THIRD DIVISION

KAZUHIRO HASEGAWA and NIPPON

ENGINEERING CONSULTANTS CO.,
LTD.,
Petitioners,



- versus -




MINORU KITAMURA,
Respondent.

G.R. No.
149177

Present:

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

Promulgated:

November 23, 2007

x------------------------------------------------------------------------------------x


DECISION

NACHURA, J .:





Before the Court is a petition for review on certiorari under Rule 45 of the
Rules of Court assailing the April 18, 2001 Decision1[1] of the Court of Appeals
(CA) in CA-G.R. SP No. 60827, and the July 25, 2001 Resolution2[2] denying the
motion for reconsideration thereof.

On March 30, 1999, petitioner Nippon Engineering Consultants Co., Ltd.
(Nippon), a Japanese consultancy firm providing technical and management
support in the infrastructure projects of foreign governments,3[3] entered into an
Independent Contractor Agreement (ICA) with respondent Minoru Kitamura, a
Japanese national permanently residing in the Philippines.4[4] The agreement









provides that respondent was to extend professional services to Nippon for a year
starting on April 1, 1999.5[5] Nippon then assigned respondent to work as the
project manager of the Southern Tagalog Access Road (STAR) Project in the
Philippines, following the company's consultancy contract with the Philippine
Government.6[6]

When the STAR Project was near completion, the Department of Public
Works and Highways (DPWH) engaged the consultancy services of Nippon, on
January 28, 2000, this time for the detailed engineering and construction
supervision of the Bongabon-Baler Road Improvement (BBRI) Project.7[7]
Respondent was named as the project manager in the contract's Appendix 3.1.8[8]

On February 28, 2000, petitioner Kazuhiro Hasegawa, Nippon's general
manager for its International Division, informed respondent that the company had
no more intention of automatically renewing his ICA. His services would be









engaged by the company only up to the substantial completion of the STAR
Project on March 31, 2000, just in time for the ICA's expiry.9[9]

Threatened with impending unemployment, respondent, through his lawyer,
requested a negotiation conference and demanded that he be assigned to the BBRI
project. Nippon insisted that respondents contract was for a fixed term that had
already expired, and refused to negotiate for the renewal of the ICA.10[10]

As he was not able to generate a positive response from the petitioners,
respondent consequently initiated on June 1, 2000 Civil Case No. 00-0264 for
specific performance and damages with the Regional Trial Court of Lipa
City.11[11]

For their part, petitioners, contending that the ICA had been perfected in
Japan and executed by and between Japanese nationals, moved to dismiss the
complaint for lack of jurisdiction. They asserted that the claim for improper pre-







termination of respondent's ICA could only be heard and ventilated in the proper
courts of Japan following the principles of lex loci celebrationis and lex
contractus.12[12]

In the meantime, on June 20, 2000, the DPWH approved Nippon's request
for the replacement of Kitamura by a certain Y. Kotake as project manager of the
BBRI Project.13[13]

On June 29, 2000, the RTC, invoking our ruling in Insular Government v.
Frank14[14] that matters connected with the performance of contracts are
regulated by the law prevailing at the place of performance,15[15] denied the
motion to dismiss.16[16] The trial court subsequently denied petitioners' motion











for reconsideration,17[17] prompting them to file with the appellate court, on
August 14, 2000, their first Petition for Certiorari under Rule 65 [docketed as CA-
G.R. SP No. 60205].18[18] On August 23, 2000, the CA resolved to dismiss the
petition on procedural groundsfor lack of statement of material dates and for
insufficient verification and certification against forum shopping.19[19] An Entry
of Judgment was later issued by the appellate court on September 20, 2000.20[20]

Aggrieved by this development, petitioners filed with the CA, on September
19, 2000, still within the reglementary period, a second Petition for Certiorari
under Rule 65 already stating therein the material dates and attaching thereto the
proper verification and certification. This second petition, which substantially
raised the same issues as those in the first, was docketed as CA-G.R. SP No.
60827.21[21]












Ruling on the merits of the second petition, the appellate court rendered the
assailed April 18, 2001 Decision22[22] finding no grave abuse of discretion in the
trial court's denial of the motion to dismiss. The CA ruled, among others, that the
principle of lex loci celebrationis was not applicable to the case, because nowhere
in the pleadings was the validity of the written agreement put in issue. The CA thus
declared that the trial court was correct in applying instead the principle of lex loci
solutionis.23[23]

Petitioners' motion for reconsideration was subsequently denied by the CA
in the assailed July 25, 2001 Resolution.24[24]

Remaining steadfast in their stance despite the series of denials, petitioners
instituted the instant Petition for Review on Certiorari25[25] imputing the
following errors to the appellate court:










A. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
FINDING THAT THE TRIAL COURT VALIDLY EXERCISED
JURISDICTION OVER THE INSTANT CONTROVERSY, DESPITE THE
FACT THAT THE CONTRACT SUBJECT MATTER OF THE
PROCEEDINGS A QUO WAS ENTERED INTO BY AND BETWEEN TWO
JAPANESE NATIONALS, WRITTEN WHOLLY IN THE JAPANESE
LANGUAGE AND EXECUTED IN TOKYO, JAPAN.

B. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
OVERLOOKING THE NEED TO REVIEW OUR ADHERENCE TO THE
PRINCIPLE OF LEX LOCI SOLUTIONIS IN THE LIGHT OF RECENT
DEVELOPMENT[S] IN PRIVATE INTERNATIONAL LAWS.26[26]


The pivotal question that this Court is called upon to resolve is whether the
subject matter jurisdiction of Philippine courts in civil cases for specific
performance and damages involving contracts executed outside the country by
foreign nationals may be assailed on the principles of lex loci celebrationis, lex
contractus, the state of the most significant relationship rule, or forum non
conveniens.

However, before ruling on this issue, we must first dispose of the procedural
matters raised by the respondent.

Kitamura contends that the finality of the appellate court's decision in CA-
G.R. SP No. 60205 has already barred the filing of the second petition docketed as



CA-G.R. SP No. 60827 (fundamentally raising the same issues as those in the first
one) and the instant petition for review thereof.

We do not agree. When the CA dismissed CA-G.R. SP No. 60205 on
account of the petition's defective certification of non-forum shopping, it was a
dismissal without prejudice.27[27] The same holds true in the CA's dismissal of
the said case due to defects in the formal requirement of verification28[28] and in
the other requirement in Rule 46 of the Rules of Court on the statement of the
material dates.29[29] The dismissal being without prejudice, petitioners can re-file
the petition, or file a second petition attaching thereto the appropriate verification
and certificationas they, in fact didand stating therein the material dates, within
the prescribed period30[30] in Section 4, Rule 65 of the said Rules.31[31]












The dismissal of a case without prejudice signifies the absence of a decision
on the merits and leaves the parties free to litigate the matter in a subsequent action
as though the dismissed action had not been commenced. In other words, the
termination of a case not on the merits does not bar another action involving the
same parties, on the same subject matter and theory.32[32]

Necessarily, because the said dismissal is without prejudice and has no res judicata
effect, and even if petitioners still indicated in the verification and certification of the second
certiorari petition that the first had already been dismissed on procedural grounds,33[33]
petitioners are no longer required by the Rules to indicate in their certification of non-forum
shopping in the instant petition for review of the second certiorari petition, the status of the
aforesaid first petition before the CA. In any case, an omission in the certificate of non-forum
shopping about any event that will not constitute res judicata and litis pendentia, as in the
present case, is not a fatal defect. It will not warrant the dismissal and nullification of the entire
proceedings, considering that the evils sought to be prevented by the said certificate are no
longer present.34[34]

The Court also finds no merit in respondent's contention that petitioner Hasegawa is only
authorized to verify and certify, on behalf of Nippon, the certiorari petition filed with the CA







and not the instant petition. True, the Authorization35[35] dated September 4, 2000, which is
attached to the second certiorari petition and which is also attached to the instant petition for
review, is limited in scopeits wordings indicate that Hasegawa is given the authority to sign
for and act on behalf of the company only in the petition filed with the appellate court, and that
authority cannot extend to the instant petition for review.36[36] In a plethora of cases, however,
this Court has liberally applied the Rules or even suspended its application whenever a
satisfactory explanation and a subsequent fulfillment of the requirements have been
made.37[37] Given that petitioners herein sufficiently explained their misgivings on this point
and appended to their Reply38[38] an updated Authorization39[39] for Hasegawa to act on
behalf of the company in the instant petition, the Court finds the same as sufficient compliance
with the Rules.

However, the Court cannot extend the same liberal treatment to the defect in the
verification and certification. As respondent pointed out, and to which we agree, Hasegawa is
truly not authorized to act on behalf of Nippon in this case. The aforesaid September 4, 2000
Authorization and even the subsequent August 17, 2001 Authorization were issued only by











Nippon's president and chief executive officer, not by the company's board of directors. In not a
few cases, we have ruled that corporate powers are exercised by the board of directors; thus, no
person, not even its officers, can bind the corporation, in the absence of authority from the
board.40[40] Considering that Hasegawa verified and certified the petition only on his behalf
and not on behalf of the other petitioner, the petition has to be denied pursuant to Loquias v.
Office of the Ombudsman.41[41] Substantial compliance will not suffice in a matter that
demands strict observance of the Rules.42[42] While technical rules of procedure are designed
not to frustrate the ends of justice, nonetheless, they are intended to effect the proper and orderly
disposition of cases and effectively prevent the clogging of court dockets.43[43]

Further, the Court has observed that petitioners incorrectly filed a Rule 65 petition to
question the trial court's denial of their motion to dismiss. It is a well-established rule that an
order denying a motion to dismiss is interlocutory, and cannot be the subject of the extraordinary
petition for certiorari or mandamus. The appropriate recourse is to file an answer and to
interpose as defenses the objections raised in the motion, to proceed to trial, and, in case of an
adverse decision, to elevate the entire case by appeal in due course.44[44] While there are
recognized exceptions to this rule,45[45] petitioners' case does not fall among them.











