom,
sovereignty resides. At the risk of being repetitious, the people of Baguio City opted
to elect petitioner Labo bona fide without any intention to missapply their franchise,
and in the honest belief that Labo was then qualified to be the person to whom they
would entrust the exercise of the powers of the government. Unfortunately,
petitioner Labo turned out to be disqualified and cannot assume the office.
Whether or not the candidate whom the majority voted for can or cannot be
installed, under no circumstances can a minority or defeated candidate be deemed
elected to the office. Surely, the 12,602 votes cast for petitioner Ortega is not a
larger number than the 27,471 votes cast for petitioner Labo (as certified by the
Election Registrar of Baguio City; rollo, p. 109; G.R. No. 105111).
This, it bears repeating, expresses the more logical and democratic view. We
cannot, in another shift of the pendulum, subscribe to the contention that the
runner-up in an election in which the winner has been disqualified is actually the
winner among the remaining qualified candidates because this clearly represents a
minority view supported only by a scattered number of obscure American state and
English court decisions. 40 These decisions neglect the possibility that the runnerup, though obviously qualified, could receive votes so measly and insignificant in
number that the votes they receive would be tantamount to rejection. Theoretically,
the "second placer" could receive just one vote. In such a case, it is absurd to
proclaim the totally repudiated candidate as the voters' "choice." Moreover, even in
instances where the votes received by the second placer may not be considered
numerically insignificant, voters preferences are nonetheless so volatile and
unpredictable that the result among qualified candidates, should the equation
change because of the disqualification of an ineligible candidate, would not be selfevident. Absence of the apparent though ineligible winner among the choices could
lead to a shifting of votes to candidates other than the second placer. By any
mathematical formulation, the runner-up in an election cannot be construed to have
obtained a majority or plurality of votes cast where an "ineligible" candidate has
garnered either a majority or plurality of the votes.
In fine, we are left with no choice but to affirm the COMELEC's conclusion declaring
herein petitioner ineligible for the elective position of Representative of Makati City's
Second District on the basis of respondent commission's finding that petitioner lacks
the one year residence in the district mandated by the 1987 Constitution. A
democratic government is necessarily a government of laws. In a republican
government those laws are themselves ordained by the people. Through their
representatives, they dictate the qualifications necessary for service in government
positions. And as petitioner clearly lacks one of the essential qualifications for
running for membership in the House of Representatives, not even the will of a
majority or plurality of the voters of the Second District of Makati City would
substitute for a requirement mandated by the fundamental law itself.
WHEREFORE, premises considered, the instant petition is hereby DISMISSED. Our
Order restraining respondent COMELEC from proclaiming the candidate garnering

the next highest number of votes in the congressional elections for the Second
District of Makati City is made PERMANENT.
SO ORDERED.
Regalado, Melo, Puno and Hermosisima, Jr., JJ., concur.
Feliciano, J., is on leave.
Limbona v. Comelec
EN BANC
NORLAINIE MITMUG LIMBONA,
Petitioner,

- versus -

COMMISSION ON ELECTIONS and MALIK BOBBY T.

ALINGAN,
Respondents.

G.R. No. 186006

Present:
PUNO, C.J.,*
QUISUMBING, Acting C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,*
NACHURA,
LEONARDO-DE CASTRO,
BRION,

PERALTA,
BERSAMIN,
DEL CASTILLO,** and
ABAD, JJ.
Promulgated:
October 16, 2009
x-----------------------------------------------------------------------------------------x
RESOLUTION
NACHURA, J.:
Before this Court is a Petition for Certiorari under Rule 65, in relation to Rule 64,
assailing the Resolution[1] dated November 23, 2007 of the Second Division of the
Commission on Elections (Comelec) and the Resolution[2] of the Comelec En Banc
dated January 14, 2009 in SPA No. 07-621.
The factual and procedural antecedents are as follows:
Prior to the May 14, 2007 elections, petitioner Norlainie Mitmug Limbona and her
husband, Mohammad Exchan Limbona, each filed a Certificate of Candidacy for
Mayor of Pantar, Lanao del Norte. On April 2, 2007, private respondent Malik
Bobby Alingan filed a disqualification case against Mohammad before the
Provincial Election Supervisor of Lanao del Norte. On April 12, 2007, Alingan also
filed a petition for disqualification against petitioner.[3] Both disqualification cases
were premised on the ground that petitioner and her husband lacked the one-year
residency requirement and both were not registered voters of Pantar.[4]
On April 17, 2007, petitioner executed an Affidavit of Withdrawal of her certificate of
candidacy,[5] which was subsequently approved by the Comelec.[6] Petitioner also
filed a Motion to Dismiss the disqualification case against her for being moot and
academic.[7]
On election day, May 14, 2007, the Comelec resolved to postpone the elections in
Pantar because there was no final list of voters yet. A special election was
scheduled for July 23, 2007.[8]
On May 24, 2007, the Comelec First Division promulgated a Resolution disqualifying
Mohammad as candidate for mayor for failure to comply with the one-year
residency requirement.[9] Petitioner then filed her Certificate of Candidacy as
substitute candidate on July 21, 2007. On July 23, 2007, Alingan filed a petition for
disqualification against petitioner for, among others, lacking the one-year residency
requirement (SPA No. 07-621).[10]
In a Resolution in SPA No. 07-621[11] dated November 23, 2007, the Comelec
Second Division ruled that petitioner was disqualified from running for Mayor of

Pantar. The Comelec held that petitioner only became a resident of Pantar in
November 2006. It explained that petitioners domicile of origin was Maguing, Lanao
del Norte, her birthplace. When she got married, she became a resident of Barangay
Rapasun, Marawi City, where her husband was Barangay Chairman until November
2006. Barangay Rapasun, the Comelec said, was petitioners domicile by operation
of law under the Family Code. The Comelec found that the evidence petitioner
adduced to prove that she has abandoned her domicile of origin or her domicile in
Marawi City two years prior to the elections consisted mainly of self-serving
affidavits and were not corroborated by independent and competent evidence. The
Comelec also took note of its resolution in another case where it was found that
petitioner was not even a registered voter in Pantar. Petitioner filed a Motion for
Reconsideration.[12]
The Comelec resolved the motion in an En Banc Resolution dated January 14, 2009,
[13] affirming the Second Divisions Resolution disqualifying petitioner. The Comelec
said that the issue of whether petitioner has complied with the one-year residency
rule has been decided by the Supreme Court in Norlainie Mitmug Limbona v.
Commission on Elections and Malik Bobby T. Alingan promulgated on June 25,
2008. The Comelec noted that, in said case, the Supreme Court upheld the Comelec
First Divisions Decision in SPA No. 07-611 disqualifying petitioner from running for
mayor of Pantar for failure to comply with the residency requirement.
Petitioner is now before this Court assailing the Comelecs November 23, 2007 and
January 14, 2009 Resolutions. She posits that the Comelec erred in disqualifying her
for failure to comply with the one-year residency requirement. She alleges that in a
disqualification case against her husband filed by Nasser Macauyag, another
mayoralty candidate, the Comelec considered her husband as a resident of Pantar
and qualified to run for any elective office there. Petitioner avers that since her
husband was qualified to run in Pantar, she is likewise qualified to run.[14]
Petitioner also stresses that she was actually residing and was physically present in
that municipality for almost two years prior to the May 2007 elections. During the
time she had been residing in Pantar, she associated and mingled with residents
there, giving her ample time to know the needs, difficulties, aspirations, and
economic potential of the municipality. This, she said, is proof of her intention to
establish permanent residency there and her intent to abandon her domicile in
Marawi City.
She next argues that, even as her husband was Punong Barangay of Rapasun,
Marawi City, he never abandoned Pantar as his hometown and domicile of origin.
She avers that the performance of her husbands duty in Rapasun did not prevent
the latter from having his domicile elsewhere. Hence, it was incorrect for the
Comelec to have concluded that her husband changed his domicile only on
November 11, 2006.[15] At the very least, petitioner says, the Comelecs conflicting
resolutions on the issue of her husbands residence should create a doubt that
should be resolved in her and her husbands favor.[16]
She further contends that to disqualify her would disenfranchise the voters of
Pantar, the overwhelming majority of whom elected her as mayor during the July 23,
2007 special elections.[17]

The Comelec, through the Office of the Solicitor General (OSG), filed its
Comment, insisting that the Comelec correctly disqualified petitioner from running
as mayor for lack of the one-year residency requirement.[18] The OSG argues that
there is no evidence that petitioner has abandoned her domicile of origin or her
domicile in Marawi City.[19] Moreover, the OSG said that this Court has ruled on the
issue of petitioners residency in Norlainie Mitmug Limbona v. Commission on
Elections and Malik Bobby T. Alingan.[20] Lastly, the OSG contends that the
Comelecs ruling in Nasser A. Macauyag v. Mohammad Limbona is not binding on
petitioner because she was not a party to the case.[21]
We dismiss the Petition.
The issue of petitioners disqualification for failure to comply with the oneyear residency requirement has been resolved by this Court in Norlainie Mitmug
Limbona v. Commission on Elections and Malik Bobby T. Alingan.[22] This case
stemmed from the first disqualification case filed by herein respondent against
petitioner, docketed as SPA No. 07-611. Although the petitioner had withdrawn the
Certificate of Candidacy subject of the disqualification case, the Comelec resolved
the petition and found that petitioner failed to comply with the one-year residency
requirement, and was, therefore, disqualified from running as mayor of Pantar.
A unanimous Court upheld the findings of the Comelec, to wit:
WHEREFORE, the petition for certiorari is DISMISSED. The September 4, 2007
Resolution of the Commission on Elections in SPA Case No. 07-611 disqualifying
petitioner Norlainie Mitmug Limbona from running for office of the Mayor of Pantar,
Lanao del Norte, and the January 9, 2008 Resolution denying the motion for
reconsideration, are AFFIRMED. In view of the permanent vacancy in the Office of
the Mayor, the proclaimed Vice-Mayor shall SUCCEED as Mayor. The temporary
restraining order issued on January 29, 2008 is ordered LIFTED.
SO ORDERED.[23]
The Court found that petitioner failed to satisfy the one-year residency requirement.
It held:
The Comelec correctly found that petitioner failed to satisfy the one-year residency
requirement. The term residence as used in the election law is synonymous with
domicile, which imports not only intention to reside in a fixed place but also
personal presence in that place, coupled with conduct indicative of such intention.
The manifest intent of the law in fixing a residence qualification is to exclude a
stranger or newcomer, unacquainted with the conditions and needs of a community
and not identified with the latter, from an elective office to serve that community.
For purposes of election law, the question of residence is mainly one of
intention. There is no hard and fast rule by which to determine where a person
actually resides. Three rules are, however, well established: first, that a man must

have a residence or domicile somewhere; second, that where once established it

remains until a new one is acquired; and third, a man can have but one domicile at
a time.
In order to acquire a domicile by choice, there must concur (1) residence or bodily
presence in the new locality, (2) an intention to remain there, and (3) an intention to
abandon the old domicile. A persons domicile once established is considered to
continue and will not be deemed lost until a new one is established.
To successfully effect a change of domicile one must demonstrate an actual removal
or an actual change of domicile; a bona fide intention of abandoning the former
place of residence and establishing a new one, and definite acts which correspond
with the purpose. In other words, there must basically be animus manendi coupled
with animus non revertendi. The purpose to remain in or at the domicile of choice
must be for an indefinite period of time; the change of residence must be voluntary;
and the residence at the place chosen for the new domicile must be actual.
Petitioners claim that she has been physically present and actually residing
in Pantar for almost 20 months prior to the elections, is self-serving and
unsubstantiated. As correctly observed by the Comelec:
In the present case, the evidence adduced by respondent, which consists merely of
self-serving affidavits cannot persuade Us that she has abandoned her domicile of
origin or her domicile in Marawi City. It is alleged that respondent has been
staying, sleeping and doing business in her house for more than 20 months in
Lower Kalanganan and yet, there is no independent and competent evidence that
would corroborate such statement.
Further, We find no other act that would indicate respondents intention to stay in
Pantar for an indefinite period of time. The filing of her Certificate of Candidacy in
Pantar, standing alone, is not sufficient to hold that she has chosen Pantar as her
new residence. We also take notice of the fact that in SPA No. 07-611, this
Commission has even found that she is not a registered voter in the said
municipality warranting her disqualification as a candidate.
We note the findings of the Comelec that petitioners domicile of origin is Maguing,
Lanao del Norte, which is also her place of birth; and that her domicile by operation
of law (by virtue of marriage) is Rapasun, Marawi City. The Comelec found that
Mohammad, petitioners husband, effected the change of his domicile in favor of
Pantar, Lanao del Norte only on November 11, 2006. Since it is presumed that the
husband and wife live together in one legal residence, then it follows that petitioner
effected the change of her domicile also on November 11, 2006. Articles 68 and 69
of the Family Code provide:
Art. 68. The husband and wife are obliged to live together, observe mutual love,
respect and fidelity, and render mutual help and support.
Art. 69.
The husband and wife shall fix the family domicile.
In case of
disagreement, the court shall decide. The court may exempt one spouse from living
with the other if the latter should live abroad or there are other valid and compelling

reasons for the exemption. However, such exemption shall not apply if the same is
not compatible with the solidarity of the family. (Emphasis ours)
Considering that petitioner failed to show that she maintained a separate residence
from her husband, and as there is no evidence to prove otherwise, reliance on these
provisions of the Family Code is proper and is in consonance with human
experience.
Thus, for failure to comply with the residency requirement, petitioner is disqualified
to run for the office of mayor of Pantar, Lanao del Norte. x x x.[24]
Petitioners Motion for Reconsideration of the above-quoted Decision was
denied with finality on March 3, 2009.[25] Petitioner filed another Motion for
Reconsideration,[26] which the Court treated as a Second Motion for
Reconsideration and, consequently, denied in a Resolution dated June 2, 2009.[27]
Of late, petitioner has filed a Manifestation that raises yet again the issues already
resolved in the petition and which the Court has, accordingly, merely noted without
action.[28] Thus, our ruling therein has now attained finality.
Consequently, the issue of petitioners compliance with the one-year residency
requirement is now settled. We are bound by this Courts ruling in the earlier
Limbona case where the issue was squarely raised and categorically resolved. We
cannot now rule anew on the merits of this case, especially since the present
Petition merely restates issues already passed upon by the Comelec and affirmed by
this Court.
WHEREFORE, the foregoing premises considered, the Petition is DISMISSED and the
Resolution dated November 23, 2007 of the Second Division of the Commission on
Elections and the Resolution of the Commission on Elections En Banc dated January
14, 2009 in SPA No. 07-621 are AFFIRMED.
SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

Labo v. Comelec
G.R. No. 86564
August 1, 1989
RAMON L. LABO, JR., petitioner,
vs.

THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L. LARDIZABAL,

respondents
Estelito P. Mendoza for petitioner.
Rillera and Quintana for private respondent.

CRUZ, J.:
The petitioner asks this Court to restrain the Commission on Elections from looking
into the question of his citizenship as a qualification for his office as Mayor of Baguio
City. The allegation that he is a foreigner, he says, is not the issue. The issue is
whether or not the public respondent has jurisdiction to conduct any inquiry into
this matter, considering that the petition for quo warranto against him was not filed
on time.
It is noteworthy that this argument is based on the alleged tardiness not of the
petition itself but of the payment of the filing fee, which the petitioner contends was
an indispensable requirement. The fee is, curiously enough, all of P300.00 only. This
brings to mind the popular verse that for want of a horse the kingdom was lost. Still,
if it is shown that the petition was indeed filed beyond the reglementary period,
there is no question that this petition must be granted and the challenge abated.
The petitioner's position is simple. He was proclaimed mayor-elect of Baguio City, on
January 20, 1988. The petition for quo warranto was filed by the private respondent
on January 26, 1988, but no filing fee was paid on that date. This fee was finally
paid on February 10, 1988, or twenty-one days after his proclamation. As the
petition by itself alone was ineffectual without the filing fee, it should be deemed
filed only when the fee was paid. This was done beyond the reglementary period
provided for under Section 253 of the Omnibus Election Code reading as follows:
SEC. 253. Petition for quo warranto. Any voter contesting the election of a
Member of the Batasang Pambansa, regional, provincial, or city officer on the
ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a
sworn petition for quo warranto with the Commission within ten days after the
proclamation of the result of the election.
The petitioner adds that the payment of the filing fee is required under Rule 36,
Section 5, of the Procedural Rules of the COMELEC providing that
Sec. 5.
No petition for quo warranto shall be given due course without the
payment of a filing fee in the amount of Three Hundred Pesos (P300.00) and the
legal research fee as required by law.
and stresses that there is abundant jurisprudence holding that the payment of the
filing fee is essential to the timeliness of the filling of the petition itself. He cites
many rulings of the Court to this effect, specifically Manchester v. Court of Appeals.
1

For his part, the private respondent denies that the filing fee was paid out of time.
In fact he says, it was flied ahead of time. His point is that when he filed his "Petition
for Quo Warranto with Prayer for Immediate Annulment of Proclamation and
Restraining Order or Injunction" on January 26, 1988, the COMELEC treated it as a
pre-proclamation controversy and docketed it as SPC Case No. 88-288. No docket
fee was collected although it was offered. It was only on February 8, 1988, that the
COMELEC decided to treat his petition as solely for quo warranto and re-docketed it
as EPC Case No. 88-19, serving him notice on February 10, 1988. He immediately
paid the filing fee on that date.
The private respondent argues further that during the period when the COMELEC
regarded his petition as a pre-proclamation controversy, the time for filing an
election protest or quo warranto proceeding was deemed suspended under Section
248 of the Omnibus Election Code. 2 At any rate, he says, Rule 36, Section 5, of the
COMELEC Rules of Procedure cited by the petitioner, became effective only on
November 15, 1988, seven days after publication of the said Rules in the Official
Gazette pursuant to Section 4, Rule 44 thereof. 3 These rules could not retroact to
January 26,1988, when he filed his petition with the COMELEC.
In his Reply, the petitioner argues that even if the Omnibus Election Code did not
require it, the payment of filing fees was still necessary under Res. No. 1996 and,
before that, Res. No. 1450 of the respondent COMELEC, promulgated on January 12,
1988, and February 26, 1980, respectively. To this, the private respondent counters
that the latter resolution was intended for the local elections held on January 30,
1980, and did not apply to the 1988 local elections, which were supposed to be
governed by the first-mentioned resolution. However, Res. No. 1996 took effect only
on March 3, 1988, following the lapse of seven days after its publication as required
by RA No. 6646, otherwise known as the Electoral Reform Law of 1987, which
became effective on January 5, 1988. Its Section 30 provides in part:
Sec. 30.
Effectivity of Regulations and Orders of the Commission. The rules
and regulations promulgated by the Commission shall take effect on the seventh
day after their publication in the Official Gazette or in at least (2) daily newspapers
of general circulation in the Philippines.
The Court has considered the arguments of the parties and holds that the petition
for quo warranto was filed on time. We agree with the respondents that the fee was
paid during the ten-day period as extended by the pendency of the petition when it
was treated by the COMELEC as a pre-proclamation proceeding which did not
require the payment of a filing fee. At that, we reach this conclusion only on the
assumption that the requirement for the payment of the fees in quo warranto
proceedings was already effective. There is no record that Res. No. 1450 was even
published; and as for Res. No. 1996, this took effect only on March 3, 1988, seven
days after its publication in the February 25, 1988 issues of the Manila Chronicle
and the Philippine Daily Inquirer, or after the petition was filed.
The petitioner forgets Ta;ada v. Tuvera 4 when he argues that the resolutions
became effective "immediately upon approval" simply because it was so provided

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

procedural steps which would not anyway affect substantially the merits of their
respective claims. 6
xxx
While it is the fault of the petitioner for appealing to the wrong court and thereby
allowing the period for appeal to lapse, the more correct procedure was for the
respondent court to forward the case to the proper court which was the Court of
Appeals for appropriate action. Considering, however, the length of time that this
case has been pending, we apply the rule in the case of Del Castillo v. Jaymalin,
(112 SCRA 629) and follow the principle enunciated in Alger Electric, Inc. v. Court of
Appeals, (135 SCRA 37) which states:
... it is a cherished rule of procedure for this Court to always strive to settle the
entire controversy in a single proceeding leaving no root or branch to bear the
seeds of future litigation. No useful purpose will be served if this case is remanded
to the trial court only to have its decision raised again to the Intermediate Appellate
Court and from there to this Court. (p. 43)
Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al. (G.R.
No. 50141, January 29, 1988), we stated that:
... But all those relevant facts are now before this Court. And those facts dictate the
rendition of a verdict in the petitioner's favor. There is therefore no point in referring
the case back to the Court of Appeals. The facts and the legal propositions involved
will not change, nor should the ultimate judgment. Considerable time has already
elapsed and, to serve the ends of justice, it is time that the controversy is finally laid
to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v. Paredes, 108 Phil. 57; Lianga
Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v. Heirs of Chigas, 98
SCRA 575; Francisco v. City of Davao, 12 SCRA 628; Valencia v. Mabilangan, 105
Phil. 162).lwph1.t Sound practice seeks to accommodate the theory which
avoids waste of time, effort and expense, both to the parties and the government,
not to speak of delay in the disposal of the case (cf. Fernandez v. Garcia, 92 Phil.
592, 597). A marked characteristic of our judicial set-up is that where the dictates of
justice so demand ... the Supreme Court should act, and act with finality.' (Li Siu Liat
v. Republic, 21 SCRA 1039, 1046, citing Samal v. CA, 99 Phil. 230 and U.S. v.
Gimenez, 34 Phil. 74). In this case, the dictates of justice do demand that this Court
act, and act with finality. 7
xxx
Remand of the case to the lower court for further reception of evidence is not
necessary where the court is in a position to resolve the dispute based on the
records before it. On many occasions, the Court, in the public interest and the
expeditious administration of justice, has resolved actions on the merits instead of
remanding them to the trial court for further proceedings, such as where the ends of
justice would not be subserved by the remand of the case or when public interest
demands an early disposition of the case or where the trial court had already
received all the evidence of the parties. 8

This course of action becomes all the more justified in the present case where, to
repeat for stress, it is claimed that a foreigner is holding a public office.
We also note in his Reply, the petitioner says:
In adopting private respondent's comment, respondent COMELEC implicitly adopted
as "its own" private respondent's repeated assertion that petitioner is no longer a
Filipino citizen. In so doing, has not respondent COMELEC effectively disqualified
itself, by reason of prejudgment, from resolving the petition for quo warranto filed
by private respondent still pending before it? 9
This is still another reason why the Court has seen fit to rule directly on the merits
of this case.
Going over the record, we find that there are two administrative decisions on the
question of the petitioner's citizenship. The first was rendered by the Commission
on Elections on May 12, 1982, and found the petitioner to be a citizen of the
Philippines. 10 The second was rendered by the Commission on Immigration and
Deportation on September 13, 1988, and held that the petitioner was not a citizen
of the Philippines. 11
The first decision was penned by then COMELEC Chigas, Vicente Santiago, Jr., with
Commissioners Pabalate Savellano and Opinion concurring in full and Commissioner
Bacungan concurring in the dismissal of the petition "without prejudice to the issue
of the respondent's citizenship being raised anew in a proper case." Commissioner
Sagadraca reserved his vote, while Commissioner Felipe was for deferring decision
until representations shall have been made with the Australian Embassy for official
verification of the petitioner's alleged naturalization as an Australian.
The second decision was unanimously rendered by Chairman Miriam DefensorSantiago and Commissioners Alano and Geraldez of the Commission on Immigration
and Deportation. It is important to observe that in the proceeding before the
COMELEC, there was no direct proof that the herein petitioner had been formally
naturalized as a citizen of Australia. This conjecture, which was eventually rejected,
was merely inferred from the fact that he had married an Australian citizen,
obtained an Australian passport, and registered as an alien with the CID upon his
return to this country in 1980.
On the other hand, the decision of the CID took into account the official statement
of the Australian Government dated August 12, 1984, through its Consul in the
Philippines, that the petitioner was still an Australian citizen as of that date by
reason of his naturalization in 1976. That statement 12 is reproduced in full as
follows:
I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a
certificate of appointment signed and sealed by the Australian Minister of State for
Foreign Affairs on 19 October 1983, and recognized as such by Letter of Patent
signed and sealed by the Philippines Acting Minister of Foreign Affairs on 23
November 1983, do hereby provide the following statement in response to the
subpoena Testificandum dated 9 April 1984 in regard to the Petition for

disqualification against RAMON LABO, JR. Y LOZANO (SPC No. 84-73), and do hereby
certify that the statement is true and correct.
STATEMENT
A)
RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in
the Philippines to an Australian citizen. As the spouse of an Australian citizen, he
was not required to meet normal requirements for the grant of citizenship and was
granted Australian citizenship by Sydney on 28 July 1976.
B)
Any person over the age of 16 years who is granted Australian citizenship
must take an oath of allegiance or make an affirmation of allegiance. The wording of
the oath of affirmation is: "I ..., renouncing all other allegiance ..." etc. This need not
necessarily have any effect on his former nationality as this would depend on the
citizenship laws of his former country.
C)
The marriage was declared void in the Australian Federal Court in Sydney on
27 June 1980 on the ground that the marriage had been bigamous.
D)

According to our records LABO is still an Australian citizen.

E)
Should he return to Australia, LABO may face court action in respect of
Section 50 of Australian Citizenship Act 1948 which relates to the giving of false or
misleading information of a material nature in respect of an application for
Australian citizenship. If such a prosecution was successful, he could be deprived of
Australian citizenship under Section 21 of the Act.
F)
There are two further ways in which LABO could divest himself of Australian
citizenship:
(i)
He could make a declaration of Renunciation of Australian citizenship under
Section 18 of the Australian Citizenship Act, or
(ii)
If he acquired another nationality, (for example, Filipino) by a formal and
voluntary act other than marriage, then he would automatically lose as Australian
citizenship under Section 17 of the Act.
IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF THE
AUSTRALIAN EMBASSY, MANILA, THIS 12th DAY OF APRIL 1984. DONE AT MANILA IN
THE PHILIPPINES.
(Signed) GRAHAM C. WEST Consul
This was affirmed later by the letter of February 1, 1988, addressed to the private
respondent by the Department of Foreign Affairs reading as follows: 13
Sir:

With reference to your letter dated 1 February 1988, I wish to inform you that
inquiry made with the Australian Government through the Embassy of the
Philippines in Canberra has elicited the following information:
1)

That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976.

2)
That prior to 17 July 1986, a candidate for Australian citizenship had to either
swear an oath of allegiance or make an affirmation of allegiance which carries a
renunciation of "all other allegiance.
Very truly yours,
For the Secretary of Foreign Affairs: (SGD) RODOLFO SEVERINO,
JR. Assistant Secretary
The decision also noted the oath of allegiance taken by every naturalized Australian
reading as follows:
OATH OF ALLEGIANCE
I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful
and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia,
Her heirs and successors according to law, and that I will faithfully observe the laws
of Australia and fulfill my duties as an Australian citizen. 14
and the Affirmation of Allegiance, which declares:
AFFIRMATION OF ALLEGIANCE
I, A.B., renouncing all other allegiance, solemnly and sincerely promise and declare
that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second,
Queen of Australia, Her heirs and successors according to law, and that I will
faithfully observe the Laws of Australia and fulfill my duties as an Australian citizen.
15
The petitioner does not question the authenticity of the above evidence. Neither
does he deny that he obtained Australian Passport No. 754705, which he used in
coming back to the Philippines in 1980, when he declared before the immigration
authorities that he was an alien and registered as such under Alien Certificate of
Registration No. B-323985. 16 He later asked for the change of his status from
immigrant to a returning former Philippine citizen and was granted Immigrant
Certificate of Residence No. 223809. 17 He also categorically declared that he was a
citizen of Australia in a number of sworn statements voluntarily made by him and.
even sought to avoid the jurisdiction of the barangay court on the ground that he
was a foreigner. 18
The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes"
that did not divest the petitioner of his citizenship, although, as earlier noted, not all
the members joined in this finding. We reject this ruling as totally baseless. The
petitioner is not an unlettered person who was not aware of the consequences of his
acts, let alone the fact that he was assisted by counsel when he performed these
acts.

The private respondent questions the motives of the COMELEC at that time and
stresses Labo's political affiliation with the party in power then, but we need not go
into that now.
There is also the claim that the decision can no longer be reversed because of the
doctrine of res judicata, but this too must be dismissed. This doctrine does not apply
to questions of citizenship, as the Court has ruled in several cases. 19 Moreover, it
does not appear that it was properly and seasonably pleaded, in a motion to dismiss
or in the answer, having been invoked only when the petitioner filed his reply 20 to
the private respondent's comment. Besides, one of the requisites of res judicata, to
wit, identity of parties, is not present in this case.
The petitioner's contention that his marriage to an Australian national in 1976 did
not automatically divest him of Philippine citizenship is irrelevant. There is no claim
or finding that he automatically ceased to be a Filipino because of that marriage. He
became a citizen of Australia because he was naturalized as such through a formal
and positive process, simplified in his case because he was married to an Australian
citizen. As a condition for such naturalization, he formally took the Oath of
Allegiance and/or made the Affirmation of Allegiance, both quoted above.
Renouncing all other allegiance, he swore "to be faithful and bear true allegiance to
Her Majesty Elizabeth the Second, Queen of Australia ..." and to fulfill his duties "as
an Australian citizen."
The petitioner now claims that his naturalization in Australia made him at worst only
a dual national and did not divest him of his Philippine citizenship. Such a specious
argument cannot stand against the clear provisions of CA No. 63, which enumerates
the modes by which Philippine citizenship may be lost. Among these are: (1)
naturalization in a foreign country; (2) express renunciation of citizenship; and (3)
subscribing to an oath of allegiance to support the Constitution or laws of a foreign
country, all of which are applicable to the petitioner. It is also worth mentioning in
this connection that under Article IV, Section 5, of the present Constitution, "Dual
allegiance of citizens is inimical to the national interest and shall be dealt with by
law."
Even if it be assumed that, as the petitioner asserts, his naturalization in Australia
was annulled after it was found that his marriage to the Australian citizen was
bigamous, that circumstance alone did not automatically restore his Philippine
citizenship. His divestiture of Australian citizenship does not concern us here. That is
a matter between him and his adopted country. What we must consider is the fact
that he voluntarily and freely rejected Philippine citizenship and willingly and
knowingly embraced the citizenship of a foreign country. The possibility that he may
have been subsequently rejected by Australia, as he claims, does not mean that he
has been automatically reinstated as a citizen of the Philippines.
Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be
reacquired by direct act of Congress, by naturalization, or by repatriation. It does
not appear in the record, nor does the petitioner claim, that he has reacquired
Philippine citizenship by any of these methods. He does not point to any judicial
decree of naturalization as to any statute directly conferring Philippine citizenship

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

Finally, there is the question of whether or not the private respondent, who filed the
quo warranto petition, can replace the petitioner as mayor. He cannot. The simple
reason is that as he obtained only the second highest number of votes in the
election, he was obviously not the choice of the people of Baguio city.
The latest ruling of the Court on this issue is Santos v. Commission on Elections 22
decided in 1985. In that case, the candidate who placed second was proclaimed
elected after the votes for his winning rival, who was disqualified as a turncoat and
considered a non-candidate, were all disregarded as stray. In effect, the second
placer won by default. That decision was supported by eight members of the Court
then 23 with three dissenting 24 and another two reserving their vote. 25 One was
on official leave. 26
Re-examining that decision, the Court finds, and so holds, that it should be reversed
in favor of the earlier case of Geronimo v. Ramos, 27 Which represents the more
logical and democratic rule. That case, which reiterated the doctrine first announced
in 1912 in Topacio vs. Paredes 28 was supported by ten members of the Court 29
without any dissent, although one reserved his vote, 30 another took no part 31 and
two others were on leave. 32 There the Court held:
... it would be extremely repugnant to the basic concept of the constitutionally
guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed a winner and imposed as the representative of a
constituency, the majority of which have positively declared through their ballots
that they do not choose him.
Sound policy dictates that public elective offices are filled by those who have
received the highest number of votes cast in the election for that office, and it is a
fundamental Idea in all republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p.
676.)
The fact that the candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he was elected does
not necessarily entitle the candidate who obtained the second highest number of
votes to be declared the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may not be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which clearly asserts a
contrary political and legislative policy on the matter, if the votes were cast in the
sincere belief that the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless.
It remains to stress that the citizen of the Philippines must take pride in his status as
such and cherish this priceless gift that, out of more than a hundred other
nationalities, God has seen fit to grant him. Having been so endowed, he must not
lightly yield this precious advantage, rejecting it for another land that may offer him
material and other attractions that he may not find in his own country. To be sure,
he has the right to renounce the Philippines if he sees fit and transfer his allegiance
to a state with more allurements for him. 33 But having done so, he cannot expect

to be welcomed back with open arms once his taste for his adopted country turns
sour or he is himself disowned by it as an undesirable alien.
Philippine citizenship is not a cheap commodity that can be easily recovered after
its renunciation. It may be restored only after the returning renegade makes a
formal act of re-dedication to the country he has abjured and he solemnly affirms
once again his total and exclusive loyalty to the Republic of the Philippines. This
may not be accomplished by election to public office.
WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the
Philippines and therefore DISQUALIFIED from continuing to serve as Mayor of Baguio
City. He is ordered to VACATE his office and surrender the same to the Vice-Mayor of
Baguio City, once this decision becomes final and executory. The temporary
restraining order dated January 31, 1989, is LIFTED.
Fernan, (C.J.), Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Gri;o-Aquino Medialdea and Regalado, JJ., concur.

Separate Opinions

GUTTIERREZ, JR., J.,concurring:

As in the case of Frivaldo v. Commission on Elections (G. R. No. 87193, June 23,
1989) and inspire of what would otherwise be insuperable procedural obstacles, I
am constrained to concur in the Court's decision so forcefully and felicitously written
by Mr. Justice Isagani A. Cruz. I do so because I cannot see how the Court can
countenance a citizen of a foreign country or one who has renounced Filipino
citizenship sitting as the mayor of one of the most important cities in the
Philippines.
What was raised to the Court was only the issue of the COMELEC's jurisdiction to
inquire into the citizenship of the petitioner. Ordinarily, we would have limited
ourselves to sustaining the jurisdiction of the COMELEC and remanding the case for
further proceedings and the rendition of a decision. Under Section 7, Article IXA of
the Constitution, a decision, order, or ruling of the COMELEC may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty day from receipt of
a copy thereof. No decision on the petitioner's citizenship has been rendered and no
decision can, as yet, be elevated to us for review. I, therefore, reiterate my
statement in Frivaldo that my concurrence is limited only to cases involving
citizenship and disloyalty but not to any of the many other grounds for
disqualification cited in my concurring opinion.
Our decision to disqualify the petitioner is particularly distressing to me because I
am impressed by the singular achievements in the beautification of Baguio City, in
the peace and order situation, and in the resurgence of civic pride so visible to
anyone who has gone up to Baguio since Mr. Labo assumed the mayorship.

However, I see no other way this case can be resolved except by adopting a
pragmatic approach. It is beyond dispute that a non-citizen cannot be the mayor of
Baguio City. I join the rest of the Court.
Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Gri;o-Aquino Medialdea and Regalado, JJ., concur.

Separate Opinions
GUTTIERREZ, JR., J.,concurring:
As in the case of Frivaldo v. Commission on Elections (G. R. No. 87193, June 23,
1989) and inspire of what would otherwise be insuperable procedural obstacles, I
am constrained to concur in the Court's decision so forcefully and felicitously written
by Mr. Justice Isagani A. Cruz. I do so because I cannot see how the Court can
countenance a citizen of a foreign country or one who has renounced Filipino
citizenship sitting as the mayor of one of the most important cities in the
Philippines.
What was raised to the Court was only the issue of the COMELEC's jurisdiction to
inquire into the citizenship of the petitioner. Ordinarily, we would have limited
ourselves to sustaining the jurisdiction of the COMELEC and remanding the case for
further proceedings and the rendition of a decision. Under Section 7, Article IXA of
the Constitution, a decision, order, or ruling of the COMELEC may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty day from receipt of
a copy thereof. No decision on the petitioner's citizenship has been rendered and no
decision can, as yet, be elevated to us for review. I, therefore, reiterate my
statement in Frivaldo that my concurrence is limited only to cases involving
citizenship and disloyalty but not to any of the many other grounds for
disqualification cited in my concurring opinion.
Our decision to disqualify the petitioner is particularly distressing to me because I
am impressed by the singular achievements in the beautification of Baguio City, in
the peace and order situation, and in the resurgence of civic pride so visible to
anyone who has gone up to Baguio since Mr. Labo assumed the mayorship.
However, I see no other way this case can be resolved except by adopting a
pragmatic approach. It is beyond dispute that a non-citizen cannot be the mayor of
Baguio City. I join the rest of the Court.
Maquiling v. Comelec
G.R. No. 195649
April 16, 2013
CASAN MACODE MAQUILING, Petitioner,
vs.

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

Respondents.
DECISION
SERENO, CJ.:
THE CASE
This is a Petition for Certiorari ender 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. 10-1 09(DC) of the COMELEC First Division dated 5 October
201 0 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.
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."10To further bolster his claim of Arnados 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 entering and departing the Philippines. The said record shows that
Arnado left the country on 14 April 2009 and returned on 25 June 2009, and again
departed on 29 July 2009, arriving back in the Philippines on 24 November 2009.
Balua likewise presented a certification from the Bureau of Immigration dated 23
April 2010, certifying that the name "Arnado, Rommel Cagoco" appears in the
available Computer Database/Passenger manifest/IBM listing on file as of 21 April
2010, with the following pertinent travel records:
DATE OF Arrival : 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 Arnado, attesting that Arnado is a longtime resident of Kauswagan and that he has been conspicuously and continuously
residing in his familys ancestral house in Kauswagan;
3. Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao del Norte
dated 03 June 2010 stating that Arnado is a bona fide resident of his barangay and
that Arnado went to the United States in 1985 to work and returned to the
Philippines in 2009;
4. Certification dated 31 May 2010 from the Municipal Local Government Operations
Office of Kauswagan stating that Dr. Maximo P. Arnado, Sr. served as Mayor of
Kauswagan, from January 1964 to June 1974 and from 15 February 1979 to 15 April
1986; and
5. Voter Certification issued by the Election Officer of Kauswagan certifying that
Arnado has been a registered voter of Kauswagan since 03 April 2009.
THE RULING OF THE COMELEC FIRST DIVISION
Instead of treating the Petition as an action for the cancellation of a certificate of
candidacy based on misrepresentation,15 the COMELEC First Division considered it
as one for disqualification. Baluas 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
Arnados 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, Arnados act of consistently using his US passport

after renouncing his US citizenship on 03 April 2009 effectively negated his Affidavit
of Renunciation.
xxxx
Arnados 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 Arnados 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. Arnados 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 Banc on
the ground that "the evidence is insufficient to justify the Resolution and that the
said Resolution is contrary to law."21 He raised the following contentions:22
1. The finding that he is not a Filipino citizen is not supported by the evidence
consisting of his Oath of Allegiance and the Affidavit of Renunciation, which show
that he has substantially complied with the requirements of R.A. No. 9225;
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. Baluas petition to cancel the certificate of candidacy of Arnado was filed out of
time, and the First Divisions treatment of the petition as one for disqualification
constitutes grave abuse of discretion amounting to excess of jurisdiction;23
5. He is undoubtedly the peoples choice as indicated by his winning the elections;

6. His proclamation as the winning candidate ousted the COMELEC from jurisdiction
over the case; and
7. The proper remedy to question his citizenship is through a petition for quo
warranto, which should have been filed within ten days from his proclamation.
Petitioner Casan Macode Maquiling (Maquiling), another candidate for mayor of
Kauswagan, and who garnered the second highest number of votes in the 2010
elections, intervened in the case and filed before the COMELEC En Banc a Motion for
Reconsideration together with an Opposition to Arnados 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
Arnados 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 Maquilings intervention, the COMELEC En Banc also cited Section 6 of R.A. No.
6646 which allows intervention in proceedings for disqualification even after
elections if no final judgment has been rendered, but went on further to say that
Maquiling, as the second placer, would not be prejudiced by the outcome of the
case as it agrees with the dispositive portion of the Resolution of the First Division
allowing the order of succession under Section 44 of the Local Government Code to
take effect.
The COMELEC En Banc agreed with the treatment by the First Division of the
petition as one for disqualification, and ruled that the petition was filed well within
the period prescribed by law,24 having been filed on 28 April 2010, which is not
later than 11 May 2010, the date of proclamation.
However, the COMELEC En Banc reversed and set aside the ruling of the First
Division and granted Arnados 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.
xxxx
The use of a US passport does not operate to revert back his status as a dual
citizen prior to his renunciation as there is no law saying such. More succinctly, the
use of a US passport does not operate to "un-renounce" what he has earlier on
renounced. The First Divisions 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.
xxxx
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 respondents submission
of a certified true copy of his passport showing that he used the same for his travels
on the following dates: January 31, 2010, April 16, 2010, May 20, 2010, January 12,
2010, March 31, 2010 and June 4, 2010. This then shows that the use of the US
passport was because to his knowledge, his Philippine passport was not yet issued
to him for his use. As probably pressing needs might be undertaken, the respondent
used whatever is within his control during that time.25
In his Separate Concurring Opinion, COMELEC Chairman Sixto Brillantes cited that
the use of foreign passport is not one of the grounds provided for under Section 1 of
Commonwealth Act No. 63 through which Philippine citizenship may be lost.
"The application of the more assimilative principle of continuity of citizenship is
more appropriate in this case. Under said principle, once a person becomes a
citizen, either by birth or naturalization, it is assumed that he desires to continue to
be a citizen, and this assumption stands until he voluntarily denationalizes or
expatriates himself. Thus, in the instant case respondent after reacquiring his
Philippine citizenship should be presumed to have remained a Filipino despite his
use of his American passport in the absence of clear, unequivocal and competent
proof of expatriation. Accordingly, all doubts should be resolved in favor of retention
of citizenship."26

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

Respondent evidently failed to prove that he truly and wholeheartedly abandoned
his allegiance to the United States. The latters continued use of his US passport
and enjoyment of all the privileges of a US citizen despite his previous renunciation
of the afore-mentioned citizenship runs contrary to his declaration that he chose to
retain only his Philippine citizenship. Respondents 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 latters 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 Divisions 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."