This brings us to the discussion of the substantive issue of the case.

Asserting that the RTC of Lipa City is an inconvenient forum, petitioners question its
jurisdiction to hear and resolve the civil case for specific performance and damages filed by the
respondent. The ICA subject of the litigation was entered into and perfected in Tokyo, Japan, by
Japanese nationals, and written wholly in the Japanese language. Thus, petitioners posit that local
courts have no substantial relationship to the parties46[46] following the [state of the] most
significant relationship rule in Private International Law.47[47]

The Court notes that petitioners adopted an additional but different theory when they
elevated the case to the appellate court. In the Motion to Dismiss48[48] filed with the trial
court, petitioners never contended that the RTC is an inconvenient forum. They merely argued
that the applicable law which will determine the validity or invalidity of respondent's claim is










that of Japan, following the principles of lex loci celebrationis and lex contractus.49[49] While
not abandoning this stance in their petition before the appellate court, petitioners on certiorari
significantly invoked the defense of forum non conveniens.50[50] On petition for review before
this Court, petitioners dropped their other arguments, maintained the forum non conveniens
defense, and introduced their new argument that the applicable principle is the [state of the] most
significant relationship rule.51[51]

Be that as it may, this Court is not inclined to deny this petition merely on the basis of the
change in theory, as explained in Philippine Ports Authority v. City of Iloilo.52[52] We only
pointed out petitioners' inconstancy in their arguments to emphasize their incorrect assertion of
conflict of laws principles.

To elucidate, in the judicial resolution of conflicts problems, three consecutive phases are
involved: jurisdiction, choice of law, and recognition and enforcement of judgments.
Corresponding to these phases are the following questions: (1) Where can or should litigation be









initiated? (2) Which law will the court apply? and (3) Where can the resulting judgment be
enforced?53[53]

Analytically, jurisdiction and choice of law are two distinct concepts.54[54] Jurisdiction
considers whether it is fair to cause a defendant to travel to this state; choice of law asks the
further question whether the application of a substantive law which will determine the merits of
the case is fair to both parties. The power to exercise jurisdiction does not automatically give a
state constitutional authority to apply forum law. While jurisdiction and the choice of the lex fori
will often coincide, the minimum contacts for one do not always provide the necessary
significant contacts for the other.55[55] The question of whether the law of a state can be
applied to a transaction is different from the question of whether the courts of that state have
jurisdiction to enter a judgment.56[56]

In this case, only the first phase is at issuejurisdiction. Jurisdiction, however, has
various aspects. For a court to validly exercise its power to adjudicate a controversy, it must have
jurisdiction over the plaintiff or the petitioner, over the defendant or the respondent, over the
subject matter, over the issues of the case and, in cases involving property, over the res or the









thing which is the subject of the litigation.57[57] In assailing the trial court's jurisdiction herein,
petitioners are actually referring to subject matter jurisdiction.

Jurisdiction over the subject matter in a judicial proceeding is conferred by the sovereign
authority which establishes and organizes the court. It is given only by law and in the manner
prescribed by law.58[58] It is further determined by the allegations of the complaint irrespective
of whether the plaintiff is entitled to all or some of the claims asserted therein.59[59] To
succeed in its motion for the dismissal of an action for lack of jurisdiction over the subject matter
of the claim,60[60] the movant must show that the court or tribunal cannot act on the matter
submitted to it because no law grants it the power to adjudicate the claims.61[61]

In the instant case, petitioners, in their motion to dismiss, do not claim that the trial court
is not properly vested by law with jurisdiction to hear the subject controversy for, indeed, Civil
Case No. 00-0264 for specific performance and damages is one not capable of pecuniary











estimation and is properly cognizable by the RTC of Lipa City.62[62] What they rather raise as
grounds to question subject matter jurisdiction are the principles of lex loci celebrationis and lex
contractus, and the state of the most significant relationship rule.

The Court finds the invocation of these grounds unsound.

Lex loci celebrationis relates to the law of the place of the ceremony63[63] or the law
of the place where a contract is made.64[64] The doctrine of lex contractus or lex loci
contractus means the law of the place where a contract is executed or to be performed.65[65]
It controls the nature, construction, and validity of the contract66[66] and it may pertain to the
law voluntarily agreed upon by the parties or the law intended by them either expressly or
implicitly.67[67] Under the state of the most significant relationship rule, to ascertain what













state law to apply to a dispute, the court should determine which state has the most substantial
connection to the occurrence and the parties. In a case involving a contract, the court should
consider where the contract was made, was negotiated, was to be performed, and the domicile,
place of business, or place of incorporation of the parties.68[68] This rule takes into account
several contacts and evaluates them according to their relative importance with respect to the
particular issue to be resolved.69[69]

Since these three principles in conflict of laws make reference to the law applicable to a
dispute, they are rules proper for the second phase, the choice of law.70[70] They determine
which state's law is to be applied in resolving the substantive issues of a conflicts
problem.71[71] Necessarily, as the only issue in this case is that of jurisdiction, choice-of-law
rules are not only inapplicable but also not yet called for.

Further, petitioners' premature invocation of choice-of-law rules is exposed by the fact
that they have not yet pointed out any conflict between the laws of Japan and ours. Before
determining which law should apply, first there should exist a conflict of laws situation requiring









the application of the conflict of laws rules.72[72] Also, when the law of a foreign country is
invoked to provide the proper rules for the solution of a case, the existence of such law must be
pleaded and proved.73[73]

It should be noted that when a conflicts case, one involving a foreign element, is brought
before a court or administrative agency, there are three alternatives open to the latter in disposing
of it: (1) dismiss the case, either because of lack of jurisdiction or refusal to assume jurisdiction
over the case; (2) assume jurisdiction over the case and apply the internal law of the forum; or
(3) assume jurisdiction over the case and take into account or apply the law of some other State
or States.74[74] The courts power to hear cases and controversies is derived from the
Constitution and the laws. While it may choose to recognize laws of foreign nations, the court is
not limited by foreign sovereign law short of treaties or other formal agreements, even in matters
regarding rights provided by foreign sovereigns.75[75]











Neither can the other ground raised, forum non conveniens,76[76] be used to deprive the
trial court of its jurisdiction herein. First, it is not a proper basis for a motion to dismiss because
Section 1, Rule 16 of the Rules of Court does not include it as a ground.77[77] Second, whether
a suit should be entertained or dismissed on the basis of the said doctrine depends largely upon
the facts of the particular case and is addressed to the sound discretion of the trial court.78[78]
In this case, the RTC decided to assume jurisdiction. Third, the propriety of dismissing a case
based on this principle requires a factual determination; hence, this conflicts principle is more
properly considered a matter of defense.79[79]

Accordingly, since the RTC is vested by law with the power to entertain and hear the
civil case filed by respondent and the grounds raised by petitioners to assail that jurisdiction are
inappropriate, the trial and appellate courts correctly denied the petitioners motion to dismiss.

WHEREFORE, premises considered, the petition for review on certiorari
is DENIED.










SO ORDERED.


ANTONIO EDUARDO B. NACHURA
Associate Justice


WE CONCUR:



CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson



MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice



RUBEN T. REYES
Associate Justice


A T T E S T A T I O N

I attest that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.



CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division


C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairperson's Attestation, 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 Courts Division.



REYNATO S. PUNO
Chief Justice
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-54204 September 30, 1982
NORSE MANAGEMENT CO. (PTE) and PACIFIC SEAMEN SERVICES, INC.,
petitioners,
vs.
NATIONAL SEAMEN BOARD, HON. CRESCENCIO M. SIDDAYAO, OSCAR M.
TORRES, REBENE C. CARRERA and RESTITUTA C. ABORDO, respondents.
Bito, Misa & Lozada Law Offices for petitioners.
The Solicitor General and Jose A. Rico for respondents.