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 ones qualifications to
run for public office.
The third question is whether or not the rule on succession in the Local Government
Code is applicable to this case.
OUR RULING
Intervention of a rival candidate in a
disqualification case is proper when
there has not yet been any
proclamation of the winner.
Petitioner Casan Macode Maquiling intervened at the stage when respondent
Arnado filed a Motion for Reconsideration of the First Division Resolution before the
COMELEC En Banc. As the candidate who garnered the second highest number of
votes, Maquiling contends that he has an interest in the disqualification case filed
against Arnado, considering that in the event the latter is disqualified, the votes
cast for him should be considered stray and the second-placer should be proclaimed
as the winner in the elections.
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 candidate
whenever the evidence of guilt is strong. Under this provision, intervention may be
allowed in proceedings for disqualification even after election if there has yet been
no final judgment rendered.29
Clearly then, Maquiling has the right to intervene in the case. The fact that the
COMELEC En Banc has already ruled that Maquiling has not shown that the
requisites for the exemption to the second-placer rule set forth in Sinsuat v.
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.
Arnados 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 ones foreign citizenship is a positive
and voluntary act of representation as to ones 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:
xxxx
(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 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
However, this legal presumption does not operate permanently and is open to
attack when, after renouncing the foreign citizenship, the citizen performs positive
acts showing his continued possession of a foreign citizenship.33
Arnado himself subjected the issue of his citizenship to attack when, after
renouncing his foreign citizenship, he continued to use his US passport to travel in
and out of the country before filing his certificate of candidacy on 30 November
2009. The pivotal question to determine is whether he was solely and exclusively a
Filipino citizen at the time he filed his certificate of candidacy, thereby rendering
him eligible to run for public office.
Between 03 April 2009, the date he renounced his foreign citizenship, and 30
November 2009, the date he filed his COC, he used his US passport four times,
actions that run counter to the affidavit of renunciation he had earlier executed. By
using his foreign passport, Arnado positively and voluntarily represented himself as
an American, in effect declaring before immigration authorities of both countries
that he is an American citizen, with all attendant rights and privileges granted by
the United States of America.
The renunciation of foreign citizenship is not a hollow oath that can simply be
professed at any time, only to be violated the next day. It requires an absolute and
perpetual renunciation of the foreign citizenship and a full divestment of all civil and
political rights granted by the foreign country which granted the citizenship.
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 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) himself of full employment of all civil
and political rights and privileges of the United States of America."38
We agree with the COMELEC En Banc that such act of using a foreign passport does
not divest Arnado of his Filipino citizenship, which he acquired by repatriation.
However, by representing himself as an American citizen, Arnado voluntarily and
effectively reverted to his earlier status as a dual citizen. Such reversion was not
retroactive; it took place the instant Arnado represented himself as an American
citizen by using his US passport.
This act of using a foreign passport after renouncing ones foreign citizenship is fatal
to Arnados bid for public office, as it effectively imposed on him a disqualification to
run for an elective local position.
Arnados 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 "Arnados 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, Arnados subsequent use of his Philippine passport does not correct the
fact that after he renounced his foreign citizenship and prior to filing his certificate
of candidacy, he used his US passport. In the same way that the use of his foreign
passport does not undo his Oath of Renunciation, his subsequent use of his
Philippine passport does not undo his earlier use of his US passport.
Citizenship is not a matter of convenience. It is a badge of identity that comes with
attendant civil and political rights accorded by the state to its citizens. It likewise
demands the concomitant duty to maintain allegiance to ones 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 of To p a c i o 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 plurality by the board of canvassers actually
received the greater number of votes, in which case the court issues its mandamus
to the board of canvassers to correct the returns accordingly; or it may find that the
manner of holding the election and the returns are so tainted with fraud or illegality
that it cannot be determined who received a plurality of the legally cast ballots. In
the latter case, no question as to the correctness of the returns or the manner of
casting and counting the ballots is before the deciding power, and generally the
only result can be that the election fails entirely. In the former, we have a contest in
the strict sense of the word, because of the opposing parties are striving for
supremacy. If it be found that the successful candidate (according to the board of
canvassers) obtained a plurality in an illegal manner, and that another candidate
was the real victor, the former must retire in favor of the latter. In the other case,
there is not, strictly speaking, a contest, as the wreath of victory cannot be
transferred from an ineligible candidate to any other candidate when the sole
question is the eligibility of the one receiving a plurality of the legally cast ballots. In
the one case the question is as to who received a plurality of the legally cast ballots;
in the other, the question is confined to the personal character and circumstances
of a single individual.48 (Emphasis supplied)
Note that the sentence where the phrase is found starts with "In the other case,
there is not, strictly speaking, a contest" in contrast to the earlier statement, "In the
former, we have a contest in the strict sense of the word, because of the opposing
parties are striving for supremacy."
The Court in Topacio v. Paredes cannot be said to have held that "the wreath of
victory cannot be transferred from an ineligible candidate to any other candidate
when the sole question is the eligibility of the one receiving a plurality of the legally
cast ballots."
A proper reading of the case reveals that the ruling therein is that since the Court of
First Instance is without jurisdiction to try a disqualification case based on the
eligibility of the person who obtained the highest number of votes in the election, its
jurisdiction being confined "to determine which of the contestants has been duly
elected" the judge exceeded his jurisdiction when he "declared that no one had
been legally elected president of the municipality of Imus at the general election
held in that town on 4 June 1912" where "the only question raised was whether or
not Topacio was eligible to be elected and to hold the office of municipal president."
The Court did not rule that Topacio was disqualified and that Abad as the second
placer cannot be proclaimed in his stead. The Court therein ruled:

For the foregoing reasons, we are of the opinion and so hold that the respondent
judge exceeded his jurisdiction in declaring in those proceedings that no one was
elected 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 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. COMELEC50
when 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
We have ruled in the past that a candidates 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 candidates certificate of
candidacy. We said that while provisions relating to certificates of candidacy are
mandatory in terms, it is an established rule of interpretation as regards election
laws, that mandatory provisions requiring certain steps before elections will be
construed as directory after the elections, to give effect to the will of the people. We
so ruled in Quizon v. COMELEC and Saya-ang v. COMELEC:
The present case perhaps presents the proper time and opportunity to 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 candidates 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 electorates
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.1wphi1
Maquiling is not a second-placer as
he obtained the highest number of
votes from among the qualified
candidates.
With Arnados disqualification, Maquiling then becomes the winner in the election as
he obtained the highest number of votes from among the qualified candidates.
We have ruled in the recent cases of Aratea v. 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 candidates 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 electorates awareness of the candidates 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 candidates 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 Arnados 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 Arnados 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 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 201 0 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 Bane 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.
MARIA LOURDES P. A. SERENO
Chief Justice
WE CONCUR:
ANTONIO T. CARPIO
tr align="center">
PRESBITERO J. VELASCO, JR.
Associate Justice TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
Associate Justice MARIANO C. DEL CASTILLO
Associate Justice
ROBERTO A. ABAD
Associate Justice MARTIN S. VILLARAMA, JR.
Associate Justice

ROBERTO A. ABAD
Associate Justice MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice JOSE CATRAL MENDOZA
Associate Justice
BIENVENIDO L. REYES
Associate Justice ESTELA M. PERLAS-BERNABE
Associate Justice
MARVIC MARIO VICTOR F. LEONEN
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions
in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court.
MARIA LOURDES P. A. SERENO
Chief Justice
Footnotes
1 Rollo, pp. 38-49.
2 Id. at 50-67.
3 Id. at 229, Exhibit "1-MR," Certificate of Live Birth.
4 Id. at 241, Exhibit "12-MR," Oath of Allegiance.
5 Id. at 239, Exhibit "10-MR," Order of Approval.
6 Ibid, Note 2 and Annex "1" of Duly Verified Answer, Rollo, p. 160 and Annex "2" of
Memorandum for Respondent, Rollo, p. 178.
7 Ibid, p. 160 and 178.
8 Id. at 139, Annex "B" of Petition for Disqualification; Id. at 177, Annex "1"
Memorandum for Respondent.
9 Id. at 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 140, Certification.
11 Id. at 191, Exhibit "A" of Memorandum for Petitioner filed before the Commission
on Elections.

12 Id. at 192, Exhibit "C" of Memorandum for Petitioner filed before the Commission
on Elections.
13 Records, pp. 76-77.
14 Rollo, p. 42, Resolution dated 5 October 2010, penned by Commissioner Rene V.
Sarmiento, and concurred in by Commissioner Armando C. Velasco and Gregorio Y.
Larrazabal.
15 Id.
16 Id. at 43.
17 Id. at 44.
18 Id.
19 Id. at 46-47, Resolution dated 5 October 2010.
20 Id at 48.
21 Id. at 214, Amended Motion for Reconsideration.
22 Id. at 193-211, Verified Motion for Reconsideration; id. at 212-246, Amended
Motion for Reconsideration; id. at 247-254, Rejoinder to Petitioners
Comment/Opposition to Respondents Amended Motion for Reconsideration.
23 Id. at 224, Amended Motion for Reconsideration.
24 A verified petition to disqualify a candidate pursuant to Sec. 68 of the OEC and
the verified petition to disqualify a candidate for lack of qualifications or possessing
some grounds for disqualification may be filed on any day after the last day for filing
of certificates of candidacy but not later than the date of proclamation. (Sec. 4.B.1.
COMELEC Resolution No. 8696).
25 Rollo, pp. 64-66, COMELEC En Banc Resolution dated 2 February 2011.
26 Id. at 69, Separate Concurring Opinion.
27 Id. at 72-73, Dissenting Opinion of Commissioner Rene V. Sarmiento, citing the
cases of Torayno, Sr. v. COMELEC, 337 SCRA 574 [2000]; Santos v. COMELEC, 103
SCRA 628 [1981]; Sanchez v. Del Rosario, 1 SCRA 1102 [1961]; and Reyes v.
COMELEC, 97 SCRA 500 [1980].
28 367 Phil. 132 (1999).
29 Id. at 142-143.
30 G.R. No. 105919, 6 August 1992, 212 SCRA 309.

31 Section 5(2) of R.A. No. 9225.

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:
xxxx
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
citizenship by 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.
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.
xxxx
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.

xxxx
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 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 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.

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:
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.
34 Supra note 28 at 153.
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 husbands country, she acquires his nationality.
36 See Note 7.
37 Id.
38 Id.
39 See Cordora v. COMELEC, G.R. No. 176947, 19 February 2009, 580 SCRA 12.
40 Sec. 40. Disqualifications. - The following persons are disqualified from running
for any elective local position:
xxxx
(d) Those with dual citizenship; x x x.
41 Fivaldo v. COMELEC, 255 Phil. 934, 944 (1989).
42 Rollo, p. 46, Resolution dated 5 October 2010.
43 Id. at 219, Amended Motion for Reconsideration.
44 Id. at 66, Resolution dated 02 February 2011.
45 23 Phil. 238 (1912).
46 Id. at 240.
47 Id. at 255.
48 Id at 254-255.
49 Id. at 258
50 Supra note 41.
51 Id. at 944-945.
52 G.R. No. 180051, 24 December 2008, 575 SCRA 590, 614-615.
53 Id. at 615, citing Quizon v. COMELEC, G.R. No. 177927, 15 February 2008, 545
SCRA 635, Saya-ang v. COMELEC, 462 Phil. 373 (2003).

54 G. R. No. 195229, 9 October 2012.

55 G.R. Nos. 193237/193536, 9 October 2012.
56 G.R. No. 105111, 3 July 3 1992, 211 SCRA 297, 312.
The Lawphil Project - Arellano Law Foundation
CONCURRING OPINION
CARPIO, J.:
I concur in the ponencia. Respondent Rommel Amado (Arnado) is disqualified from
running for any local elective position. The Commission on Elections (COMELEC)
should be directed to proclaim Petitioner Casan Macode Maquiling (Maquiling) as the
duly elected Mayor of Kauswagan, Lanao del Norte in the May 2010 elections.
Arnado received the highest number of votes in the May 2010 elections and was
proclaimed Mayor of Kauswagan, Lanao del Nm1e. Respondent Linog G. Balua
(Balua), one of Arnados opponents, filed a petition before the COMELEC against
Arnado. Balua's petition to disqualify Amado and/or to cancel his certificate of
candidacy rests on the allegation that Arnado lacks the residency and citizenship
requirements. Balua presented evidence to show that Arnado used his American
passport to enter and depart the Philippines. Maquiling, on the other hand, was also
one of Arnados opponents. Maquiling received the second highest number of votes
next to Arnado. Maquiling filed motions for intervention and for reconsideration
before the COMELEC En Bane. Maquiling asserted that he should have been
proclaimed as Mayor for being the legitimate candidate with the highest number of
votes.
Arnado is a natural-born Filipino Citizen who lost his Filipino citizenship upon his
naturalization as an American citizen. Arnado applied for repatriation, and
subsequently took two Oaths of Allegiance to the Republic of the Philippines, then
renounced his American citizenship. The relevant timeline is as follows:
10 July 2008 - Arnado pledged his Oath of Allegiance to the Republic of the
Philippines.
3 April 2009 - Arnado again pledged his Oath of Allegiance to the Republic of the
Philippines and executed an Affidavit of Renunciation of his American citizenship.
14 April to 25 June 2009 - Arnado used his United States of America (USA) Passport
No. 057782700 to depart and enter the Philippines.
29 July to 24 November 2009 - Arnado again used his USA Passport No. 057782700
to depart and enter the Philippines.

30 November 2009 - Arnado filed his Certificate of Candidacy for Mayor of

Kauswagan, Lanao del Norte.
A certification from the Bureau of Immigration showed that Arnado arrived in the
Philippines on 12 January 2010, as well as on 23 March 2010. Both arrival dates
show that Arnado used the same USA passport he used in 2009.
Despite Baluas petition before the COMELEC, the elections proceeded without any
ruling on Arnados qualification. Arnado received the highest number of votes in the
May 2010 elections and was proclaimed Mayor of Kauswagan, Lanao del Norte.
The COMELEC First Division issued its ruling on Arnados qualification after his
proclamation. The COMELEC First Division treated Baluas petition to disqualify
Arnado and/or to cancel his certificate of candidacy as a petition for disqualification.
The COMELEC First Division granted Baluas petition and annulled Arnados
proclamation. The COMELEC First Division stated that "Arnados 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." The COMELEC First Division decreed that the order of succession
under Section 44 of the Local Government Code of 19911 should take effect.
Arnado filed a motion for reconsideration before the COMELEC En Banc. Maquiling
intervened, and asserted that although the COMELEC First Division correctly
disqualified Arnado, the law on succession should not apply. Instead, Maquiling
should have been proclaimed as Mayor for being the legitimate candidate with the
highest number of votes.
The COMELEC En Banc reversed and set aside the ruling of the COMELEC First
Division. In granting Arnados motion for reconsideration, the COMELEC En Banc
stated that Arnados use of his USA passport "does not operate to revert back [sic]
his status as a dual citizen prior to his renunciation as there is no law saying such."
COMELEC Chair Sixto Brillantes concurred, and stated that Arnado "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." Commissioner Rene Sarmiento dissented, and declared that
Arnado failed to prove that he abandoned his allegiance to the USA and that his loss
of the continuing requirement of citizenship disqualifies him to serve as an elected
official. Moreover, having received the highest number of votes does not validate
Arnados election.
The ponencia granted Maquilings petition before this Court, and annulled and set
aside the ruling of the COMELEC En Banc. The ponencia declared that Arnados use
of his USA passport did not divest him of his Filipino citizenship but vested back in
him the American citizenship he earlier renounced. The ponencia also directed the
COMELEC to proclaim Maquiling as the duly elected Mayor of Kauswagan, Lanao del
Norte in the May 2010 elections for being the qualified candidate who received the
highest number of votes.
On Arnados Use of a Non-Philippine Passport

Philippine courts have no power to declare whether a person possesses citizenship

other than that of the Philippines. In Mercado v. Manzano,2 Constitutional
Commissioner Joaquin G. Bernas was quoted as saying, "Dual 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."3 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 Arnados American citizenship.
Arnado, as a naturalized American citizen and a repatriated Filipino, is required by
law to swear to an Oath of Allegiance to the Republic of the Philippines and execute
a Renunciation of Foreign Citizenship before he may seek elective Philippine public
office. The pertinent sections of R.A. No. 9225 read:
Section 3. Retention of Philippine Citizenship. Any provision of law to the contrary
notwithstanding, natural-born citizenship by reason of their naturalization as
citizens of a foreign country are hereby deemed to have re-acquired Philippine
citizenship upon taking the following oath of allegiance to the Republic:
"I _____________________, solemnly swear (or affirm) that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal orders
promulgated by the duly constituted authorities of the Philippines; and I hereby
declare that I recognize and accept the supreme authority of the Philippines and will
maintain true faith and allegiance thereto; and that I imposed this obligation upon
myself voluntarily without mental reservation or purpose of evasion."
Natural born citizens of the Philippines who, after the effectivity of this Act, become
citizens of a foreign country shall retain their Philippine citizenship upon taking the
aforesaid oath.
Section 5. Civil and Political Rights and Liabilities. 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:
xxxx
(2) Those seeking elective public office 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;
x x x x.
Arnados use of his American passport after 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 between dual 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:4
We have to consider the present case in consonance with our rulings in Mercado v.
Manzano, Valles v. COMELEC, and AASJS v. Datumanong. Mercado and Valles involve
similar operative facts as the present case. Manzano and Valles, like Tambunting,
possessed dual citizenship by the circumstances of their birth. Manzano was born to
Filipino parents in the United States which follows the doctrine of jus soli. Valles was
born to an Australian mother and a Filipino father in Australia. Our rulings in
Manzano and Valles stated that dual citizenship is different from dual allegiance
both by cause and, for those desiring to run for public office, by effect. Dual
citizenship is involuntary and arises when, as a result of the concurrent application
of the different laws of two or more states, a person is simultaneously considered a
national by the said states. Thus, like any other natural-born Filipino, it is enough for
a person with dual citizenship who seeks public office to file his certificate of
candidacy and swear to the oath of allegiance contained therein. Dual allegiance,
on the other hand, is brought about by the individuals active participation in the
naturalization process. AASJS states that, under R.A. No. 9225, a Filipino who
becomes a naturalized citizen of another country is allowed to retain his Filipino
citizenship by swearing to the supreme authority of the Republic of the Philippines.
The act of taking an oath of allegiance is an implicit renunciation of a naturalized
citizens foreign citizenship.
R.A. No. 9225, or the Citizenship Retention and Reacquisition Act of 2003, was
enacted years after the promulgation of Manzano and Valles. The oath found in
Section 3 of R.A. No. 9225 reads as follows:
I __________ , solemnly swear (or affirm) that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal orders
promulgated by the duly constituted authorities of the Philippines; and I hereby
declare that I recognize and accept the supreme authority of the Philippines and will
maintain true faith and allegiance thereto; and that I impose this obligation upon
myself voluntarily without mental reservation or purpose of evasion.
In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with dual
citizenship per se, but with the status of naturalized citizens who maintain their
allegiance to their countries of origin even after their naturalization. Section 5(2) of
R.A. No. 9225 states that naturalized citizens who reacquire Filipino citizenship and
desire to run for elective public office in the Philippines shall "meet the
qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of filing the certificate of candidacy, make a personal
and sworn renunciation of any and all foreign citizenship before any public officer
authorized to administer an oath" aside from the oath of allegiance prescribed in
Section 3 of R.A. No. 9225. The twin requirements of swearing to an Oath of
Allegiance and executing a Renunciation of Foreign Citizenship served as the bases

for our recent rulings in Jacot v. Dal and COMELEC, Velasco v. COMELEC, and Japzon
v. COMELEC, all of which involve natural-born Filipinos who later became naturalized
citizens of another country and thereafter ran for elective office in the Philippines. In
the present case, Tambunting, a natural-born Filipino, did not subsequently become
a naturalized citizen of another country. Hence, the twin requirements in R.A. No.
9225 do not apply to him.5
Hence, Arnados failure to comply with the twin requirements of R.A. No. 9225 is
clearly a failure to qualify as a candidate for Philippine elective public office. He is
still deemed, under Philippine law, holding allegiance to a foreign country, which
disqualifies him from running for an elective public office. Such failure to comply
with the twin requirements of R.A. No. 9225 is included among the grounds for
disqualification in Section 68 of the Omnibus Election Code: "Disqualifications. x x
x. Any person who is a permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this Code, unless said
person has waived his status as a permanent resident or immigrant of a foreign
country in accordance with the residence requirement provided for in election laws."
On the Selection of the Lawful Mayor of Kauswagan, Lanao del Sur
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 Arnados
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. COMELEC6 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 void ab initio can operate
to defeat one or more valid certificates of candidacy for the same position.7
It is undisputed that Amado had to comply with the twin requirements of allegiance
and renunciation. However, Arnados use of his USA passport after the execution of
his At1idavit of Renunciation constituted a retraction of his renunciation, and led to
his failure to comply with the requirement of renunciation at the time he tiled his
certificate of candidacy. His certificate of candidacy was thus void ah initio.

Garnering the highest number of votes for an elective position does not cure this
defect. Maquiling, the alleged "second placer," should be proclaimed Mayor because
Arnados ce11iticate of candidacy was void ah initio. Maquiling is the qualified
candidate who actually garnered the highest number of votes for the position of
Mayor.
ANTONIO T. CARPIO
Associate Justice
Footnotes
1 Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor,
Mayor, and Vice-Mayor. - If a permanent vacancy occurs in the office of the governor
or mayor, the vice-governor or vice-mayor concerned shall become the governor or
mayor. x x x.
2 367 Phil. 132 (1999) citing 1 RECORD OF THE CONSTITUTIONAL COMMISSION 203
(23 June 1986).
3 Id. at 147.
4 G.R. No. 176947, 19 February 2009, 580 SCRA 12. Citations omitted.
5 Id. at 23-25.
6 G.R. Nos. 193237 and 193536, 9 October 2012. Citations omitted. See also Cayat
v. COMELEC, G.R. Nos. 163776 and 165736, 24 April 2007, 522 SCRA 23; and Aratea
v. COMELEC, G.R. No. 195229, 9 October 2012.
7 Id.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
BRION, J.:
I dissent from the ponencias conclusions that:
(1) respondent Rommel C. Arnados (Arnado) use of his US passport in traveling
twice to the US violated his Oath of Renunciation so that he reverted back to the
status of a dual citizen a distinct ground for disqualification under Section 40(d) of
the Local Government Code (LGC) that barred him from assuming the office of
Mayor of Kuswagan, Lanao del Norte; and
(2) the petitioner, Casan Macode Mquiling (Maquiling), the "second placer" in the
2010 elections, should be rightfully seated as Mayor of Kauswagan, Lanao del Norte.

I base this Dissent on the following grounds:

1) Arnado has performed all acts required by Section 5(2) of Republic Act No. 92251
(RA 9225) to re-acquire Philippine citizenship and to qualify and run for public office;
2) The evidence on record shows that Arnados use of his US passport in two trips to
the US after re-acquiring his Philippine citizenship under RA 9225 and renouncing
his US citizenship, were mere isolated acts that were sufficiently justified under the
given circumstances that Arnado fully explained;
3) Arnados use of his US passport did not amount to an express renunciation of his
Philippine citizenship under Section 1 of Commonwealth Act No. 63 (CA 63);
4) Under the circumstances of this case, Arnado did not do anything to negate the
oath of renunciation he took;
5) At any rate, all doubts should be resolved in favor of Arnados eligibility after this
was confirmed by the mandate of the people of Kauswagan, Lanao del Norte by his
election as Mayor; and
6) The assailed findings of facts and consequent conclusions of law are based on
evidence on record and are correct applications of law; hence, no basis exists for
this Court to rule that the Comelec en banc committed grave abuse of discretion in
ruling on the case.
The Antecedent Facts
Respondent Rommel Cagoco Arnado is a natural born Filipino citizen, born to Filipino
parents on July 22, 1957 at Iligan City, Lanao del Norte.2 In 1985, he immigrated to
the United States for job purposes.3 He was deemed to have lost his Filipino
citizenship by operation of law4 when he became a naturalized citizen of the United
States of America while in America.
In 2003, Congress declared it the policy of the State that all Philippine citizens who
become citizens of another country shall be deemed not to have lost their Philippine
citizenship upon compliance with the statute Congress passed RA 9225.5
Arnado, like many other Filipinos before him, at age 51 and after a stay of 23 years
in the U.S., opted to re-affirm his Filipino citizenship by filing the required application
and taking his oath before the Philippine Consulate General in San Francisco, USA.
His application was approved by Consul Wilfredo C. Santos, evidenced by an Order
of Approval dated July 10, 2008.6 He took his Oath of Allegiance to the Republic of
the Philippines (Republic) on the same day and was accordingly issued Identification
Certificate Number SF-1524-08/2008 declaring him once more purely a citizen of the
Republic.7
On April 3, 2009, Arnado took another Oath of Allegiance to the Republic and
executed an Affidavit of Renunciation of his foreign citizenship.8

Eleven days later or on April 14, 2009, Arnado left the country for the United States.
According to Bureau of Immigration records, Arnado then used a passport US
Passport (No. 057782700) that identified his nationality as "USA-AMERICAN." The
same record also indicated that Arnado used the same U.S. Passport when he
returned to the country on June 25, 2009. This happened again when he left for the
United States on July 29, 2009 and returned to the country on November 24, 2009.9
The record does not show the exact date when Arnado applied for a Philippine
passport; it shows however that Consulate General of the Philippines in San
Francisco, USA, approved and issued a Philippine Passport (No. XX 3979162) for
Arnado on June 18, 2009.10 He received this passport three (3) months later.11
Thereafter, he used his Philippine passport in his travels on the following dates:
December 11, 2009 (Departure), January 12, 2010 (Arrival), January 31, 2010
(Departure), March 31, 2010 (Arrival), April 11, 2010 (Departure) April 16, 2010
(Arrival), May 20, 2010 (Departure) and June 4, 2010 (Arrival).12
On November 30, 2009 or six months after he fully complied with the requirements
of R.A. No. 9225, Arnado filed his Certificate of Candidacy (CoC) for the position of
Mayor of Kauswagan, Lanao del Norte.13
Five months after or on April 28, 2010, respondent mayoralty candidate Linog C.
Balua (Balua) filed a petition to disqualify Arnado and/or to cancel his CoC. Balua
contended that Arnado is a foreigner and is not a resident of Kauswagan, Lanao del
Norte. Balua attached to his petition a Bureau of Immigration (BI) certification dated
April 23, 2010 indicating Arnados nationality as "USA-American" and certifying that
the name Arnado Rommel Cagoco appears in the Computer Database/Passenger
Manifest with the following pertinent travel records:14
DATE OF Arrival : 01/12/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 057782700
DATE OF Arrival : 03/23/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 057782700
(Significantly, Arnado also submitted the photocopy of his Philippine passport
showing that he used his Philippine passport on travels on these dates.)15
Balua also presented a computer generated travel record dated December 3, 2009
indicating that Arnado has been using his US Passport No. 057782700 in entering
and departing the Philippines. The record showed that Arnado left the country on
April 14, 2009 and returned on June 25, 2009; he departed again on July 29, 2009
and arrived back in the country on November 24, 2009.16 In these lights, Arnados
disqualification was a live election issue, well-known to the Kauswagan electorate,
who nevertheless voted Arnado into office as Mayor.17

The Comelec First Division ordered Arnado to file his Answer (to Baluas petition)
and a Memorandum. With the petition filed a mere two weeks from election day,
Arnado failed to comply, thus giving Balua the opportunity to move that Arnado be
declared in default. The Comelec, however, failed to act on the motion as the case
was overtaken by the May 10, 2010 elections.
Arnado won the election, garnering 5,952 votes over the second placer, Maquiling,
who garnered 5,357 votes. The Municipal Board of Canvassers subsequently
proclaimed him as the duly elected mayor of Kauswagan, Lanao del Norte.18
In the Answer which he filed after his proclamation, Arnado averred that he did not
commit any material misrepresentation in his CoC, and that he was eligible to run
for the office of mayor of Kauswagan, Lanao del Norte; he had fully complied with
the requirements of RA 9225 by taking the required Oath of Allegiance and
executing an Affidavit of Renunciation of his U.S. citizenship.19 To support his
allegations, Arnado also submitted the following documentary evidence:
(1)Affidavit of Renunciation and Oath of Allegiance to the Republic of the Philippines
dated April 3, 2009;
(2) Joint-Affidavit dated May 31, 2010 of Engr. Virgil Seno, Virginia Branzuela,
Leoncio Daligdig, and Jessy Corpin, all neighbors of Arnado, attesting that Arnado is
a long-time resident of Kauswagan and that he has been conspicuously and
continuously residing in his familys ancestral house in Kauswagan;
(3) Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao del
Norte dated June 3, 2010 stating that Arnado is a bona fide resident of his barangay
and that Arnado went to the United States in 1985 to work and returned to the
Philippines in 2009;
(4) Certification dated May 31, 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 February 15 1979 to
April 15, 1986;
(5) Voter Certification issued by the Election Officer of Kauswagan certifying that
Arnado has been a registered voter of Kauswagan since April 3, 2009.20
The Comelec First Division Ruling
The Comelec First Division treated Baluas petition as a petition for disqualification
instead of a petition for cancellation of CoC based on misrepresentation. Because
Balua failed to present evidence to support his contention that Arnado is a resident
of the United States, the First Division found no basis to conclude that Arnaldo did
not meet the one-year residency requirement under the LGC.
On the issue of citizenship, the First Division held Arnados act of using his US
passport after renouncing his US citizenship on April 3, 2009, effectively negated his
Oath of Renunciation. As basis, the First Division cited the Courts ruling in In Re

Petition for Habeas Corpus of Willie Yu v. Defensor-Santiago, et al. It concluded that

Arnados continued use of his US passport was a strong indication that he had no
real intention to renounce his US citizenship and that he only executed an Oath of
Renunciation to enable him to run for office. The Division noted in this regard the
glaring inconsistency between Arnados unexplained use of his US passport and his
claim that he had re-acquired Philippine citizenship and had renounced his US
citizenship.
Based on these premises, the Comelec First Division disqualified Arnado, annulled
his proclamation, and ordered that the order of succession to the mayoralty under
Section 44 of the LGC be given effect.21
Maquilings Intervention
While Arnados motion for reconsideration was pending, Maquiling intervened and
filed a Motion for Reconsideration and an opposition to Arnados motion for
reconsideration.
Maquiling argued that while the First Division correctly disqualified Arnado, the
order of succession under Section 44 is not applicable; he claimed that with the
cancellation of Arnados CoC and the nullification of his proclamation, he should be
proclaimed the winner since he was the legitimate candidate who obtained the
highest number of votes.22
The Comelec en banc Ruling
The Comelec en banc affirmed the First Divisions treatment of the petition as a
petition for disqualification. It also agreed with the disposition of the First Division to
follow the order of succession under Section 44, thus ruling out second placer
Maquilings entitlement to the post of Mayor.
The Comelec en banc however, reversed the First Division ruling and granted
Arnados Motion for Reconsideration. It held that by renouncing his US citizenship,
Arnado became a "pure" Philippine citizen again. It ruled that the use of a US
passport does not operate to revert Arnados status as a dual citizen prior to his
renunciation; it does not operate to "un-renounce" what had earlier been
renounced.
The Comelec en banc further ruled that the First Divisions reliance on In Re Petition
for Habeas Corpus of Willie Yu v. Defensor-Santiago, et al.,23 was misplaced as the
facts of this cited case are not the same or comparable with those of the present
case. Unlike the present case, the petitioner in Yu was a naturalized citizen who,
after taking his oath as a naturalized Filipino citizen, applied for a renewal of his
Portuguese passport.
Finally, the Comelec en banc found that Arnado presented a plausible and
believable explanation justifying the use of his US passport. While his Philippine
passport was issued on June 18, 2009, he was not immediately notified of the
issuance so that he failed to actually get it until after three months later. He
thereafter used his Philippine passport in his subsequent travels abroad.24

The Separate and Dissenting Opinions

Significantly, Comelec Chairman Sixto S. Brillantes issued a Separate Opinion
concurring with the Comelec majority. He opined that the use of a foreign passport
is not one of the grounds provided for under Section 1 of CA 63 through which
Philippine citizenship may be lost. He cites the assimilative principle of continuity of
Philippine citizenship: Arnado is presumed to have remained a Filipino despite his
use of his American passport in the absence of clear and unequivocal proof of
expatriation. In addition, all doubts should be resolved in favor of Arnados retention
of citizenship.25
In his Dissenting Opinion, Commissioner Rene V. Sarmiento emphasized that Arnado
failed to prove that he truly abandoned his allegiance to the United States; his
continued use of his US passport and enjoyment of all the privileges of a US citizen
ran counter to his declaration that he chose to retain only his Philippine citizenship.
He noted that qualifications for elective office, such as citizenship, are continuing
requirements; once citizenship is lost, title to the office is deemed forfeited.26
The Issues
The complete issues posed for the Courts consideration are:
(1) Whether intervention is allowed in a disqualification case;
(2) Whether the use of a foreign passport after renouncing foreign citizenship
amounts to undoing a renunciation made, and whether the use of a foreign passport
after renouncing foreign citizenship affects ones qualifications to run for public
office;
(3) Assuming Arnado is disqualified, whether the rule on succession in the LGC is
applicable in the present case;27
(4) How should doubt in the present case be resolved in light of Arnados election;
and
(5) Whether, based on the facts presented and the applicable law, the Comelec en
banc committed grave abuse of discretion.
The Ponencia
The ponencia grants Maquilings petition for certiorari, thus holding that the
Comelec en banc committed grave abuse of discretion in considering the facts and
the law presented. It thus holds that Arnado is a dual citizen disqualified to run for
public office under Section 40(d) of the LGC. On this basis, the ponencia rules that
with Arnados disqualification, second placer Maquiling should be proclaimed as the
duly elected Mayor of Kauswagan, Lanao del Norte.
Based on this conclusion, the ponencia resolves all doubts against Arnado and
disregards the democratic decision of the Kauswagan electorate.

As the ponencia reasons it out, the act of using a foreign passport does not divest
Arnado of his Filipino citizenship. By representing himself as an American citizen,
however, Arnado voluntarily and effectively reverted to his earlier status as dual
citizen. It emphasizes that such reversion is not retroactive; it took place the instant
Arnado represented himself as an American citizen by using his US passport.
Thus, by the time Arnado filed his CoC on November 30, 2009, the ponencia
concludes that 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 LGC, he was not qualified as a candidate
to run for a local elective position.28
With Arnado barred from candidacy, the ponencia further concludes that his CoC
was void from the beginning. The affirmation of Arnados disqualification, although
made long after the elections, reaches back to the filing of the CoC so that he was
not a candidate at all in the May 10, 2010 elections. Hence, the votes cast in his
favor should not be counted and Maquiling, as the qualified candidate who obtained
the highest number of vote, should be declared the duly elected mayor of
Kauswagan, Lanao del Norte.29 In this manner, the ponencia effectively
disenfranchised 5,952 or 52.63% of those who voted for the top two contending
candidates for the position of Mayor; it rules for a minority Mayor.
Refutation of the Ponencia
Arnado performed all acts required by Section 5(2) of RA 9225 to reacquire
Philippine citizenship and run for public office; in fact, he actively followed up his reaffirmed citizenship by running for public office.
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.30
Section 3 of RA 9225 on these points reads:
Section 3. Retention of Philippine Citizenship - Any provision of law to the contrary
notwithstanding, natural-born citizenship by reason of their naturalization as
citizens of a foreign country are hereby deemed to have re-acquired Philippine
citizenship upon taking the following oath of allegiance to the Republic:
"I _____________________, solemnly swear (or affirm) that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal orders
promulgated by the duly constituted authorities of the Philippines; and I hereby
declare that I recognize and accept the supreme authority of the Philippines and will
maintain true faith and allegiance thereto; and that I imposed this obligation upon
myself voluntarily without mental reservation or purpose of evasion."

Natural born citizens of the Philippines who, after the effectivity of this Act, become
citizens of a foreign country shall retain their Philippine citizenship upon taking the
aforesaid oath.
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.
Under the given facts, Arnado indisputably re-acquired Philippine citizenship after
taking the Oath of Allegiance not only once but twice on July 10, 2008 and April 3,
2009. Separately from this oath of allegiance, Arnado took an oath renouncing his
American citizenship as additionally required by RA 9225 for those seeking public
office.
Section 5 of RA 9225 on this point provides:
Section 5. Civil and Political Rights and Liabilities - 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: (2) Those seeking elective public office 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.
In Japzon v. Commission on Elections,31 we ruled that Section 5(2) of RA 9225
requires the twin requirements of taking an Oath of Allegiance and the execution of
a similarly sworn Renunciation of Foreign Citizenship. We said:
Breaking down the afore-quoted provision, for a natural born Filipino, who
reacquired or retained his Philippine citizenship under Republic Act No. 9225, to run
for public office, he must: (1) meet the qualifications for holding such public office
as required by the Constitution and existing laws; and (2) make a personal and
sworn renunciation of any and all foreign citizenships before any public officer
authorized to administer an oath.32
Thus, the respondent in that case, Jaime Ty - a natural born Filipino citizen who
subsequently became a naturalized American citizen - became a "pure" Philippine
citizen again after taking the Oath of Allegiance and executing an Oath of
Renunciation of his American citizenship. To quote our Decision:
He was born and raised in the Municipality of General Macarthur, Eastern Samar,
Philippines. However, he left to work in the USA and eventually became an
American citizen. On 2 October 2005, Ty reacquired his Philippine citizenship by
taking his Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz,
Vice Consul of the Philippine Consulate General in Los Angeles, California, USA, in
accordance with the provisions of Republic Act No. 9225. At this point, Ty still held
dual citizenship, i.e., American and Philippine. It was only on 19 March 2007 that Ty

renounced his American citizenship before a notary public and, resultantly, became
a pure Philippine citizen.33
In the present case, Arnado indisputably complied with the second requirement of
Section 5(2) of RA 9225. On April 3, 2009, he personally executed an Affidavit of
Renunciation an Oath of Allegiance before notary public Thomas Dean M. Quijano.
Therefore, when he filed his CoC for the position of Mayor of the Municipality of
Kauswagan, Lanao del Norte on November 30, 2009, he had already effectively
renounced his American citizenship, solely retaining his Philippine citizenship as the
law requires. In this way, Arnado qualified for the position of Mayor of Kauswagan,
Lanao del Norte and filed a valid CoC.
The evidence on record shows that
Arnados use of his US passport after his
compliance with the terms of RA 9225, was
an isolated act that was sufficiently
explained and justified.
The records bear out that Arnado used his US passport in two trips to and from the
US after he had executed his Affidavit of Renunciation on April 3, 2009. He travelled
on the following dates:
Date

Destination

April 14, 2009

to the U.S.

June 25, 2009

to the Philippines

July 29, 2009

to the U.S.

November 24, 2009

to the Philippines

Arnados 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 2009.34 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.35
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 November 24, 2009.

Given these circumstances, Arnados 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.
Arnados use of his US passport was not an
express renunciation of his Philippine
citizenship under Section 1 of CA 63.
I disagree with the ponencias 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.
In this light, the proper framing of the main issue in this case should be whether
Arnados use of his US passport affected his status as a "pure" Philippine citizen. In
question form did Arnados use of a US passport amount to a ground under the
law for the loss of his Filipino citizenship under CA 63? Or alternatively, the retention
of his dual citizenship status?
I loathe to rule that Arnados 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.36
A clear and vivid example, taken from jurisprudence, of what "express renunction" is
not transpired in Aznar v. Comelec37 where the Court ruled that the mere fact that
respondent Osmena was a holder of a certificate stating that he is an American did
not mean that he is no longer a Filipino, and that an application for an alien
certificate of registration did not amount to a renunciation of his Philippine
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 Arnados 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), Arnados 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.
Arnado did not violate his oath of renunciation; at any rate, all doubts should be
resolved in favor of Arnados eligibility considering that he received the popular
mandate of the people of Kauswagan, Lanao del Norte as their duly elected mayor.
I completely agree with the ponencia that the Oath of Renunciation is not an empty
or formal ceremony that can be perfunctorily professed at any given day, only to be
disregarded on the next. As a mandatory requirement under Section 5 (2) of RA
9225, it allows former natural-born Filipino citizens who were deemed to have lost
their Philippine citizenship by reason of naturalization as citizens of a foreign
country to enjoy full civil and political rights, foremost among them, the privilege to
run for public office.
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.
The People of Kauswagan have spoken and
any doubt should be resolved in favor of
their verdict.
Separately from the issue of Arnados isolated act of using his US passport, we
cannot ignore the fact in a community as small as Kauswagan where the two
mayoralty candidates garnered a total of 11,309 votes, Baluas claim of Arnados
foreign citizenship and even the latters residency status could not be avoided but
be live election issues. The people of Kauswagan, Lanao del Norte, therefore, made
their own ruling when they elected Arnado as their mayor despite the "foreigner"
label sought to be pinned on him. At this point, even this Court should heed this
verdict by resolving all doubts regarding Arnados eligibility in his favor. This
approach, incidentally, is not a novel one38 as in Sinaca v. Mula,39 the Court has
already ruled:
When a candidate has received popular mandate, overwhelmingly and clearly
expressed, all possible doubts should be resolved in favor of the candidate's

eligibility for to rule otherwise is to defeat the will of the people. Above and beyond
all, the determination of the true will of the electorate should be paramount. It is
their voice, not ours or of anyone else, that must prevail. This, in essence, is the
democracy we continue to hold sacred.
No Basic to Rule that the Comelec
Committed Grave Abuse of
Discretion.
As my last point, the Comelec en banc considered and accepted as its factual
finding that Arnados explanation on the use of his US passport was sufficient
justification to conclude that he did not abandon his Oath of Renunciation. This
finding is undeniably based on evidence on record as the above or incorrect is not
material for as long as it is made on the basis of evidence on record, and was made
within the contemplation of the applicable law.40
In other words, the Comelec en banc properly exercised its discretion in acting on
the matter; thus, even if it hard erred in its conclusions, any error in reading the
evidence and in applying the law was not sufficiently grave to affect the exercise of
its jurisdiction.41 From these perspectives, this Court has no recourse but to dismiss
the present petition for failure to show any grave abuse of discretion on the part of
the Comelec.
In these lights, I vote for the dismissal of the petition.
ARTURO D. BRION
Associate Justice
Codilla v. Comelec
G.R. No. 150605

December 10, 2002

EUFROCINO M. CODILLA, SR., petitioner,

vs.
HON. JOSE DE VENECIA, ROBERTO P. NAZARENO, in their official capacities as
Speaker
and Secretary-General of the House of Representatives, respectively,
and MA. VICTORIA L. LOCSIN, respondents.
DECISION
PUNO, J.:
In a democracy, the first self-evident principle is that he who has been rejected by
the people cannot represent the people. Respondent Ma. Victoria L. Locsin lost to
petitioner Eufrocino M. Codilla, Sr. by 17,903 votes in the May 14, 2001 elections as
Representative of the 4th legislative district of Leyte. The most sophisticated legal
alchemy cannot justify her insistence that she should continue governing the people
of Leyte against their will. The enforcement of the sovereign will of the people is not
subject to the discretion of any official of the land.