RELOVA, J .:
In this petition for certiorari, petitioners pray that the order dated June 20, 1979 of the
National Seamen Board, and the decision dated December 11, 1979 of the Ministry of
Labor be nullified and set aside, and that "if petitioners are found liable to private
respondent, such a liability be reduced to P30,000.00 only, in accordance with
respondent NSB's Standard Format of a Service Agreement."
Napoleon B. Abordo, the deceased husband of private respondent Restituta C. Abordo,
was the Second Engineer of M.T. "Cherry Earl" when he died from an apoplectic stroke
in the course of his employment with petitioner NORSE MANAGEMENT COMPANY
(PTE). The M.T. "Cherry Earl" is a vessel of Singaporean Registry. The late Napoleon
B. Abordo at the time of his death was receiving a monthly salary of US$850.00
(Petition, page 5).
In her complaint for "death compensation benefits, accrued leave pay and time-off
allowances, funeral expenses, attorney's fees and other benefits and reliefs available in
connection with the death of Napoleon B. Abordo," filed before the National Seamen
Board, Restituta C. Abordo alleged that the amount of compensation due her from
petitioners Norse Management Co. (PTE) and Pacific Seamen Services, Inc., principal
and agent, respectively, should be based on the law where the vessel is registered. On
the other hand, petitioners contend that the law of Singapore should not be applied in
this case because the National Seamen Board cannot take judicial notice of the
Workmen's Insurance Law of Singapore. As an alternative, they offered to pay private
respondent Restituta C. Abordo the sum of P30,000.00 as death benefits based on the
Board's Memorandum Circular No. 25 which they claim should apply in this case.
The Hearing Officer III, Rebene C. Carrera of the Ministry of Labor and Employment,
after hearing the case, rendered judgment on June 20, 1979, ordering herein petitioners
"to pay jointly and severally the following:
I. US$30,600 (the 36-month salary of the decreased)) or its equivalent in
Philippine currency as death compensation benefits;
II. US$500.00 or its equivalent in Philippine currency as funeral expenses;
III. US$3,110 or 10% of the total amount recovered as attorney's fees.
It is also ordered that payment must be made thru the National Seamen
Board within ten (10) days from receipt of this decision.
Petitioners appealed to the Ministry of Labor. On December 11, 1979, the Ministry
rendered its decision in this case as follows:
Motion for reconsideration filed by respondents from the Order of this
Board dated 20 June 1979 requiring them to pay complainant, jointly and
severally, the amount of Thirty-four thousand and two hundred ten dollars
($34,210.00) representing death benefits, funeral expenses and attorney's
fees.
The facts in the main are not disputed. The deceased, husband of
complainant herein, was employed as a Second Engineer by respondents
and served as such in the vessel "M.T. Cherry Earl" until that fatal day in
May 1978 when, while at sea, he suffered an apoplectic stroke and died
four days later or on 29 May 1978. In her complaint filed before this Board,
Abordo argued that the amount of compensation due her should be based
on the law where the vessel is registered, which is Singapore law.
Agreeing with said argument, this Board issued the questioned Order.
Hence this Motion for Reconsideration.
In their motion for reconsideration, respondents strongly argue that the law
of Singapore should not be applied in the case considering that their
responsibility was not alleged in the complaint that no proof of the
existence of the Workmen's Insurance Law of Singapore was ever
presented and that the Board cannot take judicial notice of the Workmen's
Insurance Law of Singapore. As an alternative, they offered to pay
complainant the amount of Thirty Thousand Pesos (P30,000.00) as death
benefits based on this Board's Memorandum Circular No. 25 which, they
maintained, should apply in this case.
The only issue we are called upon to rule is whether or not the law of
Singapore ought to be applied in this case.
After an exhaustive study of jurisprudence on the matter. we rule in the
affirmative. Respondents came out with a well-prepared motion which, to
our mind, is more appropriate and perhaps acceptable in the regular court
of justice. Nothing is raised in their motion but question of evidence. But
evidence is usually a matter of procedure of which this Board, being
merely a quasi-judicial body, is not strict about.
It is true that the law of Singapore was not alleged and proved in the
course of the hearing. And following Supreme Court decisions in a long
line of cases that a foreign law, being a matter of evidence, must be
alleged and proved, the law of Singapore ought not to be recognized in
this case. But it is our considered opinion that the jurisprudence on this
matter was never meant to apply to cases before administrative or quasi-
judicial bodies such as the National Seamen Board. For well-settled also
is the rule that administrative and quasi-judicial bodies are not bound
strictly by technical rules. It has always been the policy of this Board, as
enunciated in a long line of cases, that in cases of valid claims for benefits
on account of injury or death while in the course of employment, the law of
the country in which the vessel is registered shall be considered. We see
no reason to deviate from this well-considered policy. Certainly not on
technical grounds as movants herein would like us to.
WHEREFORE, the motion for reconsideration is hereby denied and the
Order of tills Board dated 20 June 1979 affirmed. Let execution issue
immediately.
In Section 5(B) of the "Employment Agreement" between Norse Management Co. (PTE)
and the late Napoleon B. Abordo, which is Annex "C" of the Supplemental Complaint, it
was stipulated that:
In the event of illness or injury to Employee arising out of and in the
course of his employment and not due to his own willful misconduct and
occurring whilst on board any vessel to which he may be assigned, but not
any other time, the EMPLOYER win provide employee with free medical
attention, including hospital treatment, also essential medical treatment in
the course of repatriation and until EMPLOYEE's arrival at his point of
origin. If such illness or injury incapacitates the EMPLOYEE to the extent
the EMPLOYEE's services must be terminated as determined by a
qualified physician designated by the EMPLOYER and provided such
illness or injury was not due in part or whole to his willful act, neglect or
misconduct compensation shall be paid to employee in accordance with
and subject to the limitations of the Workmen's Compensation Act of the
Republic of the Philippines or the Workmen's Insurance Law of registry of
the vessel whichever is greater. (Emphasis supplied)
In the aforementioned "Employment Agreement" between petitioners and the late
Napoleon B. Abordo, it is clear that compensation shall be paid under Philippine Law or
the law of registry of petitioners' vessel, whichever is greater. Since private respondent
Restituta C. Abordo was offered P30,000.00 only by the petitioners, Singapore law was
properly applied in this case.
The "Employment Agreement" is attached to the Supplemental Complaint of Restituta
C. Abordo and, therefore, it forms part thereof. As it is familiar with Singapore Law, the
National Seamen Board is justified in taking judicial notice of and in applying that law. In
the case of VirJen Shipping and Marine Services, Inc. vs. National Seamen Board, et al
(L41297), the respondent Board promulgated a decision, as follows:
The facts established and/or admitted by the parties are the following: that
the late Remigio Roldan was hired by the respondent as Ordinary Seamen
on board the M/V "Singapura Pertama," a vessel of Singapore Registry;
that on September 27, 1973, the deceased Remigio Roldan met an
accident resulting in his death while on board the said M/V "Singapura
Pertama" during the performance of his duties; that on December 3, 1973,
the respondent Virjen Shipping and Marine Services, Inc. paid the
complainant Natividad Roldan the amount of P6,000.00 representing
Workmen's Compensation benefits and donations of the company; that
the amount of P4,870 was spent by the respondent company as burial
expenses of the deceased Remegio Roldan.
The only issue therefore remaining to be resolved by the Board in
connection with the particular case, is whether or not under the existing
laws (Philippine and foreign), the complainant Natividad Roldan is entitled
to additional benefits other than those mentioned earlier. The Board takes
judicial notice, (as a matter of fact, the respondent having admitted in its
memorandum) of the fact that "Singapura Pertama" is a foreign vessel of
Singapore Registry and it is the policy of this Board that in case of award
of benefits to seamen who were either injured in the performance of its
duties or who died while in the course of employment is to consider the
benefits allowed by the country where the vessel is registered. Likewise,
the Board takes notice that Singapore maritime laws relating to workmen's
compensation benefits are similar to that of the Hongkong maritime laws
which provides that in case of death, the heirs of the deceased seaman
should receive the equivalent of 36 months wages of the deceased
seaman; in other words, 36 months multiplied by the basic monthly wages.
In the employment contract submitted with this Board, the terms of which
have never been at issue, is shown that the monthly salary of the
deceased Remigio Roldan at the time of his death was US$80.00; such
that, 36 months multiplied by $80 would come up to US$2,880 and at the
rate of P7.00 to $1.00, the benefits due the claimant would be P20,160.
However, since there was voluntary payment made in the amount of
P6,000 and funeral expenses which under the Workmen's Compensation
Law had a maximum of P200.00, the amount of P6,200.00 should be
deducted from P20,160 and the difference would be P13,960.00.
WHEREFORE, the Board orders the respondent Virjen Shipping and
Marine Services, Inc. to pay the complainant Natividad Roldan the amount
of P13,960.00 within ten (10) days from receipt of this Decision. The
Board also orders the respondent that payment should be made through
the National Seamen Board.
The foregoing decision was assailed as null and void for allegedly having been
rendered without jurisdiction and for awarding compensation benefits beyond the
maximum allowable and on the ground of res judicata. This Court in its resolution dated
October 27, 1975 and December 12, 1975, respectively dismissed for lack of merit the
petition as well as the motion for reconsideration in said G.R. No. L- 41297.
Furthermore, Article 20, Labor Code of the Philippines, provides that the National
Seamen Board has original and exclusive jurisdiction over all matters or cases including
money claims, involving employer-employee relations, arising out of or by virtue of any
law or contracts involving Filipino seamen for overseas employment. Thus, it is safe to
assume that the Board is familiar with pertinent Singapore maritime laws relative to
workmen's compensation. Moreover, the Board may apply the rule on judicial notice
and, "in administrative proceedings, the technical rules of procedure particularly of
evidence applied in judicial trials, do not strictly apply." (Oromeca Lumber Co. Inc. vs.
Social Security Commission, 4 SCRA 1188).
Finally, Article IV of the Labor Code provides that "all doubts in the implementation and
interpretation of the provisions of this code, including its implementing rules and
resolved in favor of labor.
For lack of merit, this petition is DENIED.
SO ORDERED.
Makasiar, Plana, Vasquez and Gutierrez, Jr., JJ., concur.
Teehankee, J., took no part.
Melencio-Herrera J., concur in the result.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 145587 October 26, 2007
EDI-STAFFBUILDERS INTERNATIONAL, INC., petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION and ELEAZAR S. GRAN,
respondents.
D E C I S I O N
VELASCO, JR., J .:
The Case
This Petition for Review on Certiorari
1
seeks to set aside the October 18, 2000 Decision
2
of the
Court of Appeals (CA) in CA-G.R. SP No. 56120 which affirmed the January 15, 1999
Decision
3
and September 30, 1999 Resolution
4
rendered by the National Labor Relations
Commission (NLRC) (Third Division) in POEA ADJ (L) 94-06-2194, ordering Expertise Search
International (ESI), EDI-Staffbuilders International, Inc. (EDI), and Omar Ahmed Ali Bin Bechr
Est. (OAB) jointly and severally to pay Eleazar S. Gran (Gran) the amount of USD 16,150.00 as
unpaid salaries.
The Facts
Petitioner EDI is a corporation engaged in recruitment and placement of Overseas Filipino
Workers (OFWs).
5
ESI is another recruitment agency which collaborated with EDI to process the
documentation and deployment of private respondent to Saudi Arabia.
Private respondent Gran was an OFW recruited by EDI, and deployed by ESI to work for OAB,
in Riyadh, Kingdom of Saudi Arabia.
6