This is a Petition for Mandamus and Quo Warranto directed against respondents
Speaker Jose De Venecia and Secretary-General Roberto P. Nazareno of the House of
Representatives to compel them to implement the decision of the Commission on
Elections en banc by (a) administering the oath of office to petitioner as the dulyelected Representative of the 4th legislative district of Leyte, and (b) registering the
name of the petitioner in the Roll of Members of the House of Representatives, and
against respondent Ma. Victoria L. Locsin for usurping, intruding into, and unlawfully
holding and exercising the said public office on the basis of a void proclamation.
The facts are uncontroverted. Petitioner and respondent Locsin were candidates for
the position of Representative of the 4th legislative district of Leyte during the May
14, 2001 elections. At that time, petitioner was the Mayor of Ormoc City while
respondent Locsin was the sitting Representative of the 4th legislative district of
Leyte. On May 8, 2001, one Josephine de la Cruz, a registered voter of Kananga,
Leyte, filed directly with the COMELEC main office a Petition for Disqualification1
against the petitioner for indirectly soliciting votes from the registered voters of
Kananga and Matag-ob, Leyte, in violation of Section 68 (a) of the Omnibus Election
Code. It was alleged that the petitioner used the equipments and vehicles owned by
the City Government of Ormoc to extract, haul and distribute gravel and sand to the
residents of Kananga and Matag-ob, Leyte, for the purpose of inducing, influencing
or corrupting them to vote for him. Attached to the petition are the (a) Affidavits of
Basilio Bates,2 Danilo D. Maglasang,3 Cesar A. Laurente;4 (b) Joint Affidavit of
Agripino C. Alferez and Rogelio T. Salvera;5 (c) Extract Records from the Police
Blotter executed by Police Superintendent Elson G. Pecho;6 and (d) Photographs
showing government dump trucks, haulers and surfacers and portions of public
roads allegedly filled-in and surfaced through the intercession of the respondent.7
The case was docketed as SPA No. 01-208 and assigned to the COMELEC's Second
Division.
On May 10, 2001, the COMELEC Second Division issued an Order delegating the
hearing and reception of evidence on the disqualification case to the Office of the
Regional Director of Region VIII.8 On May 11, 2001, the COMELEC Second Division
sent a telegram informing the petitioner that a disqualification case was filed
against him and that the petition was remanded to the Regional Election Director for
investigation.9
At the time of the elections on May 14, 2001, the Regional Election Director had yet
to hear the disqualification case. Consequently, petitioner was included in the list of
candidates for district representative and was voted for. The initial results showed
that petitioner was the winning candidate.
On May 16, 2001, before the counting could be finished, respondent Locsin joined as
intervenor in SPA No. 128 and filed a "Most Urgent Motion to Suspend Proclamation
of Respondent [herein petitioner]" with the COMELEC Second Division.10
Respondent Locsin alleged that "the evidence on record against respondent is very
strong and unless rebutted remains." She urged the Commission to set the hearing
of the disqualification case and prayed for the suspension of the proclamation of the
respondent "so as not to render the present disqualification case moot and

academic." A copy of the Motion was allegedly served on petitioner by registered

mail but no registry receipt was attached thereto.11
On May 18, 2001, respondent Locsin filed a "Second Most Urgent Motion to Suspend
Proclamation of Respondent" stating "there is clear and convincing evidence
showing that the respondent is undoubtedly guilty of the charges against him and
this remains unrebutted by the respondent." A copy of the Motion was sent to the
petitioner and the corresponding registry receipt was attached to the pleading.12
The records, however, do not show the date the petitioner received the motion.
On the same day, May 18, 2001, the COMELEC Second Division issued an Ex-Parte
Order13 directing the Provincial Board of Canvassers of Leyte to suspend the
proclamation of petitioner in case he obtains the highest number of votes by reason
of "the seriousness of the allegations in the petition for disqualification."14 It also
directed the Regional Election Director to speed up the reception of evidence and to
forward immediately the complete records together with its recommendation to the
Office of the Clerk of the Commission.15 As a result, petitioner was not proclaimed
as winner even though the final election results showed that he garnered 71,350
votes as against respondent Locsin's 53,447 votes.16
At the time that the COMELEC Second Division issued its Order suspending his
proclamation, the petitioner has yet to be summoned to answer the petition for
disqualification. Neither has said petition been set for hearing. It was only on May
24, 2001 that petitioner was able to file an Answer to the petition for his
disqualification with the Regional Election Director, alleging that: (a) he has not
received the summons together with the copy of the petition; (b) he became aware
of the matter only by virtue of the telegram sent by the COMELEC Second Division
informing him that a petition was filed against him and that the Regional Election
Director was directed to investigate and receive evidence therewith; and (c) he
obtained a copy of the petition from the COMELEC Regional Office No. 8 at his own
instance.17 Petitioner further alleged that the maintenance, repair and
rehabilitation of barangay roads in the municipalities of Matag-ob and Kananga were
undertaken without his authority, participation or directive as City Mayor of Ormoc.
He attached in his Answer the following: (a) Affidavit of Alex B. Borinaga;18 (b) Copy
of the Excerpt from the Minutes of the Regular Session of Barangay Monterico;19 (c)
Affidavit of Wilfredo A. Fiel;20 (d) Supplemental Affidavit of Wilfredo A. Fiel;21 and
(e) Affidavit of Arnel Y. Padayao.22
On May 25, 2001, petitioner filed a Motion to Lift Order of Suspension,23 alleging
that (a) he did not receive a copy of the Motion to Suspend his Proclamation and
hence, was denied the right to rebut and refute the allegations in the Motion; (b)
that he did not receive a copy of the summons on the petition for disqualification
and after personally obtaining a copy of the petition, filed the requisite answer only
on May 24, 2001; and (c) that he received the telegraph Order of the COMELEC
Second Division suspending his proclamation only on May 22, 2001. He attached
documentary evidence in support of his Motion to Lift the Suspension of his
proclamation, and requested the setting of a hearing on his Motion.24
On May 30, 2001, an oral argument was conducted on the petitioner's Motion and
the parties were ordered to submit their respective memoranda.25 On June 4, 2001,

petitioner submitted his Memorandum26 in support of his Motion assailing the

suspension of his proclamation on the grounds that: (a) he was not afforded due
process; (b) the order has no legal and factual basis; and (c) evidence of his guilt is
patently inexistent for the purpose of suspending his proclamation. He prayed that
his proclamation as winning congressional candidate be expediently made, even
while the disqualification case against him continue upon due notice and hearing.
He attached the following additional evidence in his Memorandum: (a) Copy of
certification issued by PNP Senior Inspector Benjamin T. Gorre;27 (b) Certification
issued by Elena S. Aviles, City Budget Officer;28 (c) Copy of certification issued by
Wilfredo A. Fiel, City Engineer of Ormoc;29 (d) Joint Affidavit of Antonio Patenio and
Pepito Restituto;30 and (e) Affidavits of Demetrio Brion,31 Igmedio Rita32 and
Gerardo Monteza.33 Respondent Locsin's memorandum also contained additional
affidavits of his witnesses.34
Petitioner's Motion to Lift the Order of Suspension, however, was not resolved.
Instead, on June 14, 2001, the COMELEC Second Division promulgated its
Resolution35 in SPA No. 01-208 which found the petitioner guilty of indirect
solicitation of votes and ordered his disqualification. It directed the "immediate
proclamation of the candidate who garnered the highest number of votes xxx." A
copy of said Resolution was sent by fax to the counsel of petitioner in Cebu City in
the afternoon of the following day.36
By virtue of the said Resolution, the votes cast for petitioner, totaling 71,350, were
declared stray even before said Resolution could gain finality. On June 15, 2001,
respondent Locsin was proclaimed as the duly elected Representative of the 4th
legislative district of Leyte by the Provincial Board of Canvassers of Leyte. It issued
a Certificate of Canvass of Votes and Proclamation of the Winning Candidates for
Member of the House of Representatives stating that "MA. VICTORIA LARRAZABAL
LOCSIN obtained a total of FIFTY THREE THOUSAND FOUR HUNDRED FORTY SEVEN
(53,447) votes representing the highest number of votes legally cast in the
legislative district for said office."37 Respondent Locsin took her oath of office on
June 18, 2001 and assumed office on June 30, 2001.
On June 20, 2001, petitioner seasonably filed with the COMELEC en banc a Motion
for Reconsideration38 from the June 14, 2001 Resolution of the COMELEC Second
Division which ordered his disqualification, as well as an Addendum to the Motion
for Reconsideration.39 Petitioner alleged in his Motion for Reconsideration that the
COMELEC Second Division erred: (1) in disqualifying petitioner on the basis solely of
the dubious declaration of the witnesses for respondent Locsin; (2) in adopting in
toto the allegations of the witnesses for respondent Locsin; and (3) in promulgating
the resolution in violation of its own rules of procedure and in directing therein the
immediate proclamation of the second highest 'vote getter.' Respondent Locsin and
her co-petitioner in SPA No. 01-208 filed a joint Opposition to the Motion for
Reconsideration.40
On June 21, 2001, petitioner filed with the COMELEC en banc a Petition for
Declaration of Nullity of Proclamation,41 docketed as SPC No. 01-324, assailing the
validity of the proclamation of respondent Locsin who garnered only the second
highest number of votes. Respondent Locsin filed her Answer alleging that: (1) the
Commission lost jurisdiction to hear and decide the case because of the

proclamation of Locsin and that any question on the "election, returns, and
qualification" of Locsin can only be taken cognizance of by the House of
Representatives Electoral Tribunal (HRET); (2) the case should be filed and heard in
the first instance by a Division of the Commission and not directly by the
Commission en banc; and (3) the proclamation of Locsin was valid because she
received the highest number of valid votes cast, the votes of Codilla being stray.
On June 28, 2001, petitioner filed an Urgent Manifestation42 stating that he was
deprived of a fair hearing on the disqualification case because while the
documentary evidence adduced in his Memorandum was in support of his Motion for
the lifting of the suspension of his proclamation, the COMELEC Second Division
instead ruled on the main disqualification case. In consonance with his prayer that a
full-dress hearing be conducted on the disqualification case, he submitted Affidavits
of additional witnesses43 which he claims would refute and substantially belie the
allegations of petitioner's/intervenor's witnesses. A Reply,44 Rejoinder45 and SurRejoinder46 were respectively filed by the parties. Consequently, the motion for
reconsideration in SPA No. 01-208 and the petition for declaration of nullity in SPC
No. 01-324 were submitted for resolution.
From the records, it appears that initially, a "Resolution" penned by Commissioner
Rufino S.B. Javier, dated July 24, 2001, was submitted to the Office of the Chairman,
dismissing the petition for declaration of nullity for lack of jurisdiction and denying
the motion for reconsideration filed by petitioner Codilla.47 Commissioners
Florentino A. Tuason, Jr. and Resurreccion Z. Borra submitted their respective
dissenting opinions48 to the Javier resolution. It bears emphasis that Commissioner
Tuason, Jr. was the ponente of the Resolution of the COMELEC Second Division which
ordered the disqualification of petitioner but after considering the additional
evidence presented by the latter, he concluded that the totality of the evidence was
clearly in petitioner's favor. Equally worth mentioning is the fact that Commissioner
Ralph C. Lantion, who was the Presiding Commissioner of the Second Division, also
dissented and voted to grant Codilla's motion for reconsideration on the ground that
"[T]he people of Leyte have spoken and I respect the electorate's will. x x x." 49
On August 29, 2001, then COMELEC Chairman Alfredo L. Benipayo issued a "Vote
and Opinion and Summary of Votes" reversing the resolution of the Second Division
and declaring the proclamation of respondent Locsin as null and void. The
dispositive portion reads:
"JUDGMENT
WHEREFORE, in view of all the foregoing considerations, I concur with Commissioner
Resurreccion Z. Borra, Commissioner Florentino A. Tuason, Jr. and Commissioner
Ralph C. Lantion, in SPA No. 01-208, to GRANT the motion for reconsideration and to
REVERSE the resolution of the Commission (Second Division) promulgated on June
1, 2001, disqualifying Codilla; and subsequently, in SPC No. 01-324, to GRANT the
petition of Eufrocino M. Codilla, Sr., and declare as null and void the proclamation of
losing candidate Locsin.
Accordingly:

1. On the Motion for Reconsideration of the disqualification resolution against

Codilla, promulgated by the Commission (Second Division) on June 14, 2001 (SPA
No. 01-208), I vote:
(a) to GRANT the Motion for Reconsideration of respondent-movant Eufrocino M.
Codilla, Sr., and to REVERSE the Resolution of the Commission (Second Division)
promulgated on June 14, 2001, for insufficiency of evidence;
(b) to lift the order of suspension of proclamation of petitioner Codilla, issued by the
Commission (Second Division) on May 18, 2001, having been issued without hearing
and without any finding that the evidence of guilt of petitioner Codilla is strong and,
thus, null and void;
(c) to nullify the order contained in the Resolution of the Commission (Second
Division) promulgated on June 14, 2001, for "(t)he immediate proclamation of the
candidate who garnered the highest number of votes, to the exclusion of
respondent" and the concurrent order for "the Provincial Board of Canvasser (sic) of
Leyte to immediately reconvene and thereafter proclaim forthwith the candidate
who obtained the highest number of votes counting out the Respondent" the same
being violative of election laws, established jurisprudence, and resolutions of the
Commission;
(d) to nullify the ruling contained in the Resolution of the Commission (Second
Division) promulgated o June 14, 2001, that the votes of respondent Codilla are
"considered stray and invalid" said ruling being issued on the basis of an
inapplicable decision, and contrary to established jurisprudence;
(e) to order the Provincial Board of Canvassers of Leyte, upon the finality of this
resolution, to reconvene and proclaim petitioner Codilla as the winning candidate for
Representative of the Fourth Legislative district of Leyte to comply with its
ministerial duty to proclaim the candidate who garnered the highest number of
votes in the elections for that position; and
(f) to order intervenor-oppositor Locsin, upon the finality of this resolution, to vacate
the office of Representative of the House of Representatives representing the Fourth
legislative district of Leyte and, for this purpose, to inform the House of
Representatives through the Honorable Speaker of this resolution for its attention
and guidance; and
2. On the petition for Declaration of Nullity of proclamation of respondent Ma.
Victoria L. Locsin (SPC No. 01-324), I vote:
(a) to GRANT the petition of Eufrocino M. Codilla, Sr., and declare as null and void
the proclamation of losing candidate Locsin, the proclamation being violative of
election laws, established jurisprudence, and resolutions of the Commission on
Elections;
(b) to lift the order of suspension of proclamation of petitioner Codilla, issued by the
Commission (Second Division) on May 18, 2001, in SPA No. 01-208, having been

issued without hearing and without any finding that the evidence of guilt of
petitioner Codilla is strong and, thus, null and void;
(c) to nullify the order contained in the Resolution of the Commission (Second
Division) promulgated on June 14, 2001, in SPA No. 01-208, for "(t)he immediate
proclamation of the candidate who garnered the highest number of votes, to the
exclusion of respondent" and the concurrent order for "the provincial Board of
Canvasser (sic) of Leyte to immediately reconvene and thereafter proclaim forthwith
the candidate who obtained the highest number of votes counting out the
Respondent" the same being violative of election laws, established jurisprudence,
and resolutions of the Commission;
(d) to nullify the ruling contained in the Resolution of the Commission (Second
Division) promulgated on June 14, 2001, in SPA No. 01-208, that the votes of
respondent Codilla are "considered stray and invalid" said ruling being issued on the
basis of an inapplicable decision, and contrary to established jurisprudence;
(e) to order the provincial Board of Canvassers of Leyte, upon the finality of this
resolution, to reconvene and proclaim petitioner Codilla as the winning candidate for
Representative of the Fourth legislative district of Leyte he (sic) having garnered the
highest number of votes in the elections for the position; and
(f) to order respondent Locsin, upon the finality of this resolution, to vacate the
office of Representative of the House of Representatives representing the Fourth
Legislative district of Leyte and, for this purpose, to inform the House of
Representatives through the Honorable Speaker of this resolution for its attention
and guidance.
Summary of Votes
Considering the FOUR (4) VOTES of the Chairman and Commissioners Resurreccion
Z. Borra, Florentino A. Tuason, Jr., and Ralph C. Lantion, to grant the Motion for
Reconsideration of Codilla and reverse the disqualification Resolution of the
Commission (Second Division) in SPA No. 01-208, promulgated on June 14, 2001,
and as an inevitable consequence, in voting to grant the petition for declaration of
nullity of the proclamation of Ma. Victoria L. Locsin in SPC No. 01-324, the
verdict/opinion of the Chairman and the three (3) Commissioners taken together
now stands, as it is, the MAJORITY DECISION of the Commission En Banc in both
cases; and the "Resolution" submitted by three (3) Commissioners, namely,
Commissioner Rufino S.B. Javier, Commissioner Luzviminda G. Tancangco, and
Commissioner Mehol K. Sadain, is considered, as it is, the MINORITY DECISION of the
Commission En Banc in both cases.
The MAJORTIY DECISION was arrived at after proper consultation with those who
joined the majority. The Chairman and the three (3) Commissioners comprising the
majority decided that no one will be assigned to write a Majority Decision. Instead,
each one will write his own separate opinion. Commissioners Borra, Tuason, Jr. and
the undersigned Chairman submitted separate opinions. Commissioner Lantion
wrote an explanation on his vote."50

The aforequoted judgment was adopted in a "Vote of Adoption" signed by

Commissioners Ralph C. Lantion, Resurreccion Z. Borra and Florentino A. Tuason,
Jr.51
Respondent Locsin did not appeal from this decision annulling her proclamation.
Instead, she filed a "Comment and Manifestation"52 with the COMELEC en banc
questioning the procedure and the manner by which the decision was issued. In
addition, respondent Locsin requested and was issued an opinion by House of
Representatives Executive Director and Chief Legal Counsel Leonardo B. Palicte III
declaring that the COMELEC has no jurisdiction to nullify the proclamation of
respondent Locsin after she had taken her oath and assumed office since it is the
HRET which is the sole judge of election, returns and qualifications of Members of
the House.53 Relying on this opinion, respondent Locsin submitted a written
privileged speech to the House during its regular session on September 4, 2001,
where she declared that she will not only disregard but will openly defy and disobey
the COMELEC en banc resolution ordering her to vacate her position.54
On September 6, 2001, the COMELEC en banc issued an Order55 constituting the
members of the Provincial Board of Canvassers of Leyte to implement the aforesaid
decision. It likewise ordered the Board to reconvene and "proclaim the candidate
who obtained the highest number of votes in the district, as the duly-elected
Representative of the Fourth Legislative district of Leyte, and accordingly issue a
Certificate of Canvass and Proclamation of Winning Candidate for Member of the
House of Representatives x x x, based on the city/municipal certificates of canvass
submitted beforehand to the previous Provincial Board of Canvassers of Leyte x x
x."
On September 12, 2001, petitioner Codilla was proclaimed by the Provincial Board
of Canvassers as the duly-elected Representative of the 4th legislative district of
Leyte, having obtained a total of 71,350 votes representing the highest number of
votes cast in the district.56 On the same day, petitioner took his oath of office
before Executive Judge Fortunito L. Madrona of the Regional Trial Court of Ormoc
City.57
On September 14, 2001, petitioner wrote the House of Representatives, thru
respondent Speaker De Venecia, informing the House of the August 29, 2001
COMELEC en banc resolution annulling the proclamation of respondent Locsin, and
proclaiming him as the duly-elected Representative of the 4th legislative district of
Leyte.58 Petitioner also served notice that "I am assuming the duties and
responsibilities as Representative of the fourth legislative district of Leyte to which
position I have been lawfully elected and proclaimed. On behalf of my constituents, I
therefore expect that all rights and privileges intended for the position of
Representative of the fourth legislative district of Leyte be accorded to me,
including all physical facilities and staff support." On the basis of this letter, a
Memorandum59 dated October 8, 2001 was issued by Legal Affairs Deputy
Secretary-General Gaudencio A. Mendoza, Jr., for Speaker De Venecia, stating that
"there is no legal obstacle to complying with the duly promulgated and now final
and executory COMELEC Decision of August 29, 2001 x x x."

These notwithstanding, and despite receipt by the House of Representatives of a

copy of the COMELEC en banc resolution on September 20, 2001,60 no action was
taken by the House on the letter-appeal of petitioner. Hence, petitioner sought the
assistance of his party, LAKAS-NUCD-UMDP, which sent a letter61 addressed to
respondent Speaker De Venecia, dated October 25, 2001, and signed by Party
President Teofisto T. Guingona, Jr., Secretary-General Heherson T. Alvarez, and
Region VIII Party Chairman Sergio Antonio F. Apostol, requesting the House of
Representatives to act decisively on the matter in order that petitioner "can avail of
whatever remedy is available should their action remain unfavorable or otherwise
undecisive."
In response, Speaker De Venecia sent a letter62 dated October 30, 2001, stating
that:
"We recognize the finality of the COMELEC decision and we are inclined to sustain it.
However, Rep. Locsin has officially notified the HOUSE in her privilege speech,
inserted in the HOUSE Journal dated September 4, 2001, that she shall 'openly defy
and disobey' the COMELEC ruling. This ultimately means that implementing the
decision would result in the spectacle of having two (2) legislators occupying the
same congressional seat, a legal situation, the only consideration, that effectively
deters the HOUSE's liberty to take action.
In this light, the accepted wisdom is that the implementation of the COMELEC
decision is a matter that can be best, and with finality, adjudicated by the Supreme
Court, which, hopefully, shall act on it most expeditiously." (emphases supplied)
Hence, the present petition for mandamus and quo warranto.
Petitioner submits that by virtue of the resolution of the COMELEC en banc which
has become final and executory for failure of respondent Locsin to appeal
therefrom, it has become the ministerial duty: (1) of the Speaker of the House of
Representatives, as its Administrative Head and Presiding Officer, to implement the
said resolution of the COMELEC en banc by installing him as the duly-elected
Representative of the 4th legislative district of Leyte; and (2) of the SecretaryGeneral, as official custodian of the records of the House, to formally register his
name in the Roll of Members of the House and delete the name of respondent
Locsin therefrom. Petitioner further contends that respondent Locsin has been
usurping and unlawfully holding the public office of Representative of the 4th
legislative district of Leyte considering that her premature proclamation has been
declared null and void by the COMELEC en banc. He alleges that the action or
inaction of public respondents has deprived him of his lawful right to assume the
office of Representative of the 4th legislative district of Leyte.
In his Comment,63 public respondent Speaker De Venecia alleged that mandamus
will not lie to compel the implementation of the COMELEC decision which is not
merely a ministerial duty but one which requires the exercise of discretion by the
Speaker of the House considering that: (1) it affects the membership of the House;
and (2) there is nothing in the Rules of the House of Representatives which imposes
a duty on the House Speaker to implement a COMELEC decision that unseats an
incumbent House member.

In his Comment,64 public respondent Secretary-General Nazareno alleged that in

reading the name of respondent Locsin during the roll call, and in allowing her to
take her oath before the Speaker-elect and sit as Member of the House during the
Joint Session of Congress, he was merely performing official acts in compliance with
the opinions65 rendered by House of Representatives Chief Counsel and Executive
Director Leonardo C. Palicte III stating that the COMELEC has no jurisdiction to
declare the proclamation of respondent Locsin as null and void since it is the HRET
which is the sole judge of all election, returns and qualifications of Members of the
House. He also contends that the determination of who will sit as Member of the
House of Representatives is not a ministerial function and cannot, thus, be
compelled by mandamus.
Respondent Locsin, in her Comment,66 alleged that the Supreme Court has no
original jurisdiction over an action for quo warranto involving a member of the
House of Representatives for under Section 17, Article VI of the Constitution it is the
HRET which is the sole judge of all contests relating to the election, returns and
qualifications of Members of the House of Representatives. She likewise asserts that
this Court cannot issue the writ of mandamus against a co-equal legislative
department without grossly violating the principle of separation of powers. She
contends that the act of recognizing who should be seated as a bona fide member
of the House of Representatives is not a ministerial function but a legislative
prerogative, the performance of which cannot be compelled by mandamus.
Moreover, the prayer for a writ of mandamus cannot be directed against the
Speaker and Secretary-General because they do not have the authority to enforce
and implement the resolution of the COMELEC.
Additionally, respondent Locsin urges that the resolution of the COMELEC en banc is
null and void for lack of jurisdiction. First, it should have dismissed the case pending
before it after her proclamation and after she had taken her oath of office.
Jurisdiction then was vested in the HRET to unseat and remove a Member of the
House of Representatives. Second, the petition for declaration of nullity is clearly a
pre-proclamation controversy and the COMELEC en banc has no original jurisdiction
to hear and decide a pre-proclamation controversy. It must first be heard by a
COMELEC Division. Third, the questioned decision is actually a "hodge-podge"
decision because of the peculiar manner in which the COMELEC disposed of the
case.
Finally, respondent Locsin asserts that the matter of her qualification and eligibility
has been categorically affirmed by the HRET when it dismissed the quo warranto
case filed against her, docketed as HRET Case No. 01-043, entitled "Paciano Travero
vs. Ma. Victoria Locsin," on the ground that "the allegations stated therein are not
proper grounds for a petition for quo warranto against a Member of the House of
Representatives under section 253 of the Omnibus Election Code and Rule 17 of the
HRET Rules, and that the petition was filed late."67
In his Reply,68 petitioner asserts that the remedy of respondent Locsin from the
COMELEC decision was to file a petition for certiorari with the Supreme Court, not to
seek an opinion from the Chief Legal Counsel of the House of Representatives; that
the HRET has no jurisdiction over a petition for declaration of nullity of proclamation

which is based not on ineligibility or disloyalty, but by reason that the candidate
proclaimed as winner did not obtain the highest number of votes; that the petition
for annulment of proclamation is a pre-proclamation controversy and, hence, falls
within the exclusive jurisdiction of the COMELEC pursuant to section 242 of B.P. Blg.
88169 and section 3, Article IX (C) of the Constitution; that respondent Speaker De
Venecia himself recognizes the finality of the COMELEC decision but has decided to
refer the matter to the Supreme Court for adjudication; that the enforcement and
implementation of a final decision of the COMELEC involves a ministerial act and
does not encroach on the legislative power of Congress; and that the power to
determine who will sit as Member of the House does not involve an exercise of
legislative power but is vested in the sovereign will of the electorate.
The core issues in this case are: (a) whether the proclamation of respondent Locsin
by the COMELEC Second Division is valid; (b) whether said proclamation divested
the COMELEC en banc of jurisdiction to review its validity; and (c) assuming the
invalidity of said proclamation, whether it is the ministerial duty of the public
respondents to recognize petitioner Codilla, Sr. as the legally elected Representative
of the 4th legislative district of Leyte vice respondent Locsin.
I
Whether the proclamation of respondent Locsin is valid.
After carefully reviewing the records of this case, we find that the proclamation of
respondent Locsin is null and void for the following reasons:
First. The petitioner was denied due process during the entire proceedings leading
to the proclamation of respondent Locsin.
COMELEC Resolution Nos. 340270 sets the procedure for disqualification cases
pursuant to section 68 of the Omnibus Election Code, viz:
"C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE OMNIBUS
ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR
POSSESSING SAME GROUNDS FOR DISQUALIFICATION
(1) The verified petition to disqualify a candidate pursuant to Sec. 68 of the
Omnibus Election Code and the verified petition to disqualify a candidate for lack of
qualifications or possessing same grounds for disqualification, may be filed any day
after the last day for filing of certificates of candidacy but not later than the date of
proclamation.
(2) The petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus
Election Code shall be filed in ten (10) legible copies by any citizen of voting age, or
duly registered political party, organization or coalition of political parties against
any candidate who in an action or protest in which he is a party is declared by final
decision of a competent court guilty of, or found by the Commission of:
2.a having given money or other material consideration to influence, induce or
corrupt the voters or public officials performing electoral functions;

2.b having committed acts of terrorism to enhance his candidacy;

2.c having spent in his election campaign an amount in excess of that allowed by
the Omnibus Election Code;
2.d having solicited, received or made any contribution prohibited under Sections
89, 95, 96, 97 and 104 of the Omnibus Election Code;
2.e having violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v,
and cc, sub-paragraph 6 of the Omnibus Election Code, shall be disqualified from
continuing as a candidate, or if he has been elected, from holding the office.
xxxxxxxxx
(4) Upon payment of the filing fee of P1,000.00 and legal research fee of P20.00, the
offices concerned shall docket the petition and assign to it a docket number which
must be consecutive, according to the order of receipt and must bear the year and
prefixed as SPA with the corresponding initial of the name of the office, i.e. SPA
(RED) No. C01-001; SPA (PES) No. C01-001;
(5) Within three (3) days from filing of the petitions, the offices concerned shall
issue summons to the respondent candidate together with a copy of the petition
and its enclosures, if any;
(6) The respondent shall be given three (3) days from receipt of summons within
which to file his verified answer (not a motion to dismiss) to the petition in ten (10)
legible copies, serving a copy thereof upon the petitioner. Grounds for Motion to
Dismiss may be raised as an affirmative defense;
(7) The proceeding shall be summary in nature. In lieu of the testimonies, the
parties shall submit their affidavits or counter-affidavits and other documentary
evidences including their position paper;
(8) The hearing must be completed within ten (10) days from the date of the filing
of the answer. The hearing officer concerned shall submit to the Clerk of the
Commission through the fastest means of communication, his findings, reports and
recommendations within five (5) days from the completion of the hearing and
reception of evidence together with the complete records of the case;
(9) Upon receipt of the records of the case of the findings, reports and
recommendation of the hearing officer concerned, the Clerk of the Commission shall
immediately docket the case consecutively and calendar the same for raffle to a
division;
(10) The division to whom the case is raffled, shall after consultation, assign the
same to a member who shall pen the decision, within five (5) days from the date of
consultation."

Resolution No. 3402 clearly requires the COMELEC, through the Regional Election
Director, to issue summons to the respondent candidate together with a copy of the
petition and its enclosures, if any, within three (3) days from the filing of the petition
for disqualification. Undoubtedly, this is to afford the respondent candidate the
opportunity to answer the allegations in the petition and hear his side. To ensure
compliance with this requirement, the COMELEC Rules of Procedure requires the
return of the summons together with the proof of service to the Clerk of Court of the
COMELEC when service has been completed, viz:
"Rule 14. Summons
xxxxxxxxx
Section 5. Return.- When the service has been completed by personal service, the
server shall give notice thereof, by registered mail, to the protestant or his counsel
and shall return the summons to the Clerk of Court concerned who issued it,
accompanied with the proof of service.
Section 6. Proof of Service.- Proof of service of summons shall be made in the
manner provided for in the Rules of Court in the Philippines."
Thereafter, hearings, to be completed within ten (10) days from the filing of the
Answer, must be conducted. The hearing officer is required to submit to the Clerk of
the Commission his findings, reports and recommendations within five (5) days from
the completion of the hearing and reception of evidence together with the complete
records of the case.
(a) Petitioner was not notified of the petition for his disqualification through the
service of summons nor of the Motions to suspend his proclamation.
The records of the case do not show that summons was served on the petitioner.
They do not contain a copy of the summons allegedly served on the petitioner and
its corresponding proof of service. Furthermore, private respondent never rebutted
petitioner's repeated assertion that he was not properly notified of the petition for
his disqualification because he never received summons.71 Petitioner claims that
prior to receiving a telegraphed Order from the COMELEC Second Division on May
22, 2001, directing the District Board of Canvassers to suspend his proclamation, he
was never summoned nor furnished a copy of the petition for his disqualification. He
was able to obtain a copy of the petition and the May 22 Order of the COMELEC
Second Division by personally going to the COMELEC Regional Office on May 23,
2001. Thus, he was able to file his Answer to the disqualification case only on May
24, 2001.
More, the proclamation of the petitioner was suspended in gross violation of section
72 of the Omnibus Election Code which provides:
"Sec. 72. Effects of disqualification cases and priority.- The Commission and the
courts shall give priority to cases of disqualification by reason of violation of this Act
to the end that a final decision shall be rendered not later than seven days before
the election in which the disqualification is sought.

Any candidate who has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. Nevertheless, if for
any reason, a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in such
election, his violation of the provisions of the preceding sections shall not prevent
his proclamation and assumption to office." (emphases supplied)
In the instant case, petitioner has not been disqualified by final judgment when the
elections were conducted on May 14, 2001. The Regional Election Director has yet
to conduct hearing on the petition for his disqualification. After the elections,
petitioner was voted in office by a wide margin of 17,903. On May 16, 2001,
however, respondent Locsin filed a Most Urgent Motion for the suspension of
petitioner's proclamation. The Most Urgent Motion contained a statement to the
effect that a copy was served to the petitioner through registered mail. The records
reveal that no registry receipt was attached to prove such service.72 This violates
COMELEC Rules of Procedure requiring notice and service of the motion to all
parties, viz:
"Section 4. Notice.- Notice of a motion shall be served by the movant to all parties
concerned, at least three (3) days before the hearing thereof, together with a copy
of the motion. For good cause shown, the motion may be heard on shorter notice,
especially on matters which the Commission or the Division may dispose of on its
own motion.
The notice shall be directed to the parties concerned and shall state the time and
place of the hearing of the motion.
Section 5. Proof of Service.- No motion shall be acted upon by the Commission
without proof of service of notice thereof, except when the Commission or a Division
is satisfied that the rights of the adverse party or parties are not affected."
Respondent's Most Urgent Motion does not fall under the exceptions to notice and
service of motions. First, the suspension of proclamation of a winning candidate is
not a matter which the COMELEC Second Division can dispose of motu proprio.
Section 6 of R.A. No. 664673 requires that the suspension must be "upon motion by
the complainant or any intervenor", viz:
"Section 6. Effect of Disqualification Case.- Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason, a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission (COMELEC) shall
continue with the trial or hearing of the action, inquiry, or protest and, upon motion
of the complainant or any intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the evidence of his
guilt is strong." (emphases supplied)

Second, the right of an adverse party, in this case, the petitioner, is clearly affected.
Given the lack of service of the Most Urgent Motion to the petitioner, said Motion is
a mere scrap of paper.74 It cannot be acted upon by the COMELEC Second Division.
On May 18, 2001 at exactly 5:00 p.m.,75 respondent Locsin filed a Second Most
Urgent Motion for the suspension of petitioner's proclamation. Petitioner was served
a copy of the Second Motion again by registered mail. A registry receipt76 was
attached evidencing service of the Second Most Urgent Motion to the petitioner but
it does not appear when the petitioner received a copy thereof. That same day, the
COMELEC Second Division issued an Order suspending the proclamation of
petitioner. Clearly, the petitioner was not given any opportunity to contest the
allegations contained in the petition for disqualification. The Order was issued on
the very same day the Second Most Urgent Motion was filed. The petitioner could
not have received the Second Most Urgent Motion, let alone answer the same on
time as he was served a copy thereof by registered mail.
Under section 6 of R.A. No. 6646, the COMELEC can suspend proclamation only
when evidence of the winning candidate's guilt is strong. In the case at bar, the
COMELEC Second Division did not make any specific finding that evidence of
petitioner's guilt is strong. Its only basis in suspending the proclamation of the
petitioner is the "seriousness of the allegations" in the petition for disqualification.
Pertinent portion of the Order reads:
"Without giving due course to the petition xxx the Commission (2nd Division),
pursuant to Section 72 of the Omnibus Election Code in relation to Section 6,
Republic Act No. 6646 xxx and considering the serious allegations in the petition,
hereby directs the Provincial Board of Canvassers of Leyte to suspend the
proclamation of respondent, if winning, until further orders."77 (emphases supplied)
We hold that absent any finding that the evidence on the guilt of the petitioner is
strong, the COMELEC Second Division gravely abused its power when it suspended
his proclamation.
(b) The COMELEC Second Division did not give ample opportunity to the petitioner
to adduce evidence in support of his defense in the petition for his disqualification.
All throughout the proceeding, no hearing was conducted on the petition for
disqualification in gross violation of section 6 of R.A. No. 6646 which specifically
enjoins the COMELEC to "continue with the trial or hearing of the action, inquiry, or
protest." This is also in violation of COMELEC Resolution No. 3402 requiring the
Regional Election Director to complete the hearing and reception of evidence within
ten (10) days from the filing of the Answer, and to submit his findings, reports, and
recommendations within the five (5) days from completion of the hearing and the
reception of evidence.
Petitioner filed a Motion to Lift the Order of Suspension of his proclamation on May
25, 2001. Although an oral argument on this Motion was held, and the parties were
allowed to file their respective memoranda, the Motion was not acted upon. Instead,
the COMELEC Second Division issued a Resolution on the petition for disqualification
against the petitioner. It was based on the following evidence: (a) the affidavits

attached to the Petition for Disqualification; (b) the affidavits attached to the
Answer; and (c) the respective memoranda of the parties.
On this score, it bears emphasis that the hearing for Motion to Lift the Order of
Suspension cannot be substituted for the hearing in the disqualification case.
Although intrinsically linked, it is not to be supposed that the evidence of the parties
in the main disqualification case are the same as those in the Motion to Lift the
Order of Suspension. The parties may have other evidence which they may deem
proper to present only on the hearing for the disqualification case. Also, there may
be evidence which are unavailable during the hearing for the Motion to Lift the
Order of Suspension but which may be available during the hearing for the
disqualification case.
In the case at bar, petitioner asserts that he submitted his Memorandum merely to
support his Motion to Lift the Order of Suspension. It was not intended to answer
and refute the disqualification case against him. This submission was sustained by
the COMELEC en banc. Hence, the members of the COMELEC en banc concluded,
upon consideration of the additional affidavits attached in his Urgent Manifestation,
that the evidence to disqualify the petitioner was insufficient. More specifically, the
ponente of the challenged Resolution of the COMELEC Second Division held:
"Indeed, I find from the records that the May 30, 2001 hearing of the COMELEC
(Second Division) concerns only the incident relating to the Motion to Lift Order of
Suspension of Proclamation. It also appears that the order for the submission of the
parties' respective memoranda was in lieu of the parties' oral argument on the
motion. This would explain the fact that Codilla's Memorandum refers mainly to the
validity of the issuance of the order of suspension of proclamation. There is,
however, no record of any hearing on the urgent motion for the suspension of
proclamation. Indeed, it was only upon the filing of the Urgent Manifestation by
Codilla that the Members of the Commission (Second Division) and other Members
of the Commission en banc had the opportunity to consider Codilla's affidavits. This
time, Codilla was able to present his side, thus, completing the presentation of
evidentiary documents from both sides."78 (emphases supplied)
Indeed, careful reading of the petitioner's Memorandum shows that he confined his
arguments in support of his Motion to Lift the Order of Suspension. In said
Memorandum, petitioner raised the following issues: (a) he was utterly deprived of
procedural due process, and consequently, the order suspending his proclamation is
null and void; (b) the said order of suspension of proclamation has no legal and
factual basis; and (c) evidence of guilt on his part is patently inexistent for the
purpose of directing the suspension of his proclamation.79 He urged the COMELEC
Second Division to conduct a full dress hearing on the main disqualification case
should the suspension be lifted.80
(c) the Resolution of the COMELEC Second Division disqualifying the petitioner is not
based on substantial evidence.
The Resolution of the COMELEC Second Division cannot be considered to be based
on substantial evidence. It relied merely on affidavits of witnesses attached to the
petition for disqualification. As stressed, the COMELEC Second Division gave

credence to the affidavits without hearing the affiants. In reversing said Resolution,
the COMELEC en banc correctly observed:
"Lacking evidence of Codilla, the Commission (Second Division) made its decisions
based mainly on the allegation of the petitioner and the supporting affidavits. With
this lopsided evidence at hand, the result was predictable. The Commission (Second
Division) had no choice. Codilla was disqualified."81
Worse, the Resolution of the COMELEC Second Division, even without the evidence
coming from the petitioner, failed to prove the gravamen of the offense for which he
was charged.82
Petitioner allegedly violated section 68 (a) of the Omnibus Election Code which
reads:
"Section 68. Disqualifications.- Any candidate who, in action or protest in which he is
a party is declared by final decision of a competent court guilty of, or found by the
Commission of having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing official functions, xxx shall
be disqualified from continuing as candidate, or if he has been elected, from holding
office"
To be disqualified under the above-quoted provision, the following elements must be
proved: (a) the candidate, personally or through his instructions, must have given
money or other material consideration; and (b) the act of giving money or other
material consideration must be for the purpose of influencing, inducing, or
corrupting the voters or public officials performing electoral functions.
In the case at bar, the petition for disqualification alleged that (a) petitioner ordered
the extraction, hauling and distribution of gravel and sand, and (b) his purpose was
to induce and influence the voters of Kananga and Matag-ob, Leyte to vote for him.
Pertinent portion of the petition reads:
"[T]he respondent [herein petitioner], within the election period, took advantage of
his current elective position as City Mayor of Ormoc City by illegally and unlawfully
using during the prohibited period, public equipments and vehicles belonging to and
owned by the City Government of Ormoc City in extracting, hauling and distributing
gravel and sand to the residents and voters of the Municipalities of Kananga and
Matag-ob Leyte, well within the territorial limits of the 4th Congressional District of
Leyte, which acts were executed without period, and clearly for the illicit purpose of
unduly inducing or directly corrupting various voters of Kananga and Matag-ob,
within the 4th legislative district of Leyte, for the precise purpose of inducing and
influencing the voters/beneficiaries of Kananga and Matag-ob, Leyte to cast their
votes for said respondent."83
The affidavits relied upon by the COMELEC Second Division failed to prove these
allegations. For instance, Cesar A. Laurente merely stated that he saw three (3) tenwheeler dump trucks and a Hyundai Payloader with the markings "Ormoc City
Government" extracting and hauling sand and gravel from the riverbed adjacent to
the property owned by the Codilla family.84

Agripino C. Alferez and Rogelio T. Sulvera in their Joint Affidavit merely stated that
they saw white trucks owned by the City Government of Ormoc dumping gravel and
sand on the road of Purok 6, San Vicente, Matag-ob, Leyte. A payloader then
scattered the sand and gravel unloaded by the white trucks.85
On the other hand, Danilo D. Maglasang, a temporary employee of the City
Government of Ormoc assigned to check and record the delivery of sand and gravel
for the different barangays in Ormoc, stated as follows:
"3. That on April 20, 2001, I was ordered by Engr. Arnel Padayo, an employee of the
City Engineering Office, Ormoc City to go to Tagaytay, Kangga (sic), Leyte as that
will be the source of the sand and gravel. I inquired why we had to go to Kananga
but Engr. Padayao said that it's not a problem as it was Mayor Eufrocino M. Codilla,
Sr. who ordered this and the property is owned by the family of Mayor Codilla. We
were to deliver sand and gravel to whoever requests from Mayor Codilla."86
Similarly, the Affidavit of Basilio Bates cannot prove the offense charged against the
petitioner. He alleged that on April 18, 2001, a white truck with the marking "City
Government of Ormoc" came to his lot at Montebello, Kananga, Leyte and unloaded
mixed sand and that the driver of the truck told him to "vote for Codilla as a (sic)
congressman during election."87 His statement is hearsay. He has no personal
knowledge of the supposed order of the petitioner to distribute gravel and sand for
the purpose of inducing the voters to vote for him. The same could be said about
the affidavits of Randy T. Merin,88 Alfredo C. De la Pea,89 Miguel P. Pandac,90
Paquito Bregeldo, Cristeta Alferez , Glicerio Rios,91 Romulo Alkuino, Sr.,92 Abner
Casas,93 Rita Trangia,94 and Judith Erispe95 attached to respondent Locsin's
Memorandum on the Motion to Lift the Suspension of Proclamation.
Also valueless are the affidavits of other witnesses96 of respondent Locsin, all
similarly worded, which alleged that the petitioner ordered the repair of the road in
Purok 6, Barangay San Vicente, Matag-ob, Leyte and the flattening of the area
where the cockfights were to be held. These allegations are extraneous to the
charge in the petition for disqualification. More importantly, these allegations do not
constitute a ground to disqualify the petitioner based on section 68 of the Omnibus
Election Code.
To be sure, the petition for disqualification also ascribed other election offenses
against the petitioner, particularly section 261 of the Omnibus Election Code, viz:
"Section 261. Prohibited Acts.- The following shall be guilty of an election offense:
(a) Vote-buying and vote-selling.- (1) Any person who gives, offers or promises
money or anything of value, gives or promises any office or employment, franchise
or grant, public or private, or make or offers to make an expenditure, directly or
indirectly, or cause an expenditure to be made to any person, association,
corporation, entity or community in order to induce anyone or the public in general,
to vote for or against any candidate or withhold his vote in the election, or to vote
for or against any aspirant for the nomination or choice of a candidate in a
convention or similar selection process of a political party.

xxxxxxxxx
(o) Use of public funds, money deposited in trust, equipment, facilities owned or
controlled by the government for an election campaign.- Any person who uses
under any guise whatsoever directly or indirectly, xxx (3) any equipment, vehicle,
facility, apparatus, or paraphernalia owned by the government or by its political
subdivisions, agencies including government-owned or controlled corporations, or
by the Armed Forces of the Philippines for any election campaign or for any partisan
political activity x x x."
However, the jurisdiction of the COMELEC to disqualify candidates is limited to those
enumerated in section 68 of the Omnibus Election Code. All other election offenses
are beyond the ambit of COMELEC jurisdiction.97 They are criminal and not
administrative in nature. Pursuant to sections 265 and 268 of the Omnibus Election
Code, the power of the COMELEC is confined to the conduct of preliminary
investigation on the alleged election offenses for the purpose of prosecuting the
alleged offenders before the regular courts of justice, viz:
"Section 265. Prosecution.- The Commission shall, through its duly authorized legal
officers, have the exclusive power to conduct preliminary investigation of all
election offenses punishable under this Code, and to prosecute the same. The
Commission may avail of the assistance of other prosecuting arms of the
government: Provided, however, That in the event that the Commission fails to act
on any complaint within four months from his filing, the complainant may file the
complaint with the office of the fiscal or with the Ministry of Justice for proper
investigation and prosecution, if warranted.
xxxxxxxxx
Section 268. Jurisdiction.- The regional trial court shall have the exclusive original
jurisdiction to try and decide any criminal action or proceeding for violation of this
Code, except those relating to the offense of failure to register or failure to vote
which shall be under the jurisdictions of metropolitan or municipal trial courts. From
the decision of the courts, appeal will lie as in other criminal cases."
The COMELEC Second Division grievously erred when it decided the disqualification
case based on section 261 (a) and (o), and not on section 68 of the Omnibus
Election Code.
(d) Exclusion of the votes in favor of the petitioner and the proclamation of
respondent Locsin was done with undue haste.
The COMELEC Second Division ordered the exclusion of the votes cast in favor of
the petitioner, and the proclamation of the respondent Locsin, without affording the
petitioner the opportunity to challenge the same. In the morning of June 15, 2001,
the Provincial Board of Canvassers convened, and on the strength of the said
Resolution excluding the votes received by the petitioner, certified that respondent
Locsin received the highest number of votes. On this basis, respondent Locsin was
proclaimed.