It appears that OAB asked EDI through its October 3, 1993 letter for curricula vitae of qualified
applicants for the position of "Computer Specialist."
7
In a facsimile transmission dated
November 29, 1993, OAB informed EDI that, from the applicants' curricula vitae submitted to it
for evaluation, it selected Gran for the position of "Computer Specialist." The faxed letter also
stated that if Gran agrees to the terms and conditions of employment contained in it, one of
which was a monthly salary of SR (Saudi Riyal) 2,250.00 (USD 600.00), EDI may arrange for
Gran's immediate dispatch.
8

After accepting OAB's offer of employment, Gran signed an employment contract
9
that granted
him a monthly salary of USD 850.00 for a period of two years. Gran was then deployed to
Riyadh, Kingdom of Saudi Arabia on February 7, 1994.
Upon arrival in Riyadh, Gran questioned the discrepancy in his monthly salaryhis employment
contract stated USD 850.00; while his Philippine Overseas Employment Agency (POEA)
Information Sheet indicated USD 600.00 only. However, through the assistance of the EDI office
in Riyadh, OAB agreed to pay Gran USD 850.00 a month.
10

After Gran had been working for about five months for OAB, his employment was terminated
through OAB's July 9, 1994 letter,
11
on the following grounds:
1. Non-compliance to contract requirements by the recruitment agency primarily on your
salary and contract duration.
2. Non-compliance to pre-qualification requirements by the recruitment agency[,] vide
OAB letter ref. F-5751-93, dated October 3, 1993.
12

3. Insubordination or disobedience to Top Management Order and/or instructions (non-
submittal of daily activity reports despite several instructions).
On July 11, 1994, Gran received from OAB the total amount of SR 2,948.00 representing his
final pay, and on the same day, he executed a Declaration
13
releasing OAB from any financial
obligation or otherwise, towards him.
After his arrival in the Philippines, Gran instituted a complaint, on July 21, 1994, against
ESI/EDI, OAB, Country Bankers Insurance Corporation, and Western Guaranty Corporation
with the NLRC, National Capital Region, Quezon City, which was docketed as POEA ADJ (L)
94-06-2194 for underpayment of wages/salaries and illegal dismissal.
The Ruling of the Labor Arbiter
In his February 10, 1998 Decision,
14
Labor Arbiter Manuel R. Caday, to whom Gran's case was
assigned, ruled that there was neither underpayment nor illegal dismissal.
The Labor Arbiter reasoned that there was no underpayment of salaries since according to the
POEA-Overseas Contract Worker (OCW) Information Sheet, Gran's monthly salary was USD
600.00, and in his Confirmation of Appointment as Computer Specialist, his monthly basic
salary was fixed at SR 2,500.00, which was equivalent to USD 600.00.
Arbiter Caday also cited the Declaration executed by Gran, to justify that Gran had no claim for
unpaid salaries or wages against OAB.
With regard to the issue of illegal dismissal, the Labor Arbiter found that Gran failed to refute
EDI's allegations; namely, (1) that Gran did not submit a single activity report of his daily
activity as dictated by company policy; (2) that he was not qualified for the job as computer
specialist due to his insufficient knowledge in programming and lack of knowledge in ACAD
system; (3) that Gran refused to follow management's instruction for him to gain more
knowledge of the job to prove his worth as computer specialist; (4) that Gran's employment
contract had never been substituted; (5) and that Gran was paid a monthly salary of USD 850.00,
and USD 350.00 monthly as food allowance.
Accordingly, the Labor Arbiter decided that Gran was validly dismissed from his work due to
insubordination, disobedience, and his failure to submit daily activity reports.
Thus, on February 10, 1998, Arbiter Caday dismissed Gran's complaint for lack of merit.
Dissatisfied, Gran filed an Appeal
15
on April 6, 1998 with the NLRC, Third Division. However,
it appears from the records that Gran failed to furnish EDI with a copy of his Appeal
Memorandum.
The Ruling of the NLRC
The NLRC held that EDI's seemingly harmless transfer of Gran's contract to ESI is actually
"reprocessing," which is a prohibited transaction under Article 34 (b) of the Labor Code. This
scheme constituted misrepresentation through the conspiracy between EDI and ESI in
misleading Gran and even POEA of the actual terms and conditions of the OFW's employment.
In addition, it was found that Gran did not commit any act that constituted a legal ground for
dismissal. The alleged non-compliance with contractual stipulations relating to Gran's salary and
contract duration, and the absence of pre-qualification requirements cannot be attributed to Gran
but to EDI, which dealt directly with OAB. In addition, the charge of insubordination was not
substantiated, and Gran was not even afforded the required notice and investigation on his
alleged offenses.
Thus, the NLRC reversed the Labor Arbiter's Decision and rendered a new one, the dispositive
portion of which reads:
WHEREFORE, the assailed decision is SET ASIDE. Respondents Expertise Search
International, Inc., EDI Staffbuilders Int'l., Inc. and Omar Ahmed Ali Bin Bechr Est.
(OAB) are hereby ordered jointly and severally liable to pay the complainant Eleazar
Gran the Philippine peso equivalent at the time of actual payment of SIXTEEN
THOUSAND ONE HUNDRED FIFTY US DOLLARS (US$16,150.00) representing his
salaries for the unexpired portion of his contract.
SO ORDERED.
16

Gran then filed a Motion for Execution of Judgment
17
on March 29, 1999 with the NLRC and
petitioner receiving a copy of this motion on the same date.
18

To prevent the execution, petitioner filed an Opposition
19
to Gran's motion arguing that the Writ
of Execution cannot issue because it was not notified of the appellate proceedings before the
NLRC and was not given a copy of the memorandum of appeal nor any opportunity to
participate in the appeal.
Seeing that the NLRC did not act on Gran's motion after EDI had filed its Opposition, petitioner
filed, on August 26, 1999, a Motion for Reconsideration of the NLRC Decision after receiving a
copy of the Decision on August 16, 1999.
20

The NLRC then issued a Resolution
21
denying petitioner's Motion for Reconsideration,
ratiocinating that the issues and arguments raised in the motion "had already been amply
discussed, considered, and ruled upon" in the Decision, and that there was "no cogent reason or
patent or palpable error that warrant any disturbance thereof."
Unconvinced of the NLRC's reasoning, EDI filed a Petition for Certiorari before the CA.
Petitioner claimed in its petition that the NLRC committed grave abuse of discretion in giving
due course to the appeal despite Gran's failure to perfect the appeal.
The Ruling of the Court of Appeals
The CA subsequently ruled on the procedural and substantive issues of EDI's petition.
On the procedural issue, the appellate court held that "Gran's failure to furnish a copy of his
appeal memorandum [to EDI was] a mere formal lapse, an excusable neglect and not a
jurisdictional defect which would justify the dismissal of his appeal."
22
The court also held that
petitioner EDI failed to prove that private respondent was terminated for a valid cause and in
accordance with due process; and that Gran's Declaration releasing OAB from any monetary
obligation had no force and effect. The appellate court ratiocinated that EDI had the burden of
proving Gran's incompetence; however, other than the termination letter, no evidence was
presented to show how and why Gran was considered to be incompetent. The court held that
since the law requires the recruitment agencies to subject OFWs to trade tests before
deployment, Gran must have been competent and qualified; otherwise, he would not have been
hired and deployed abroad.
As for the charge of insubordination and disobedience due to Gran's failure to submit a "Daily
Activity Report," the appellate court found that EDI failed to show that the submission of the
"Daily Activity Report" was a part of Gran's duty or the company's policy. The court also held
that even if Gran was guilty of insubordination, he should have just been suspended or
reprimanded, but not dismissed.
The CA also held that Gran was not afforded due process, given that OAB did not abide by the
twin notice requirement. The court found that Gran was terminated on the same day he received
the termination letter, without having been apprised of the bases of his dismissal or afforded an
opportunity to explain his side.
Finally, the CA held that the Declaration signed by Gran did not bar him from demanding
benefits to which he was entitled. The appellate court found that the Declaration was in the form
of a quitclaim, and as such is frowned upon as contrary to public policy especially where the
monetary consideration given in the Declaration was very much less than what he was legally
entitled tohis backwages amounting to USD 16,150.00.
As a result of these findings, on October 18, 2000, the appellate court denied the petition to set
aside the NLRC Decision.
Hence, this instant petition is before the Court.
The Issues
Petitioner raises the following issues for our consideration:
I. WHETHER THE FAILURE OF GRAN TO FURNISH A COPY OF HIS APPEAL
MEMORANDUM TO PETITIONER EDI WOULD CONSTITUTE A
JURISDICTIONAL DEFECT AND A DEPRIVATION OF PETITIONER EDI'S
RIGHT TO DUE PROCESS AS WOULD JUSTIFY THE DISMISSAL OF GRAN'S
APPEAL.
II. WHETHER PETITIONER EDI HAS ESTABLISHED BY WAY OF
SUBSTANTIAL EVIDENCE THAT GRAN'S TERMINATION WAS JUSTIFIABLE
BY REASON OF INCOMPETENCE. COROLLARY HERETO, WHETHER THE
PRIETO VS. NLRC RULING, AS APPLIED BY THE COURT OF APPEALS, IS
APPLICABLE IN THE INSTANT CASE.
III. WHETHER PETITIONER HAS ESTABLISHED BY WAY OF SUBSTANTIAL
EVIDENCE THAT GRAN'S TERMINATION WAS JUSTIFIABLE BY REASON OF
INSUBORDINATION AND DISOBEDIENCE.
IV. WHETHER GRAN WAS AFFORDED DUE PROCESS PRIOR TO
TERMINATION.
V. WHETHER GRAN IS ENTITLED TO BACKWAGES FOR THE UNEXPIRED
PORTION OF HIS CONTRACT.
23

The Court's Ruling
The petition lacks merit except with respect to Gran's failure to furnish EDI with his Appeal
Memorandum filed with the NLRC.
First Issue: NLRC's Duty is to Require Respondent to Provide Petitioner a Copy of the
Appeal
Petitioner EDI claims that Gran's failure to furnish it a copy of the Appeal Memorandum
constitutes a jurisdictional defect and a deprivation of due process that would warrant a rejection
of the appeal.
This position is devoid of merit.
In a catena of cases, it was ruled that failure of appellant to furnish a copy of the appeal to the
adverse party is not fatal to the appeal.
In Estrada v. National Labor Relations Commission,
24
this Court set aside the order of the NLRC
which dismissed an appeal on the sole ground that the appellant did not furnish the appellee a
memorandum of appeal contrary to the requirements of Article 223 of the New Labor Code and
Section 9, Rule XIII of its Implementing Rules and Regulations.
Also, in J.D. Magpayo Customs Brokerage Corp. v. NLRC, the order of dismissal of an appeal to
the NLRC based on the ground that "there is no showing whatsoever that a copy of the appeal
was served by the appellant on the appellee"
25
was annulled. The Court ratiocinated as follows:
The failure to give a copy of the appeal to the adverse party was a mere formal lapse, an
excusable neglect. Time and again We have acted on petitions to review decisions of the
Court of Appeals even in the absence of proof of service of a copy thereof to the Court of
Appeals as required by Section 1 of Rule 45, Rules of Court. We act on the petitions
and simply require the petitioners to comply with the rule.
26
(Emphasis supplied.)
The J.D. Magpayo ruling was reiterated in Carnation Philippines Employees Labor Union-FFW
v. National Labor Relations Commission,
27
Pagdonsalan v. NLRC,
28
and in Sunrise Manning
Agency, Inc. v. NLRC.
29

Thus, the doctrine that evolved from these cases is that failure to furnish the adverse party with a
copy of the appeal is treated only as a formal lapse, an excusable neglect, and hence, not a
jurisdictional defect. Accordingly, in such a situation, the appeal should not be dismissed;
however, it should not be given due course either. As enunciated in J.D. Magpayo, the duty that
is imposed on the NLRC, in such a case, is to require the appellant to comply with the rule
that the opposing party should be provided with a copy of the appeal memorandum.
While Gran's failure to furnish EDI with a copy of the Appeal Memorandum is excusable, the
abject failure of the NLRC to order Gran to furnish EDI with the Appeal Memorandum
constitutes grave abuse of discretion.
The records reveal that the NLRC discovered that Gran failed to furnish EDI a copy of the
Appeal Memorandum. The NLRC then ordered Gran to present proof of service. In compliance
with the order, Gran submitted a copy of Camp Crame Post Office's list of mail/parcels sent on
April 7, 1998.
30
The post office's list shows that private respondent Gran sent two pieces of mail
on the same date: one addressed to a certain Dan O. de Guzman of Legaspi Village, Makati; and
the other appears to be addressed to Neil B. Garcia (or Gran),
31
of Ermita, Manilaboth of
whom are not connected with petitioner.
This mailing list, however, is not a conclusive proof that EDI indeed received a copy of the
Appeal Memorandum.
Sec. 5 of the NLRC Rules of Procedure (1990) provides for the proof and completeness of
service in proceedings before the NLRC:
Section 5.
32
Proof and completeness of service.The return is prima facie proof of the
facts indicated therein. Service by registered mail is complete upon receipt by the
addressee or his agent; but if the addressee fails to claim his mail from the post office
within five (5) days from the date of first notice of the postmaster, service shall take
effect after such time. (Emphasis supplied.)
Hence, if the service is done through registered mail, it is only deemed complete when the
addressee or his agent received the mail or after five (5) days from the date of first notice of the
postmaster. However, the NLRC Rules do not state what would constitute proper proof of
service.
Sec. 13, Rule 13 of the Rules of Court, provides for proofs of service:
Section 13. Proof of service.Proof of personal service shall consist of a written
admission of the party served or the official return of the server, or the affidavit of the
party serving, containing a full statement of the date, place and manner of service. If the
service is by ordinary mail, proof thereof shall consist of an affidavit of the person
mailing of facts showing compliance with section 7 of this Rule. If service is made by
registered mail, proof shall be made by such affidavit and registry receipt issued by
the mailing office. The registry return card shall be filed immediately upon its
receipt by the sender, or in lieu thereof the unclaimed letter together with the
certified or sworn copy of the notice given by the postmaster to the addressee
(emphasis supplied).
Based on the foregoing provision, it is obvious that the list submitted by Gran is not conclusive
proof that he had served a copy of his appeal memorandum to EDI, nor is it conclusive proof that
EDI received its copy of the Appeal Memorandum. He should have submitted an affidavit
proving that he mailed the Appeal Memorandum together with the registry receipt issued by the
post office; afterwards, Gran should have immediately filed the registry return card.
Hence, after seeing that Gran failed to attach the proof of service, the NLRC should not have
simply accepted the post office's list of mail and parcels sent; but it should have required Gran
to properly furnish the opposing parties with copies of his Appeal Memorandum as
prescribed in J .D. Magpayo and the other cases. The NLRC should not have proceeded with
the adjudication of the case, as this constitutes grave abuse of discretion.
The glaring failure of NLRC to ensure that Gran should have furnished petitioner EDI a copy of
the Appeal Memorandum before rendering judgment reversing the dismissal of Gran's complaint
constitutes an evasion of the pertinent NLRC Rules and established jurisprudence. Worse, this
failure deprived EDI of procedural due process guaranteed by the Constitution which can serve
as basis for the nullification of proceedings in the appeal before the NLRC. One can only
surmise the shock and dismay that OAB, EDI, and ESI experienced when they thought that the
dismissal of Gran's complaint became final, only to receive a copy of Gran's Motion for
Execution of Judgment which also informed them that Gran had obtained a favorable NLRC
Decision. This is not level playing field and absolutely unfair and discriminatory against the
employer and the job recruiters. The rights of the employers to procedural due process cannot be
cavalierly disregarded for they too have rights assured under the Constitution.
However, instead of annulling the dispositions of the NLRC and remanding the case for further
proceedings we will resolve the petition based on the records before us to avoid a protracted
litigation.
33

The second and third issues have a common matterwhether there was just cause for Gran's
dismissalhence, they will be discussed jointly.
Second and Third Issues: Whether Gran's dismissal is justifiable by reason of
incompetence, insubordination, and disobedience
In cases involving OFWs, the rights and obligations among and between the OFW, the local
recruiter/agent, and the foreign employer/principal are governed by the employment contract. A
contract freely entered into is considered law between the parties; and hence, should be
respected. In formulating the contract, the parties may establish such stipulations, clauses, terms
and conditions as they may deem convenient, provided they are not contrary to law, morals, good
customs, public order, or public policy.
34

In the present case, the employment contract signed by Gran specifically states that Saudi Labor
Laws will govern matters not provided for in the contract (e.g. specific causes for termination,
termination procedures, etc.). Being the law intended by the parties (lex loci intentiones) to apply
to the contract, Saudi Labor Laws should govern all matters relating to the termination of the
employment of Gran.
In international law, the party who wants to have a foreign law applied to a dispute or case has
the burden of proving the foreign law. The foreign law is treated as a question of fact to be
properly pleaded and proved as the judge or labor arbiter cannot take judicial notice of a foreign
law. He is presumed to know only domestic or forum law.
35

Unfortunately for petitioner, it did not prove the pertinent Saudi laws on the matter; thus, the
International Law doctrine of presumed-identity approach or processual presumption comes into
play.
36
Where a foreign law is not pleaded or, even if pleaded, is not proved, the presumption is
that foreign law is the same as ours.
37
Thus, we apply Philippine labor laws in determining the
issues presented before us.
Petitioner EDI claims that it had proven that Gran was legally dismissed due to incompetence
and insubordination or disobedience.
This claim has no merit.
In illegal dismissal cases, it has been established by Philippine law and jurisprudence that the
employer should prove that the dismissal of employees or personnel is legal and just.
Section 33 of Article 277 of the Labor Code
38
states that:
ART. 277. MISCELLANEOUS PROVISIONS
39

(b) Subject to the constitutional right of workers to security of tenure and their right to be
protected against dismissal except for a just and authorized cause and without prejudice
to the requirement of notice under Article 283 of this Code, the employer shall furnish the
worker whose employment is sought to be terminated a written notice containing a
statement of the causes for termination and shall afford the latter ample opportunity to be
heard and to defend himself with the assistance of his representative if he so desires in
accordance with company rules and regulations promulgated pursuant to guidelines set
by the Department of Labor and Employment. Any decision taken by the employer shall
be without prejudice to the right of the workers to contest the validity or legality of his
dismissal by filing a complaint with the regional branch of the National Labor Relations
Commission. The burden of proving that the termination was for a valid or
authorized cause shall rest on the employer. x x x
In many cases, it has been held that in termination disputes or illegal dismissal cases, the
employer has the burden of proving that the dismissal is for just and valid causes; and failure to
do so would necessarily mean that the dismissal was not justified and therefore illegal.
40
Taking
into account the character of the charges and the penalty meted to an employee, the employer is
bound to adduce clear, accurate, consistent, and convincing evidence to prove that the dismissal
is valid and legal.
41
This is consistent with the principle of security of tenure as guaranteed by the
Constitution and reinforced by Article 277 (b) of the Labor Code of the Philippines.
42

In the instant case, petitioner claims that private respondent Gran was validly dismissed for just
cause, due to incompetence and insubordination or disobedience. To prove its allegations, EDI
submitted two letters as evidence. The first is the July 9, 1994 termination letter,
43
addressed to
Gran, from Andrea E. Nicolaou, Managing Director of OAB. The second is an unsigned April
11, 1995 letter
44
from OAB addressed to EDI and ESI, which outlined the reasons why OAB had
terminated Gran's employment.
Petitioner claims that Gran was incompetent for the Computer Specialist position because he had
"insufficient knowledge in programming and zero knowledge of [the] ACAD system."
45

Petitioner also claims that Gran was justifiably dismissed due to insubordination or disobedience
because he continually failed to submit the required "Daily Activity Reports."
46
However, other
than the abovementioned letters, no other evidence was presented to show how and why Gran
was considered incompetent, insubordinate, or disobedient. Petitioner EDI had clearly failed to
overcome the burden of proving that Gran was validly dismissed.
Petitioner's imputation of incompetence on private respondent due to his "insufficient knowledge
in programming and zero knowledge of the ACAD system" based only on the above mentioned
letters, without any other evidence, cannot be given credence.
An allegation of incompetence should have a factual foundation. Incompetence may be shown by
weighing it against a standard, benchmark, or criterion. However, EDI failed to establish any
such bases to show how petitioner found Gran incompetent.
In addition, the elements that must concur for the charge of insubordination or willful
disobedience to prosper were not present.
In Micro Sales Operation Network v. NLRC, we held that:
For willful disobedience to be a valid cause for dismissal, the following twin elements
must concur: (1) the employee's assailed conduct must have been willful, that is,
characterized by a wrongful and perverse attitude; and (2) the order violated must have
been reasonable, lawful, made known to the employee and must pertain to the duties
which he had been engaged to discharge.
47

EDI failed to discharge the burden of proving Gran's insubordination or willful disobedience. As
indicated by the second requirement provided for in Micro Sales Operation Network, in order to
justify willful disobedience, we must determine whether the order violated by the employee is
reasonable, lawful, made known to the employee, and pertains to the duties which he had been
engaged to discharge. In the case at bar, petitioner failed to show that the order of the company
which was violatedthe submission of "Daily Activity Reports"was part of Gran's duties as a
Computer Specialist. Before the Labor Arbiter, EDI should have provided a copy of the company
policy, Gran's job description, or any other document that would show that the "Daily Activity
Reports" were required for submission by the employees, more particularly by a Computer
Specialist.
Even though EDI and/or ESI were merely the local employment or recruitment agencies and not
the foreign employer, they should have adduced additional evidence to convincingly show that
Gran's employment was validly and legally terminated. The burden devolves not only upon the
foreign-based employer but also on the employment or recruitment agency for the latter is not
only an agent of the former, but is also solidarily liable with the foreign principal for any claims
or liabilities arising from the dismissal of the worker.
48

Thus, petitioner failed to prove that Gran was justifiably dismissed due to incompetence,
insubordination, or willful disobedience.
Petitioner also raised the issue that Prieto v. NLRC,
49
as used by the CA in its Decision, is not
applicable to the present case.
In Prieto, this Court ruled that "[i]t is presumed that before their deployment, the petitioners
were subjected to trade tests required by law to be conducted by the recruiting agency to insure
employment of only technically qualified workers for the foreign principal."
50
The CA, using the
ruling in the said case, ruled that Gran must have passed the test; otherwise, he would not have
been hired. Therefore, EDI was at fault when it deployed Gran who was allegedly "incompetent"
for the job.
According to petitioner, the Prieto ruling is not applicable because in the case at hand, Gran
misrepresented himself in his curriculum vitae as a Computer Specialist; thus, he was not
qualified for the job for which he was hired.
We disagree.
The CA is correct in applying Prieto. The purpose of the required trade test is to weed out
incompetent applicants from the pool of available workers. It is supposed to reveal applicants
with false educational backgrounds, and expose bogus qualifications. Since EDI deployed Gran
to Riyadh, it can be presumed that Gran had passed the required trade test and that Gran is
qualified for the job. Even if there was no objective trade test done by EDI, it was still EDI's
responsibility to subject Gran to a trade test; and its failure to do so only weakened its position
but should not in any way prejudice Gran. In any case, the issue is rendered moot and academic
because Gran's incompetency is unproved.
Fourth Issue: Gran was not Afforded Due Process
As discussed earlier, in the absence of proof of Saudi laws, Philippine Labor laws and
regulations shall govern the relationship between Gran and EDI. Thus, our laws and rules on the
requisites of due process relating to termination of employment shall apply.
Petitioner EDI claims that private respondent Gran was afforded due process, since he was
allowed to work and improve his capabilities for five months prior to his termination.
51
EDI also
claims that the requirements of due process, as enunciated in Santos, Jr. v. NLRC,
52
and Malaya
Shipping Services, Inc. v. NLRC,
53
cited by the CA in its Decision, were properly observed in the
present case.
This position is untenable.
In Agabon v. NLRC,
54
this Court held that:
Procedurally, (1) if the dismissal is based on a just cause under Article 282, the employer
must give the employee two written notices and a hearing or opportunity to be heard if
requested by the employee before terminating the employment: a notice specifying the
grounds for which dismissal is sought a hearing or an opportunity to be heard and after
hearing or opportunity to be heard, a notice of the decision to dismiss; and (2) if the
dismissal is based on authorized causes under Articles 283 and 284, the employer must
give the employee and the Department of Labor and Employment written notices 30 days
prior to the effectivity of his separation.
Under the twin notice requirement, the employees must be given two (2) notices before their
employment could be terminated: (1) a first notice to apprise the employees of their fault, and (2)
a second notice to communicate to the employees that their employment is being terminated. In
between the first and second notice, the employees should be given a hearing or opportunity to
defend themselves personally or by counsel of their choice.
55

A careful examination of the records revealed that, indeed, OAB's manner of dismissing Gran
fell short of the two notice requirement. While it furnished Gran the written notice informing him
of his dismissal, it failed to furnish Gran the written notice apprising him of the charges against
him, as prescribed by the Labor Code.
56
Consequently, he was denied the opportunity to respond
to said notice. In addition, OAB did not schedule a hearing or conference with Gran to defend
himself and adduce evidence in support of his defenses. Moreover, the July 9, 1994 termination
letter was effective on the same day. This shows that OAB had already condemned Gran to
dismissal, even before Gran was furnished the termination letter. It should also be pointed out
that OAB failed to give Gran the chance to be heard and to defend himself with the assistance of
a representative in accordance with Article 277 of the Labor Code. Clearly, there was no
intention to provide Gran with due process. Summing up, Gran was notified and his employment
arbitrarily terminated on the same day, through the same letter, and for unjustified grounds.
Obviously, Gran was not afforded due process.
Pursuant to the doctrine laid down in Agabon,
57
an employer is liable to pay nominal damages as
indemnity for violating the employee's right to statutory due process. Since OAB was in breach
of the due process requirements under the Labor Code and its regulations, OAB, ESI, and EDI,
jointly and solidarily, are liable to Gran in the amount of PhP 30,000.00 as indemnity.
Fifth and Last Issue: Gran is Entitled to Backwages
We reiterate the rule that with regard to employees hired for a fixed period of employment, in
cases arising before the effectivity of R.A. No. 8042
58
(Migrant Workers and Overseas Filipinos
Act) on August 25, 1995, that when the contract is for a fixed term and the employees are
dismissed without just cause, they are entitled to the payment of their salaries corresponding to
the unexpired portion of their contract.
59
On the other hand, for cases arising after the effectivity
of R.A. No. 8042, when the termination of employment is without just, valid or authorized cause
as defined by law or contract, the worker shall be entitled to the full reimbursement of his
placement fee with interest of twelve percent (12%) per annum, plus his salaries for the
unexpired portion of his employment contract or for three (3) months for every year of the
unexpired term whichever is less.
60

In the present case, the employment contract provides that the employment contract shall be
valid for a period of two (2) years from the date the employee starts to work with the employer.
61

Gran arrived in Riyadh, Saudi Arabia and started to work on February 7, 1994;
62
hence, his
employment contract is until February 7, 1996. Since he was illegally dismissed on July 9, 1994,
before the effectivity of R.A. No. 8042, he is therefore entitled to backwages corresponding to
the unexpired portion of his contract, which was equivalent to USD 16,150.
Petitioner EDI questions the legality of the award of backwages and mainly relies on the
Declaration which is claimed to have been freely and voluntarily executed by Gran. The relevant
portions of the Declaration are as follows:
I, ELEAZAR GRAN (COMPUTER SPECIALIST) AFTER RECEIVING MY FINAL
SETTLEMENT ON THIS DATE THE AMOUNT OF:
S.R. 2,948.00 (SAUDI RIYALS TWO THOUSAND NINE
HUNDRED FORTY EIGHT ONLY)
REPRESENTING COMPLETE PAYMENT (COMPENSATION) FOR THE
SERVICES I RENDERED TO OAB ESTABLISHMENT.
I HEREBY DECLARE THAT OAB EST. HAS NO FINANCIAL OBLIGATION IN
MY FAVOUR AFTER RECEIVING THE ABOVE MENTIONED AMOUNT IN
CASH.
I STATE FURTHER THAT OAB EST. HAS NO OBLIGATION TOWARDS ME IN
WHATEVER FORM.
I ATTEST TO THE TRUTHFULNESS OF THIS STATEMENT BY AFFIXING MY
SIGNATURE VOLUNTARILY.
SIGNED.
ELEAZAR GRAN
Courts must undertake a meticulous and rigorous review of quitclaims or waivers, more
particularly those executed by employees. This requirement was clearly articulated by Chief
Justice Artemio V. Panganiban in Land and Housing Development Corporation v. Esquillo:
Quitclaims, releases and other waivers of benefits granted by laws or contracts in favor of
workers should be strictly scrutinized to protect the weak and the disadvantaged. The
waivers should be carefully examined, in regard not only to the words and terms
used, but also the factual circumstances under which they have been executed.
63

(Emphasis supplied.)
This Court had also outlined in Land and Housing Development Corporation, citing Periquet v.
NLRC,
64
the parameters for valid compromise agreements, waivers, and quitclaims:
Not all waivers and quitclaims are invalid as against public policy. If the agreement was
voluntarily entered into and represents a reasonable settlement, it is binding on the parties
and may not later be disowned simply because of a change of mind. It is only where there
is clear proof that the waiver was wangled from an unsuspecting or gullible person, or the
terms of settlement are unconscionable on its face, that the law will step in to annul the
questionable transaction. But where it is shown that the person making the waiver did
so voluntarily, with full understanding of what he was doing, and the consideration
for the quitclaim is credible and reasonable, the transaction must be recognized as a
valid and binding undertaking. (Emphasis supplied.)
Is the waiver and quitclaim labeled a Declaration valid? It is not.
The Court finds the waiver and quitclaim null and void for the following reasons:
1. The salary paid to Gran upon his termination, in the amount of SR 2,948.00, is unreasonably
low. As correctly pointed out by the court a quo, the payment of SR 2,948.00 is even lower than
his monthly salary of SR 3,190.00 (USD 850.00). In addition, it is also very much less than the
USD 16,150.00 which is the amount Gran is legally entitled to get from petitioner EDI as
backwages.
2. The Declaration reveals that the payment of SR 2,948.00 is actually the payment for Gran's
salary for the services he rendered to OAB as Computer Specialist. If the Declaration is a
quitclaim, then the consideration should be much much more than the monthly salary of SR
3,190.00 (USD 850.00)although possibly less than the estimated Gran's salaries for the
remaining duration of his contract and other benefits as employee of OAB. A quitclaim will
understandably be lower than the sum total of the amounts and benefits that can possibly be
awarded to employees or to be earned for the remainder of the contract period since it is a
compromise where the employees will have to forfeit a certain portion of the amounts they are
claiming in exchange for the early payment of a compromise amount. The court may however
step in when such amount is unconscionably low or unreasonable although the employee
voluntarily agreed to it. In the case of the Declaration, the amount is unreasonably small
compared to the future wages of Gran.
3. The factual circumstances surrounding the execution of the Declaration would show that Gran
did not voluntarily and freely execute the document. Consider the following chronology of
events:
a. On July 9, 1994, Gran received a copy of his letter of termination;
b. On July 10, 1994, Gran was instructed to depart Saudi Arabia and required to pay his
plane ticket;
65

c. On July 11, 1994, he signed the Declaration;
d. On July 12, 1994, Gran departed from Riyadh, Saudi Arabia; and
e. On July 21, 1994, Gran filed the Complaint before the NLRC.
The foregoing events readily reveal that Gran was "forced" to sign the Declaration and
constrained to receive the amount of SR 2,948.00 even if it was against his willsince he was
told on July 10, 1994 to leave Riyadh on July 12, 1994. He had no other choice but to sign the
Declaration as he needed the amount of SR 2,948.00 for the payment of his ticket. He could have
entertained some apprehensions as to the status of his stay or safety in Saudi Arabia if he would
not sign the quitclaim.
4. The court a quo is correct in its finding that the Declaration is a contract of adhesion which
should be construed against the employer, OAB. An adhesion contract is contrary to public
policy as it leaves the weaker partythe employeein a "take-it-or-leave-it" situation.
Certainly, the employer is being unjust to the employee as there is no meaningful choice on the
part of the employee while the terms are unreasonably favorable to the employer.
66

Thus, the Declaration purporting to be a quitclaim and waiver is unenforceable under Philippine
laws in the absence of proof of the applicable law of Saudi Arabia.
In order to prevent disputes on the validity and enforceability of quitclaims and waivers of
employees under Philippine laws, said agreements should contain the following:
1. A fixed amount as full and final compromise settlement;
2. The benefits of the employees if possible with the corresponding amounts, which the
employees are giving up in consideration of the fixed compromise amount;
3. A statement that the employer has clearly explained to the employee in English, Filipino, or in
the dialect known to the employeesthat by signing the waiver or quitclaim, they are forfeiting
or relinquishing their right to receive the benefits which are due them under the law; and
4. A statement that the employees signed and executed the document voluntarily, and had fully
understood the contents of the document and that their consent was freely given without any
threat, violence, duress, intimidation, or undue influence exerted on their person.
It is advisable that the stipulations be made in English and Tagalog or in the dialect known to
the employee. There should be two (2) witnesses to the execution of the quitclaim who must
also sign the quitclaim. The document should be subscribed and sworn to under oath preferably
before any administering official of the Department of Labor and Employment or its regional
office, the Bureau of Labor Relations, the NLRC or a labor attach in a foreign country. Such
official shall assist the parties regarding the execution of the quitclaim and waiver.
67
This
compromise settlement becomes final and binding under Article 227 of the Labor Code which
provides that:
[A]ny compromise settlement voluntarily agreed upon with the assistance of the Bureau
of Labor Relations or the regional office of the DOLE, shall be final and binding upon
the parties and the NLRC or any court "shall not assume jurisdiction over issues involved
therein except in case of non-compliance thereof or if there is prima facie evidence that
the settlement was obtained through fraud, misrepresentation, or coercion.
It is made clear that the foregoing rules on quitclaim or waiver shall apply only to labor contracts
of OFWs in the absence of proof of the laws of the foreign country agreed upon to govern said
contracts. Otherwise, the foreign laws shall apply.
WHEREFORE, the petition is DENIED. The October 18, 2000 Decision in CA-G.R. SP No.
56120 of the Court of Appeals affirming the January 15, 1999 Decision and September 30, 1999
Resolution of the NLRC
is AFFIRMED with the MODIFICATION that petitioner EDI-Staffbuilders International, Inc.
shall pay the amount of PhP 30,000.00 to respondent Gran as nominal damages for non-
compliance with statutory due process.
No costs.
SO ORDERED.
Quisumbing, Carpio, Tinga, Nachura, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 99358 January 30, 1995
DJUMANTAN, petitioner,
vs.
HON. ANDREA D. DOMINGO, COMMISSIONER OF THE BOARD OF IMMIGRATION, HON. REGINO R. SANTIAGO and HON. JORGE
V. SARMIENTO, COMMISSIONERS BUREAU OF IMMIGRATION AND DEPORTATION, respondents.

QUIASON, J .:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court with preliminary injunction, to reverse and set aside the Decision
dated September 27, 1990 of the Commission on Immigration and Deportation (CID), ordering the deportation of petitioner and its Resolution
dated January 29, 1991, denying the motion for reconsideration.
I
Bernard Banez, the husband of Marina Cabael, went to Indonesia as a contract worker.
On April 3, 1974, he embraced and was converted to Islam. On May 17, 1974, he married petitioner in accordance with Islamic rites. He
returned to the Philippines in January 1979.
On January 13, 1979, petitioner and her two children with Banez, (two-year old Marina and nine-month old Nikulas) arrived in Manila as the
"guests" of Banez. The latter made it appear that he was just a friend of the family of petitioner and was merely repaying the hospitability
extended to him during his stay in Indonesia.
When petitioner and her two children arrived at the Ninoy Aquino International Airport on January 13, 1979, Banez, together with Marina
Cabael, met them.
Banez executed an "Affidavit of Guaranty and Support," for his "guests," stating inter alia, that:
That I am the guarantor for the entry into the Philippines of Mrs. Djumantan, 42 years old, and her two minor children,
MARINA, 2 years old, and NIKULAS, 9 months old, all Indonesian citizens, who are coming as temporary visitors.
That I am willing to guaranty them out of gratitude to their family for the hospitality they have accorded me during the
few years that I have stayed in Indonesia in connection with my employment thereat.
That I guaranty they are law abiding citizens and I guaranty their behavior while they are in the Philippines; I also
guaranty their support and that they will not become a public charge.
That I guaranty their voluntary departure upon the termination of the authorized stay granted them by the Government
(Rollo, p. 41).
As "guests," petitioner and her two children lived in the house of Banez.
Petitioner and her children were admitted to the Philippines as temporary visitors under Section 9(a) of the Immigration Act of 1940.
In 1981, Marina Cabael discovered the true relationship of her husband and petitioner. She filed a complaint for "concubinage" with the
Municipal Trial Court of Urdaneta, Pangasinan against the two. This case was, however, dismissed for lack of merit.
On March 25, 1982, the immigration status of petitioner was changed from temporary visitor to that of permanent resident under Section
13(a) of the same law. On April 14, 1982, petitioner was issued an alien certificate of registration.
Not accepting the set-back, Banez' eldest son, Leonardo, filed a letter complaint with the Ombudsman, who subsequently referred the letter
to the CID. On the basis of the said letter, petitioner was detained at the CID detention cell. She later released pending the deportation
proceedings (DEP Case No. 90-400) after posting a cash bond (Rollo, pp. 15-16). Thereafter, she manifested to the CID that she be allowed
to depart voluntarily from the Philippines and asked for time to purchase her airline ticket (Rollo, p. 10). However, she a change of heart and
moved for the dismissal of the deportation case on the ground that she was validly married to a Filipino citizen (Rollo, pp. 11-12).
In the Decision dated September 27, 1990, the CID, through public respondents, disposed as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, the Board of Commissioners finds the second marriage of Bernardo
Banes to respondent Djumantan irregular and not in accordance with the laws of the Philippines. We revoke the
Section 13(a) visa previously granted to her (Rollo, p. 23).
Public respondents denied petitioner's motion for reconsideration in their Resolution dated January 29, 1991 (Rollo, pp. 31-33).
Hence, this petition.
We issued a temporary restraining order, directing public respondents to cease and desist from executing or implementing the Decision
dated September 27, 1990 and the Resolution dated January 29, 1991 (Rollo, pp. 34-36).
On September 20, 1994, Leonardo C. Banez manifested that his father died on August 14, 1994 and that he and his mother were
withdrawing their objection to the granting of a permanent resident visa to petitioner (Rollo, pp. 173-175).
II
Petitioner claims that her marriage to Banez was valid under Article 27 of P.D. No. 1085, the Muslim Code, which recognizes the practice of
polyandry by Muslim males. From that premise, she argues that under Articles 109 of the Civil Code of the Philippines, Article 68 of the
Family Code and Article 34 of the Muslim Code, the husband and wife are obliged to live together and under Article 110 of the Civil Code of
the Philippines, the husband is given the right to fix the conjugal residence. She claims that public respondents have no right to order the
couple to live separately (Rollo, pp. 5-7).
When asked to comment on the petition, the Solicitor General took the position that the CID could not order petitioner's deportation because
its power to do so had prescribed under Section 37 (b) of the Immigration Act of 1940 (Rollo, pp. 57-74).
III
We need not resolve the validity of petitioner's marriage to Banez, if under the law the CID can validly deport petitioner as an "undesirable
alien" regardless of her marriage to a Filipino citizen. Therefore, to be first resolved is the question on petitioner's immigration status,
particularly the legality of her admission into the country and the change of her status from temporary visitor to permanent resident. Upon a
finding that she was not lawfully admitted into the country and she did not lawfully acquire permanent residency, the next question is whether
the power to deport her has prescribed.
There was a blatant abuse of our immigration laws in effecting petitioner's entry into the country and the change of her immigration status
from temporary visitor to permanent resident. All such privileges were obtained through misinterpretation.
Never was the marriage of petitioner to Banez disclosed to the immigration authorities in her applications for temporary visitor's visa and for
permanent residency.
The civil status of an alien applicant for admission as a temporary visitor is a matter that could influence the exercise of discretion on the part
of the immigration authorities. The immigration authorities would be less inclined to allow the entry of a woman who claims to have entered
into a marriage with a Filipino citizen, who is married to another woman (Cf. Shiu Shin Man v. Galang, 3 SCRA 871 [1961]).
Generally, the right of the President to expel or deport aliens whose presence is deemed inimical to the public interest is as absolute and
unqualified as the right to prohibit and prevent their entry into the country (Annotations, 8 ALR 1286). this right is based on the fact that since
the aliens are not part of the nation, their admission into the territory is a matter of pure permission and simple tolerance which creates no
obligation on the part of the government to permit them to stay (3 Am. Jur. 2d. 72).
The interest, which an alien has in being admitted into or allowed to continue to reside in the country, is protected only so far as Congress
may choose to protect it (United States ex rel. Kaloudis v. Shauhnessy 180 F. 2d. 489).
There is no law guaranteeing aliens married to Filipino citizens the right to be admitted, much less to be given permanent residency, in the
Philippines.
The fact of marriage by an alien to a citizen does not withdraw her from the operation of the immigration laws governing the admission and
exclusion of aliens (United States ex rel. Knauff v. Shauhnessy, 338 US 537 94 L. Ed. 317, 70 S. Ct. 309 [1950]; Low Wah Suey v. Backus,
225 US 460 56 L. Ed. 1165, 32 S. Ct. 734 [1912]; Annotations, 71 ALR 1213). Marriage of an alien woman to a Filipino husband does not
ipso facto make her a Filipino citizen and does not excuse her from her failure to depart from the country upon the expiration of her extended
stay here as an alien (Joaquin v. Galang, 33 SCRA 362 [1970]).
Under Section 9 of the Immigration Act of 1940, it is not mandatory for the CID to admit any alien who applies for a visitor's visa. Once
admitted into the country, the alien has no right to an indefinite stay. Under Section 13 of the law, an alien allowed to stay temporarily may
apply for a change of status and "may be admitted" as a permanent resident. Among those considered qualified to apply for permanent
residency if the wife or husband of a Philippine citizen (Immigration Act of 1940, Sec. 13[a]). The entry of aliens into the country and their
admission as immigrants is not a matter of right, even if they are legally married to Filipino citizens.
IV
We now address the issue raised by the Solicitor General that the right of public respondents to deport petitioner has prescribed, citing
Section 37(b) of the Immigration Act of 1940.
Said Section 37(b) provides:
Deportation may be effected under clauses 2, 7, 8, 11 and 12 of paragraph (a) of this section at any time after entry,
but shall not be effected under any clause unless the arrest in the deportation proceedings is made within five years
after the cause for deportation arises. Deportation under clauses 3 and 4 shall not be effected if the court, or judge
thereof, when sentencing the alien, shall recommend to the Commissioner of Immigration that the alien be not deported
(As amended by Rep. Act No. 503).
Section 37(a) of the said law mentioned in Section 37(b) thereof provides:
The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or of any other officer
designated by him for the purpose and deported upon the warrant of the Commissioner of Immigration after a
determination by the Board of Commissioners of the existence of the ground for deportation as charged against the
alien:
1) Any alien who enters the Philippines after the effective date of this Act by means of false and misleading statements
or without inspection and admission by the immigration authorities at a designating port of entry or at any place other
than at a designated port of entry.
2) Any alien who enters the Philippines after the effective date of this Act, who was not lawfully admissible at the time
of entry;
3) Any alien who, after the effective date of this Act, is convicted in the Philippines and sentenced for a term of one
year or more for a crime involving moral turpitude committed within five years after his entry, is so convicted and
sentenced more than once;
4) Any alien who is convicted and sentenced for a violation of the law governing prohibited drugs;
5) Any alien who practices prostitution or is an inmate of a house of prostitution or is connected with the management
of a house of prostitution, or is a procurer;
6) Any alien who becomes a public charge within five years after entry from causes not affirmatively shown to have
arisen subsequent to entry;
7) Any alien who remains in the Philippines in violation of any limitation or condition under which he was admitted a
non-immigrant;
8) Any alien who believes in, advises, advocates or teaches the overthrow by force and violence of the Government of
the Philippines, or of constituted law and authority, or who disbelieves in or is opposed to organized government, or
who advises, advocates, or teaches the assault or assassination of public officials because of their office, or who
advises, advocates, or teaches the unlawful destruction of property, or who is a member of or affiliated with any
organization entertaining, advocating or teaching such doctrines, or who on any manner whatsoever lends assistance,
financial or otherwise, to the dissemination of such doctrines;
9) Any alien who commits any of the acts described in Sections forty-five and forty-six of this Act, independent of
criminal action which may be brought against him: Provided, That in the case of an alien who, for any reason, is
convicted and sentenced to suffer both imprisonment and deportation, said alien shall first serve the entire period of his
imprisonment before he is actually deported: Provided, however, That the imprisonment may be waived by the
Commissioner of Immigration with the consent of the Department Head, and upon payment by the alien concerned of
such amount as the Commissioner may fix and approved by the Department Head, and upon payment by the alien
concerned of such amount as the Commissioner may fix and approved by the Department Head (as amended by R.A.
No. 144);
10) Any alien who, at any time within five years after entry, shall have been convicted of violating the provisions of the
Philippine Commonwealth Act Numbered Six hundred and fifty-three, otherwise known as the Philippine Alien
Registration Act of 1941 (now Republic Act No. 562), or who, at any time after entry, shall have been convicted more
than once of violating the provisions of the same Act;
11) Any alien who engages in profiteering, hoarding, or black-marketing, independent of any criminal action which may
be brought against him;
12) Any alien who is convicted of any offense penalized under Commonwealth Act Numbered Four hundred and
seventy-three, otherwise known as the Revised Naturalization Laws of the Philippines, or any law relating to acquisition
of Philippine citizenship;
13) Any alien who defrauds his creditor by absconding or alienating properties, to prevent them from being attached or