Records reveal that the petitioner received notice of the Resolution of the COMELEC
Second Division only through his counsel via a facsimile message in the afternoon of
June 15, 200198 when everything was already fait accompli. Undoubtedly, he was
not able to contest the issuance of the Certificate of Canvass and the proclamation
of respondent Locsin. This is plain and simple denial of due process.
The essence of due process is the opportunity to be heard. When a party is deprived
of that basic fairness, any decision by any tribunal in prejudice of his rights is void.
Second. The votes cast in favor of the petitioner cannot be considered "stray" and
respondent cannot be validly proclaimed on that basis.
The Resolution of the COMELEC Second Division in SPA No. 01-208 contains two
dispositions: (1) it ruled that the petitioner was disqualified as a candidate for the
position of Congressman of the Fourth District of Leyte; and (2) it ordered the
immediate proclamation of the candidate who garnered the highest number of
votes, to the exclusion of the respondent [herein petitioner].
As previously stated, the disqualification of the petitioner is null and void for being
violative of due process and for want of substantial factual basis. Even assuming,
however, that the petitioner was validly disqualified, it is still improper for the
COMELEC Second Division to order the immediate exclusion of votes cast for the
petitioner as stray, and on this basis, proclaim the respondent as having garnered
the next highest number of votes.
(a) The order of disqualification is not yet final, hence, the votes cast in favor of the
petitioner cannot be considered "stray."
Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code require a
final judgment before the election for the votes of a disqualified candidate to be
considered "stray." Hence, when a candidate has not yet been disqualified by final
judgment during the election day and was voted for, the votes cast in his favor
cannot be declared stray. To do so would amount to disenfranchising the electorate
in whom sovereignty resides.99 For in voting for a candidate who has not been
disqualified by final judgment during the election day, the people voted for him
bona fide, without any intention to misapply their franchise, and in the honest belief
that the candidate was then qualified to be the person to whom they would entrust
the exercise of the powers of government.100
This principle applies with greater force in the case at bar considering that the
petitioner has not been declared by final judgment to be disqualified not only before
but even after the elections. The Resolution of the COMELEC Second Division
disqualifying the petitioner did not attain finality, and hence, could not be executed,
because of the timely filing of a Motion for Reconsideration. Section 13, Rule 18 of
the COMELEC Rules of Procedure on Finality of Decisions and Resolutions reads:
"Sec. 13. Finality of Decisions or Resolutions.- (a) In ordinary actions, special
proceedings, provisional remedies and special reliefs, a decision or resolution of the

Commission en banc shall become final and executory after thirty (30) days from its
promulgation.
(b) In Special Actions and Special Cases a decision or resolution of the Commission
en banc shall become final and executory after five (5) days in Special Actions and
Special Cases and after fifteen (15) days in all other proceedings, following their
promulgation.
(c) Unless a motion for reconsideration is seasonably filed, a decision or resolution
of a Division shall become final and executory after the lapse of five (5) days in
Special Actions and Special Cases and after fifteen (15) days in all other actions or
proceedings, following its promulgation." (emphasis supplied)
In this wise, COMELEC Resolution No. 4116,101 issued in relation to the finality of
resolutions or decisions in disqualification cases, provides:
"This pertains to the finality of decisions or resolutions of the Commission en banc
or division, particularly on Special Actions (Disqualification Cases).
Special Action cases refer to the following:
(a) Petition to deny due course to a certificate of candidacy;
(b) Petition to declare a candidate as a nuisance candidate;
(c) Petition to disqualify a candidate; and
(d) Petition to postpone or suspend an election.
Considering the foregoing and in order to guide field officials on the finality of
decisions or resolutions on special action cases (disqualification cases) the
Commission, RESOLVES, as it is hereby RESOLVED, as follows:
(1) the decision or resolution of the En Banc of the Commission on disqualification
cases shall become final and executory after five (5) days from its promulgation
unless restrained by the Supreme Court;
(2) the decision or resolution of a Division on disqualification cases shall become
final and executory after the lapse of five (5) days unless a motion for
reconsideration is seasonably filed;
(3) where the ground for disqualification case is by reason of non-residence,
citizenship, violation of election laws and other analogous cases and on the day of
the election the resolution has not become final and executory the BEI shall tally
and count the votes for such disqualified candidate;
(4) the decision or resolution of the En Banc on nuisance candidates, particularly
whether the nuisance candidate has the same name as the bona fide candidate
shall be immediately executory;

(5) the decision or resolution of a DIVISION on nuisance candidate, particularly

where the nuisance candidate has the same name as the bona fide candidate shall
be immediately executory after the lapse of five (5) days unless a motion for
reconsideration is seasonably filed. In which case, the votes cast shall not be
considered stray but shall be counted and tallied for the bona fide candidate.
All resolutions, orders and rules inconsistent herewith are hereby modified or
repealed."
Considering the timely filing of a Motion for Reconsideration, the COMELEC Second
Division gravely abused its discretion in ordering the immediate disqualification of
the petitioner and ordering the exclusion of the votes cast in his favor. Section 2,
Rule 19 of the COMELEC Rules of Procedure is very clear that a timely Motion for
Reconsideration shall suspend the execution or implementation of the resolution,
viz:
Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a
decision, resolution, order, or ruling of a Division shall be filed within five (5) days
from the promulgation thereof. Such motion, if not pro forma, suspends the
execution or implementation of the decision, resolution, order or ruling." (emphases
supplied)
(b) Respondent Locsin, as a mere second placer, cannot be proclaimed.
More brazen is the proclamation of respondent Locsin which violates the settled
doctrine that the candidate who obtains the second highest number of votes may
not be proclaimed winner in case the winning candidate is disqualified.102 In every
election, the people's choice is the paramount consideration and their expressed
will must at all times be given effect. When the majority speaks and elects into
office a candidate by giving him the highest number of votes cast in the election for
the office, no one can be declared elected in his place.103 In Domino v.
COMELEC,104 this Court ruled, viz:
"It would be extremely repugnant to the basic concept of the constitutionally
guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed winner and imposed as representative of a
constituency, the majority of which have positively declared through their ballots
that they do not choose him. To simplistically assume that the second placer would
have received that (sic) other votes would be to substitute our judgment for the
mind of the voters. He could not be considered the first among the qualified
candidates because in a field which excludes the qualified candidate, the conditions
would have substantially changed.
xxxxxxxxx
The effect of a decision declaring a person ineligible to hold an office is only that the
election fails entirely, that the wreath of victory cannot be transferred from the
disqualified winner to the repudiated loser because the law then as now only
authorizes a declaration in favor of the person who has obtained a plurality of votes,
and does not entitle the candidate receiving the next highest number of votes to be

declared elected. In such case, the electors have failed to make a choice and the
election is a nullity. To allow the defeated and repudiated candidate to take over the
elective position despite his rejection by the electorate is to disenfranchise the
electorate without any fault on their part and to undermine the importance and
meaning of democracy and the people's right to elect officials of their choice."105
Respondent Locsin proffers a distinction between a disqualification based on
personal circumstances such as age, residence or citizenship and disqualification
based on election offenses. She contends that the election of candidates later
disqualified based on election offenses like those enumerated in section 68 of the
Omnibus Election Code should be invalidated because they violate the very essence
of suffrage and as such, the votes cast in his favor should not be considered.106
This contention is without merit. In the recent case of Trinidad v. COMELEC,107 this
Court ruled that the effect of a judgment disqualifying a candidate, after winning the
election, based on personal circumstances or section 68 of the Omnibus Election
Code is the same: the second placer could not take the place of the disqualified
winner.
II
Whether the proclamation of respondent Locsin divested the COMELEC en banc of
jurisdiction to review its validity.
Respondent Locsin submits that the COMELEC en banc has no jurisdiction to annul
her proclamation. She maintains that the COMELEC en banc was been divested of
jurisdiction to review the validity of her proclamation because she has become a
member of the House of Representatives. Thus, she contends that the proper forum
to question her membership to the House of Representatives is the House of
Representative Electoral Tribunal (HRET).
We find no merit in these contentions.
First. The validity of the respondent's proclamation was a core issue in the Motion
for Reconsideration seasonably filed by the petitioner.
In his timely Motion for Reconsideration with the COMELEC en banc, petitioner
argued that the COMELEC Second Division erred thus:
"(1) in disqualifying petitioner on the basis solely of the dubious declaration of the
witnesses for respondent Locsin;
(2) in adopting in toto the allegations of the witnesses for respondent Locsin; and
(3) in promulgating the resolution in violation of its own rules of procedure and in
directing therein the immediate proclamation of the second highest 'vote getter.'"
(emphases supplied)
In support of his third assignment of error, petitioner argued that "the Second
Division's directive for the immediate proclamation of the second highest vote-

getter is premature considering that the Resolution has yet to become final and
executory."108 Clearly, the validity of respondent Locsin's proclamation was made a
central issue in the Motion for Reconsideration seasonably filed by the petitioner.
Without doubt, the COMELEC en banc has the jurisdiction to rule on the issue.
The fact that the Petition for Nullity of Proclamation was filed directly with the
COMELEC en banc is of no moment. Even without said Petition, the COMELEC en
banc could still rule on the nullity of respondent's proclamation because it was
properly raised in the Motion for Reconsideration.
Section 3, Article IX-C of the 1987 Constitution empowers the COMELEC en banc to
review, on motion for reconsideration, decisions or resolutions decided by a division,
viz:
"Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to expedite disposition of election cases,
including pre-proclamation controversies. All such election cases shall be heard and
decided in division, provided that motions for reconsideration of decision shall be
decided by the Commission en banc."
Pursuant to this Constitutional mandate, the COMELEC Rules of Procedure provides:
"Rule 19. Motions for Reconsideration.Section 1. Grounds for Motion for Reconsideration.- A motion for reconsideration
may be filed on the grounds that the evidence is insufficient to justify the decision,
order or ruling, or that the said decision, order or ruling is contrary to law.
Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a
decision, resolution, order, or ruling of a Division shall be filed within five (5) days
from the promulgation thereof. Such motion, if not pro forma, suspends the
execution or implementation of the decision, resolution, order or ruling."
Section 3. Form and Contents of Motion for Reconsideration.- The motion shall be
verified and shall point out specifically the findings or conclusions of the decision,
resolution, order or ruling which are not supported by the evidence or which are
contrary to law, making express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be contrary to such findings or
resolutions.
Section 4. Effect of Motion for Reconsideration on Period to Appeal.- A motion to
reconsider a decision, resolution, order or ruling when not pro forma, suspends the
running of the period to elevate the matter to the Supreme Court.
Section 5. How Motion for Reconsideration Disposed Of.- Upon the filing of a motion
to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court
concerned shall, within twenty-four (24) hours from the filing thereof, notify the
Presiding Commissioner. The latter shall within two (2) days thereafter certify the
case to the Commission en banc.

Section 6. Duty of the Clerk of Court of the Commission to set Motion for Hearing.The Clerk of Court concerned shall calendar the motion for reconsideration for the
resolution of the Commission en banc within ten (10) days from the certification
thereof." (emphases supplied)
Since the petitioner seasonably filed a Motion for Reconsideration of the Order of
the Second Division suspending his proclamation and disqualifying him, the
COMELEC en banc was not divested of its jurisdiction to review the validity of the
said Order of the Second Division. The said Order of the Second Division was yet
unenforceable as it has not attained finality; the timely filing of the motion for
reconsideration suspends its execution. It cannot, thus, be used as the basis for the
assumption in office of the respondent as the duly elected Representative of the 4th
legislative district of Leyte.
Second. It is the House of Representatives Electoral Tribunal (HRET) which has no
jurisdiction in the instant case.
Respondent contends that having been proclaimed and having taken oath as
representative of the 4th legislative district of Leyte, any question relative to her
election and eligibility should be brought before the HRET pursuant to section 17 of
Article VI of the 1987 Constitution.109
We reject respondent's contention.
(a) The issue on the validity of the Resolution of the COMELEC Second Division has
not yet been resolved by the COMELEC en banc.
To stress again, at the time of the proclamation of respondent Locsin, the validity of
the Resolution of the COMELEC Second Division was seasonably challenged by the
petitioner in his Motion for Reconsideration. The issue was still within the exclusive
jurisdiction of the COMELEC en banc to resolve. Hence, the HRET cannot assume
jurisdiction over the matter.
In Puzon vs. Cua,110 even the HRET ruled that the "doctrinal ruling that once a
proclamation has been made and a candidate-elect has assumed office, it is this
Tribunal that has jurisdiction over an election contest involving members of the
House of Representatives, could not have been immediately applicable due to the
issue regarding the validity of the very COMELEC pronouncements themselves."
This is because the HRET has no jurisdiction to review resolutions or decisions of the
COMELEC, whether issued by a division or en banc.
(b) The instant case does not involve the election and qualification of respondent
Locsin.
Respondent Locsin maintains that the proper recourse of the petitioner is to file a
petition for quo warranto with the HRET.
A petition for quo warranto may be filed only on the grounds of ineligibility and
disloyalty to the Republic of the Philippines.111 In the case at bar, neither the
eligibility of the respondent Locsin nor her loyalty to the Republic of the Philippines

is in question. There is no issue that she was qualified to run, and if she won, to
assume office.
A petition for quo warranto in the HRET is directed against one who has been duly
elected and proclaimed for having obtained the highest number of votes but whose
eligibility is in question at the time of such proclamation. It is evident that
respondent Locsin cannot be the subject of quo warranto proceeding in the HRET.
She lost the elections to the petitioner by a wide margin. Her proclamation was a
patent nullity. Her premature assumption to office as Representative of the 4th
legislative district of Leyte was void from the beginning. It is the height of absurdity
for the respondent, as a loser, to tell petitioner Codilla, Sr., the winner, to unseat her
via a quo warranto proceeding.
III
Whether it is the ministerial duty of the public respondents to
recognize petitioner Codilla, Sr. as the legally elected Representative
of the 4th legislative district of Leyte vice respondent Locsin.
Under Rule 65, section 3 of the 1997 Rules of Civil Procedure, any person may file a
verified petition for mandamus "when any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or office to which such other is
entitled, and there is no other plain, speedy and adequate remedy in the ordinary
course of law."112 For a petition for mandamus to prosper, it must be shown that
the subject of the petition for mandamus is a ministerial act or duty, and not purely
discretionary on the part of the board, officer or person, and that the petitioner has
a well-defined, clear and certain right to warrant the grant thereof.
The distinction between a ministerial and discretionary act is well delineated. A
purely ministerial act or duty is one which an officer or tribunal performs in a given
state of facts, in a prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of his own judgment upon the propriety
or impropriety of the act done. If the law imposes a duty upon a public officer and
gives him the right to decide how or when the duty shall be performed, such duty is
discretionary and not ministerial. The duty is ministerial only when the discharge of
the same requires neither the exercise of official discretion or judgment.113
In the case at bar, the administration of oath and the registration of the petitioner in
the Roll of Members of the House of Representatives representing the 4th legislative
district of Leyte is no longer a matter of discretion on the part of the public
respondents. The facts are settled and beyond dispute: petitioner garnered 71,350
votes as against respondent Locsin who only got 53, 447 votes in the May 14, 2001
elections. The COMELEC Second Division initially ordered the proclamation of
respondent Locsin; on Motion for Reconsideration the COMELEC en banc set aside
the order of its Second Division and ordered the proclamation of the petitioner. The

Decision of the COMELEC en banc has not been challenged before this Court by
respondent Locsin and said Decision has become final and executory.
In sum, the issue of who is the rightful Representative of the 4th legislative district
of Leyte has been finally settled by the COMELEC en banc, the constitutional body
with jurisdiction on the matter. The rule of law demands that its Decision be obeyed
by all officials of the land. There is no alternative to the rule of law except the reign
of chaos and confusion.
IN VIEW WHEREOF, the Petition for Mandamus is granted. Public Speaker of the
House of Representatives shall administer the oath of petitioner EUFROCINO M.
CODILLA, SR., as the duly-elected Representative of the 4th legislative district of
Leyte. Public respondent Secretary-General shall likewise register the name of the
petitioner in the Roll of Members of the House of Representatives after he has taken
his oath of office. This decision shall be immediately executory.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Vitug, Mendoza, Panganiban, Quisumbing, YnaresSantiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr.,
and Azcuna, JJ., concur.
Carpio, J., no part.

Martinez v. HRET
EN BANC
CELESTINO A. MARTINEZ III,
Petitioner,

- versus G.R. No. 189034

Present:
PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,

BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.
HOUSE OF REPRESENTATIVES
ELECTORAL TRIBUNAL AND
BENHUR L. SALIMBANGON,
Respondents.
Promulgated:
January 11, 2010
x-----------------------------------------------------------------------------------------x
DECISION
VILLARAMA, JR., J.:
This petition for certiorari under Rule 65 seeks to nullify the Decision[1] dated
May 28, 2009 of the House of Representatives Electoral Tribunal in HRET Case No.
07-035 dismissing the election protest and declaring private respondent as the duly
elected Representative of the Fourth Legislative District of Cebu, and the
Resolution[2] dated July 30, 2009 denying petitioner's motion for reconsideration
thereof.
The Facts
In the May 14, 2007 elections, petitioner Martinez and private respondent
Salimbangon were among the candidates for Representative in the Fourth
Legislative District of Cebu Province. On March 29, 2007, Edilito C. Martinez, a
resident of Barangay Tambongon, Daan-Bantayan, Cebu, filed his certificate of
candidacy for the same position.
On April 3, 2007, Martinez filed a petition to declare Edilito C. Martinez a
nuisance candidate.[3] However, the Commission on Elections Second Division
issued its Resolution declaring Edilito C. Martinez a nuisance candidate only on June
12, 2007 or almost one (1) month after the elections.
On July 9, 2007, Salimbangon was proclaimed winner in the congressional
elections for the Fourth Legislative District of Cebu on the basis of official results
showing that he garnered sixty-seven thousand two hundred
seventy-seven
(67,277) votes as against Martinez who garnered sixty-seven thousand one hundred
seventy-three (67,173) votes, or a difference of one hundred four (104) votes.
Martinez filed an Election Protest Ad Cautelam on July 18, 2007 and on July 26,
2007, the HRET granted his motion to convert the same into a Regular Protest of all

one thousand one hundred twenty-nine (1,129) precincts of the Fourth Legislative
District of Cebu.
The election protest is based on three hundred (300) ballots more or less with
only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative which the
Board of Election Inspectors (BEI) did not count for Martinez on the ground that
there was another congressional candidate (Edilito C. Martinez) who had the same
surname. Martinez further alleged that he lost several thousand votes as a result of
incorrect appreciation of ballots not counted in his favor while clearly marked
ballots, groups of ballots which appeared to have been prepared by one (1) person,
individual ballots which appeared to have been prepared by two (2) or more
persons, and fake and unofficial ballots were read and counted in favor of
Salimbangon. He also claimed that the votes reflected in the election returns were
unlawfully increased in favor of Salimbangon while votes in his favor were
unlawfully decreased.[4]
Salimbangon filed his Answer with Counter-Protest stating that the Minutes of
Voting (MOV) inside the ballot boxes in all the protested precincts contain no
recorded objections regarding straying of votes claimed by Martinez, and that it
was very seldom, if at all, that there were ballots with only "MARTINEZ" or "C.
MARTINEZ" written on the line for Representative. He counter-protested 954
precincts on grounds of coercion/intimidation and duress; massive vote-buying;
"lansadera"; misreading/miscounting/misappreciation of votes; and other electoral
anomalies and irregularities.
During the revision, ballots with only "MARTINEZ" or "C. MARTINEZ" written on
the line for Representative were not counted and temporarily classified as stray.
These comprise majority of the 9,831 stray ballots claimed by Martinez.[5]
HRET Ruling
In its Decision dated May 28, 2009, the HRET resolved each of the claims and
objections respectively raised by protestant and protestee applying the rules for
appreciation of ballots. The Tribunal recognized as most crucial the issue of
whether or not ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line
for Representative should be counted in favor of Martinez. Thus, the election protest
"will rise or fall on how the Tribunal [appreciates said] ballots."[6]
Ruling on the issue, the HRET sustained the BEI in considering the ballots as
stray in accordance with Sec. 211 (1) of the Omnibus Election Code
which
provides:
"Where only the first name of a candidate or only his surname is written, the vote
for such candidate is valid, if there is no other candidate with the same first name or
surname for the same office."[7] [EMPHASIS SUPPLIED.]
Since the name of Edilito C. Martinez was still included in the official list of
candidates on election day (May 14, 2007), the HRET held that five thousand four
hundred one (5,401) ballots with "MARTINEZ" or "C. MARTINEZ" only written on the
line for Representative were properly denied on the ground that there was no way of

determining the real intention of the voter. These ballots were included in the 7,544
ballots denied as votes for Martinez in 961 precincts.[8]
Commiserating with Martinez on the delayed resolution of SPA Case No. 07133 (PES), the HRET stated:
"We sympathize to (sic) the protestant that he is the victim of the inaction of the
Comelec in failing to decide the petition to disqualify Edilito C. Martinez as nuisance
candidate on or before the May 14, 2007 elections. After all, it appears that the
latter did not even lift a finger to oppose the petition for his declaration as nuisance
candidate and that per its decision rendered only twenty-nine (29) days after the
May 14, 2007 elections, Edilito C. Martinez was indeed a nuisance candidate.
"As it is, the delay committed by the Comelec in deciding the petition to disqualify
Edilito C. Martinez as nuisance candidate on or before May 14, 2007 election did not
only cause injustice to herein protestant but worst, had resulted to (sic) the
disenfranchisement of five thousand four hundred one (5,401) electorates whose
votes could have changed the number of votes garnered by the parties herein if not
changed altogether the outcome of the election itself."[9]
The final overall results of recount and appreciation of ballots, election
documents and other evidence in the entire 1,129 precincts as determined by the
HRET are as follows :[10]
Overall Fourth District of Cebu Votes
PROTESTANT
PROTESTEE
1] Votes per physical count* in 961 precincts where there was ballot appreciation
57,758
57,132
2] Votes in 12 precincts** without ballots found during revision (based on election
returns)
998
660
3] Votes per election returns in 156 precincts in which several spurious ballots were
placed after elections, counting and/or canvassing of votes

9,937

7,815
68,693
65,607
Less: Objected ballots rejected***
4,333
860
Add: Claimed ballots admitted***
2,287
2,348
Unclaimed ballots admitted***
8
11
Restored Ballots
2
Total Votes in the Contested Precincts After Appreciation of Evidence
66,655
67,108
PLURALITY OF PROTESTEE'S VOTES

453
* Taken from Revision Reports
** Namely Precinct Nos. 51A, Daan-Bantayan, 40A, 56A, 79A, all of Bantayan,
15C, 19D, 66B/67A, 88A, 105A, all of Bogo, 40A/41A, 70A/71A, all of
Medellin, 30A, Sta. Fe.
*** During appreciation of ballots in 961 precincts.
On the basis of the foregoing, the HRET dismissed the election protest,
affirmed the proclamation of Salimbangon and declared him to be the duly elected
Representative of the Fourth Legislative District of Cebu, having won by a plurality
margin of 453 votes.
Martinez moved for reconsideration of the Decision, but the HRET denied it by
Resolution dated July 30, 2009.[11]
The Petition
Petitioner alleges that the HRET gravely abused its discretion when it failed to
credit the "MARTINEZ" or "C. MARTINEZ" votes in his favor despite the finality of the

COMELEC resolution declaring Edilito C. Martinez a nuisance candidate. Petitioner

argues that the Decision disenfranchised 5,401 voters when it ruled that said votes
cannot be counted as votes for him since "there is no way of determining the real
intention of the voter", in utter disregard of the mandate of Art. VIII, Sec. 14 of the
Constitution. He maintains that there is no clear and good reason to justify the
rejection of those 5,401 ballots, and points out that at the time private respondent
was proclaimed by the Board of Canvassers, only 104 votes separated private
respondent from him (private respondent was credited with 67,277 votes as against
67,173 votes of petitioner, while nuisance candidate Edilito C. Martinez got a
measly 363 votes.)[12]
Petitioner further alleges that the HRET invalidated ballots for him without
stating the legal and factual bases therefor, and on grounds other than the
objections raised by private respondent. He contends that the HRET erred in
concluding that the ruling in Bautista v. Commission on Elections[13] cannot be
applied in view of circumstances which supposedly distinguish the present case
from Bautista. Finally, petitioner cites the dissenting opinion of the Honorable
Associate Justice Antonio Eduardo B. Nachura who disagreed with the majority
ruling and posited that the final declaration by COMELEC that Edilito C. Martinez
was a nuisance candidate and the cancellation of his certificate of candidacy should
be deemed effective as of the day of the election.[14]
In his Comment, private respondent assails the apparent desire of petitioner
for this Court to review the physical appreciation of ballots conducted by the HRET
when he assigned as issues the alleged erroneous invalidation by the HRET of
petitioner's ballots which were ruled as written by two (2) persons, and when he
even appreciated ballots that were declared by the HRET as marked ballots. Private
respondent details the mostly post-election anomalies and irregularities, particularly
in Bogo City, perpetrated by the petitioner as found by the HRET such as tampering
of election returns and statement of votes and vote padding/tampering.
As to the "MARTINEZ" and "C. MARTINEZ" ballots, private respondent asserts
that the HRET correctly refused to credit petitioner with these votes, stressing that
there were admittedly three (3) candidates for the position of Representative for the
Fourth Legislative District of Cebu as of May 14, 2007. Not a single voter in the
district knew of any nuisance congressional candidate on election day. Private
respondent argues that it would be illogical and most unfair to count the said ballots
in favor of petitioner as it is erroneous to base the voter's intent on the supervening
circumstance which was inexistent on the date the ballot was accomplished and
cast.
The HRET likewise did not err in holding that the Bautista ruling is
inapplicable, there being no announced declaration yet of one (1) of the candidates
as nuisance candidate when the voters cast their ballots on election day.
The Issues
What then is the legal effect of declaring a nuisance candidate as such in a
final judgment after the elections? Should ballots containing only the similar
surname of two (2) candidates be considered as stray votes or counted in favor of
the bona fide candidate?
Our Ruling

The Court finds the petition meritorious.

Section 69 of the Omnibus Election Code provides:
"Section 69. Nuisance candidates. -- The Commission may motu proprio or upon a
verified petition of an interested party, refuse to give due course to or cancel a
certificate of candidacy if it is shown that said certificate has been filed to put the
election process in mockery or disrepute or to cause confusion among the voters by
the similarity of the names of the registered candidates or by other circumstances
or acts which clearly demonstrate that the candidate has no bona fide intention to
run for the office for which the certificate of candidacy has been filed and thus
prevent a faithful determination of the true will of the electorate."
Republic Act No. 6646, otherwise known as The Electoral Reforms Law of
1987" provides in Section 5 thereof:
"SEC. 5. Procedure in Cases of Nuisance Candidates. -(a) A verified petition to declare a duly registered candidate as a nuisance
candidate under Section 69 of Batas Pambansa Blg. 881 shall be filed personally or
through duly authorized representative with the Commission by any registered
candidate for the same office within five (5) days from the last day for the filing of
certificates of candidacy. Filing by mail shall not be allowed.
"(b) Within three (3) days from the filing of the petition, the Commission shall issue
summons to the respondent candidate together with a copy of the petition and its
enclosures, if any.
"(c) The respondent shall be given three (3) days from receipt of the summons
within which to file his verified answer (not a motion to dismiss) to the petition,
serving copy thereof upon the petitioner. Grounds for a motion to dismiss may be
raised as affirmative defenses.
"(d) The Commission may designate any of its officials who are lawyers to hear the
case and receive evidence. The proceeding shall be summary in nature. In lieu of
oral testimonies, the parties may be required to submit position papers together
with affidavits or counter-affidavits and other documentary evidence. The hearing
officer shall immediately submit to the Commission his findings, reports, and
recommendations within five (5) days from the completion of such submission of
evidence. The Commission shall render its decision within five (5) days from receipt
thereof.
"(e) The decision, order, or ruling of the Commission shall, after five (5) days from
receipt of a copy thereof by the parties, be final and executory unless stayed by the
Supreme Court.
"(f) The Commission shall within twenty-four hours, through the fastest available
means, disseminate its decision or the decision of the Supreme Court to the city or

municipal election registrars, boards of election inspectors and the general public in
the political subdivision concerned." [EMPHASIS SUPPLIED.]
By their very nature, proceedings in cases of nuisance candidates require
prompt disposition. The declaration of a duly registered candidate as nuisance
candidate results in the cancellation of his certificate of candidacy. The law
mandates the Commission and the courts to give priority to cases of disqualification
to the end that a final decision shall be rendered not later than seven days before
the election in which the disqualification is sought.[15] In many instances, however,
proceedings against nuisance candidates remained pending and undecided until
election day and even after canvassing of votes had been completed.
Here, petitioner sought to declare Edilito C. Martinez as a nuisance candidate
immediately after the latter filed his certificate of candidacy as an independent
candidate and long before the May 14, 2007 elections. Petitioner averred that
Edilito C. Martinez who was a driver of a motorcycle for hire, locally known as
"habal-habal", did not own any real property in his municipality, had not filed his
income tax return for the past years, and being an independent candidate did not
have any political machinery to propel his candidacy nor did he have political
supporters to help him in his campaign. Petitioner claimed that Edilito C. Martinez
after the filing of his certificate of candidacy, was never heard of again and neither
did he start an electoral campaign. Given such lack of bona fide intention of Edilito
C. Martinez to run for the office for which he filed a certificate of candidacy,
petitioner contended that his candidacy would just cause confusion among the
voters by the similarity of their surnames, considering that petitioner was
undeniably the frontrunner in the congressional district in the Fourth Legislative
District of Cebu as his mother, Rep. Clavel A. Martinez, was the incumbent
Representative of the district.[16]
The COMELEC's Second Division granted the petition and declared Edilito C.
Martinez as a nuisance candidate. It noted that the failure of said candidate to
answer and deny the accusations against him clearly disclosed the fact that he had
no bona fide intention to run for public office. Thus, it concluded that his only
purpose for filing his certificate of candidacy was to put the election process into
mockery and cause confusion among the voters by the similarity of his surname
with that of petitioner.[17]
No motion for reconsideration was filed by Edilito C. Martinez and neither did
he appeal before this Court the resolution declaring him a nuisance candidate. Said
decision had thus become final and executory after five (5) days from its
promulgation in accordance with the COMELEC Rules of Procedure.[18] But having
come too late, the decision was an empty victory for petitioner who lost to private
respondent by a slim margin of 104 votes. In his election protest, petitioner
sought to have ballots with only "MARTINEZ" or "C. MARTINEZ" written on the
line for Representative counted in his favor. The HRET, however, considered such
ballots numbering 5,401 as stray and rejected petitioner's argument that the ruling
in Bautista v. Comelec (supra) is applicable in this case.

Bautista involves a mayoralty candidate (Cipriano "Efren" Bautista) during the

May 11, 1998 elections who filed a petition to declare as nuisance candidate Edwin
"Efren" Bautista, who filed a certificate of candidacy for the same position at the
last minute. The COMELEC granted the petition, declared Edwin Bautista a nuisance
candidate and ordered the cancellation of his certificate of candidacy.
Consequently, Edwin Bautista's name was not included in the official list of
candidates for the position of mayor of Navotas City and copies of the list were
distributed to the boards of election inspectors (BEI). On May 8, 1998, Edwin filed a
motion for reconsideration and as a result, the Election Officer of Navotas issued a
directive to the BEI to include the name of Edwin Bautista in the certified list of
candidates, only to recall said order in the afternoon. In view of the conflicting
directives, counsel for petitioner requested the COMELEC that instructions be given
to the BEI to tally separately the votes for "EFREN BAUTISTA", "EFREN", "E.
BAUTISTA" and "BAUTISTA."
On May 13, 1998, the COMELEC denied Edwin Bautista's motion for
reconsideration. When the canvass of the election returns was commenced, the
Municipal Board of Canvassers refused to canvass as part of the valid votes of
petitioner the separate tallies of ballots on which were written "EFREN BAUTISTA,"
"EFREN," "E. BAUTISTA" and "BAUTISTA." Petitioner then filed with the COMELEC a
petition to declare illegal the proceedings of the Municipal Board of Canvassers.
Meanwhile Edwin Bautista filed a petition for certiorari with this Court assailing the
actions of COMELEC declaring him a nuisance candidate and ordering the
cancellation of his certificate of candidacy. The Court dismissed said petition finding
no grave abuse of discretion committed by the COMELEC and subsequently also
denied with finality the motion for reconsideration filed by Edwin Bautista.
As to the petition to declare as illegal the proceedings of the Municipal Board
of Canvassers for its refusal to include the stray votes in the separate tally sheet,
the COMELEC dismissed the same, citing Sec. 211 (4)[19] of the Omnibus Election
Code. Petitioner Bautista elevated the case to the Supreme Court which ruled in his
favor, thus:
"At the outset and initially setting aside all the ramifications of the substantive
issue of the instant petition, the primordial concern of the Court is to verify whether
or not on the day of the election, there was only one 'Efren Bautista' as a validly
registered candidate as far as the electorate was concerned.
"x x x
"Edwin Bautista moved for reconsideration on May 8, 1998. Unfortunately, said
motion was not resolved as of election day. Technically, the April 30, 1998 decision
was not yet final as of May 11, 1998, and this technicality created serious problems
on election day.
x x x
"An analysis of the foregoing incidents shows that the separate tallies were made to
remedy any prejudice that may be caused by the inclusion of a potential nuisance
candidate in the Navotas mayoralty race. Such inclusion was brought about by

technicality, specifically Edwin Bautista's filing of a motion for reconsideration,

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

"It seems obvious to us that the votes separately tallied are not really stray votes.
Then COMELEC Chairman Bernardo P. Pardo himself, now a respected member of
the Court, in his May 14, 1998 Memorandum, allowed the segregation of the votes
for "Bautista," "Efren," and "Efren Bautista," and "E. Bautista" into a separate
improvised tally, for the purpose of later counting the votes. In fine, the COMELEC
itself validated the separate tallies since they were meant to be used in the
canvassing later on to the actual number of votes cast. These separate tallies
actually made the will of the electorate determinable despite the apparent
confusion caused by a potential nuisance candidate. What remained unsaid by the
COMELEC Chairman was the fact that as early as May 13, 1998, the COMELEC had
already spoken and stated its final position on the issue of whether or not Edwin
Bautista is a nuisance candidate. It had already denied Edwin's motion for
reconsideration in its May 13, 1998 Order x x x
"x x x x
"This important detail only shows that as of May 14, 1998, when Chairman Pardo
issued the aforestated Memorandum, Edwin Bautista had already been finally
declared as a nuisance candidate by the COMELEC. And when Edwin Bautista
elevated the matter to this Court, we upheld such declaration. How then can we
consider valid the votes for Edwin Bautista whom we finally ruled as disqualified
from the 1998 Navotas mayoralty race? That is like saying one thing and doing
another. These are two incompatible acts the contrariety and inconsistency of
which are all too obvious."[20] [EMPHASIS SUPPLIED.]

Petitioner now invokes this Court's pronouncement in Bautista to the effect

that votes indicating only the surname of two (2) candidates should not be
considered as stray but counted in favor of the bona fide candidate after the other
candidate with a similar surname was declared a nuisance candidate. In refusing to
apply the ruling in Bautista, the HRET said that the factual circumstances in said
case are different, thus:
"Protestant strongly asserts that the 'MARTINEZ' or 'C. MARTINEZ' only votes be
counted in his favor invoking the ruling in the case of Bautista vs. Comelec, G.R. No.
133840, November 13, 1998 (298 SCRA 480) where the Supreme Court held that
the final and conclusive ruling on the declaration of a nuisance candidate retroacts
on the day of the election.
"We disagree.
"While the Bautista vs. Comelec case also involves a candidate declared as
nuisance by the Comelec, the case herein is not on all fours with it. x x x
"x x x

"It is clear from the foregoing facts of the Bautista case that the nuisance candidate,
Edwin Bautista, was declared as such on April 30, 1998, eleven (11) days before the
May 11, 1998 elections. Although the decision was not yet final on Election Day
because of a Motion for Reconsideration that Edwin Bautista had filed on May 8,
1998, nevertheless, his name was not included in the list of candidates for the
position of Mayor for Navotas. This is not the situation in the present case for Edilito
C. Martinez was not yet declared disqualified during the May 14, 2007 elections.
There were, therefore, two (2) congressional candidates on the day of the election
with "MARTINEZ" as surname, Celestino A. Martinez and Edilito C. Martinez.
"More importantly, in the Bautista case, while the Comelec's decision declaring
Edwin Bautista a nuisance candidate had not yet attained finality on election day,
May 11, 1998, the voters of Navotas were informed of such disqualification by
virtue of newspaper releases and other forms of notification. The voters in said
case had constructive as well as actual knowledge of the action of the Comelec
delisting Edwin Bautista as a candidate for mayor. This is not so in the present case
for Edilito C. Martinez was not yet disqualified as nuisance candidate during the May
14, 2007 elections.
There were no newspaper releases and other forms of
notification to the voters of the Fourth District of Cebu on or before May 14, 2007
elections that Edilito C. Martinez was disqualified as a nuisance candidate."[21]
[EMPHASIS SUPPLIED.]

It is clear that Bautista is anchored on the factual determination that the

COMELEC resolution declaring Edwin Bautista a nuisance candidate was already
final since his motion for reconsideration was already denied by the Commission
when canvassing of the votes started. Hence, the segregated and separately tallied
votes containing only the similar first names/nicknames and surnames of the two
(2) candidates were considered as not really stray votes. We held that the separate
tallies validated by the
COMELEC actually made the will of the electorate
determinable despite the apparent confusion caused by a nuisance candidate.
In the case at bar, there was no segregation or separate tally of votes for
petitioner. Unlike in Bautista, there was simply no opportunity for petitioner to
request the segregation and separate tally of expected ballots containing only the
surname "MARTINEZ" as the resolution granting his petition was promulgated only
a month later. The HRET, while not closing its eyes to the prejudice caused to
petitioner by COMELEC's inaction and delay, as well as the disenfranchisement of
the 5,401 voters, refused to credit him with those votes on the ground that there
was no way of determining the real intention of the voter.
We disagree.
The purpose of an election protest is to ascertain whether the candidate
proclaimed by the board of canvassers is the lawful choice of the people. What is
sought is the correction of the canvass of votes, which was the basis of
proclamation of the winning candidate. Election contests, therefore, involve the
adjudication not only of private and pecuniary interests of rival candidates, but also

of paramount public interest considering the need to dispel uncertainty over the
real choice of the electorate.[22]
In controversies pertaining to nuisance candidates as in the case at bar, the
law contemplates the likelihood of confusion which the similarity of surnames of two
(2) candidates may generate. A nuisance candidate is thus defined as one who,
based on the attendant circumstances, has no bona fide intention to run for the
office for which the certificate of candidacy has been filed, his sole purpose being
the reduction of the votes of a strong candidate, upon the expectation that ballots
with only the surname of such candidate will be considered stray and not counted
for either of them.
In elections for national positions such as President, Vice-President and
Senator, the sheer logistical challenge posed by nuisance candidates gives
compelling reason for the Commission to exercise its authority to eliminate
nuisance candidates who obviously have no financial capacity or serious intention to
mount a nationwide campaign. Thus we explained in Pamatong v. Commission on
Elections[23]:
"The rationale behind the prohibition against nuisance candidates and the
disqualification of candidates who have not evinced a bona fide intention to run for
office is easy to divine. The State has a compelling interest to ensure that its
electoral exercises are rational, objective, and orderly. Towards this end, the State
takes into account the practical considerations in conducting elections. Inevitably,
the greater the number of candidates, the greater the opportunities for logistical
confusion, not to mention the increased allocation of time and resources in
preparation for the election. These practical difficulties should, of course, never
exempt the State from the conduct of a mandated electoral exercise. At the same
time, remedial actions should be available to alleviate these logistical hardships,
whenever necessary and proper. Ultimately, a disorderly election is not merely a
textbook example of inefficiency, but a rot that erodes faith in our democratic
institutions. As the United States Supreme Court held:
[T]here is surely an important state interest in requiring some preliminary showing
of a significant modicum of support before printing the name of a political
organization and its candidates on the ballot -- the interest, if no other, in avoiding
confusion, deception and even frustration of the democratic [process].
"x x x x
"There is a need to limit the number of candidates especially in the case of
candidates for national positions because the election process becomes a mockery
even if those who cannot clearly wage a national campaign are allowed to run.
Their names would have to be printed in the Certified List of Candidates, Voters
Information Sheet and the Official Ballots. These would entail additional costs to the
government. x x x
"The preparation of ballots is but one aspect that would be affected by allowance of
"nuisance candidates" to run in the elections. Our election laws provide various
entitlements for candidates for public office, such as watchers in every polling

place, watchers in the board of canvassers, or even the receipt of electoral

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

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

(1) the decision or resolution of the En Banc of the Commission on disqualification

cases shall become final and executory after five (5) days from its promulgation
unless restrained by the Supreme Court;
x

x x

(4) the decision or resolution of the En Banc on nuisance candidates, particularly

whether the nuisance candidate has the same name as the bona fide candidate
shall be immediately executory;
(5) the decision or resolution of a DIVISION on nuisance candidate, particularly
where the nuisance candidate has the same name as the bona fide candidate shall
be immediately executory after the lapse of five (5) days unless a motion for
reconsideration is seasonably filed. In which case, the votes cast shall not be
considered stray but shall be counted and tallied for the bona fide candidate.
All resolutions, orders and rules inconsistent herewith are hereby modified or
repealed. [EMPHASIS SUPPLIED.]
We held in several cases that the judgments of the Electoral Tribunals are
beyond judicial interference, unless rendered without or in excess of their
jurisdiction or with grave abuse of discretion.[27] The power of judicial review may
be invoked in exceptional cases upon a clear showing of such arbitrary and
improvident use by the Tribunal of its power as constitutes a clear denial of due
process of law, or upon a demonstration of a very clear unmitigated error,
manifestly constituting such grave abuse of direction that there has to be a remedy
for such abuse.[28] Grave abuse of discretion implies capricious and whimsical
exercise of judgment amounting to lack of jurisdiction, or arbitrary and despotic
exercise of power because of passion or personal hostility.
The grave abuse of
discretion must be so patent and gross as to amount to an evasion or refusal to
perform a duty enjoined by law.[29]
Respondent HRET gravely abused its
discretion in affirming the proclamation of respondent Salimbangon as the duly
elected Representative of the Fourth Legislative District of Cebu despite the final
outcome of revision showing 5,401 ballots with only "MARTINEZ" or "C. "MARTINEZ"
written on the line for Representative, votes which should have been properly
counted in favor of petitioner and not nullified as stray votes, after considering all
relevant circumstances clearly establishing that such votes could not have been
intended for "Edilito C. Martinez" who was declared a nuisance candidate in a final
judgment.
Ensconced in our jurisprudence is the well-founded rule that laws and
statutes governing election contests especially appreciation of ballots must be
liberally construed to the end that the will of the electorate in the choice of public
officials may not be defeated by technical infirmities. An election protest is imbued
with public interest so much so that the need to dispel uncertainties which becloud
the real choice of the people is imperative. [30] The prohibition against nuisance
candidates is aimed precisely at preventing uncertainty and
confusion in
ascertaining the true will of the electorate. Thus, in certain situations as in the case
at bar, final judgments declaring a nuisance candidate should effectively cancel

the certificate of candidacy filed by such candidate as of election day. Otherwise,

potential nuisance candidates will continue to put the electoral process into
mockery by filing certificates of candidacy at the last minute and delaying resolution
of any petition to declare them as nuisance candidates until elections are held and
the votes counted and canvassed.
We therefore hold that ballots indicating only the similar surname of two (2)
candidates for the same position may, in appropriate cases, be counted in favor of
the bona fide candidate and not considered stray, even if the other candidate was
declared a nuisance candidate by final judgment after the elections. Accordingly,
the 5,401 votes for "MARTINEZ" or "C. MARTINEZ" should be credited to petitioner
giving him a total of 72,056 votes as against 67,108 total votes of private
respondent. Petitioner thus garnered more votes than private respondent with a
winning margin of 4,948 votes.
WHEREFORE, the petition is GRANTED. The Decision dated May 28, 2009 and
Resolution dated July 30, 2009 of the House of Representatives Electoral Tribunal in
HRET Case No. 07-035 are ANNULLED and SET ASIDE. Petitioner Celestino A.
Martinez III is hereby declared the duly elected Representative of the Fourth
Legislative District of Cebu in the May 14, 2007 elections. This decision is
immediately executory.
Let a copy of the decision be served personally upon the parties and their
counsels.
No pronouncement as to costs.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice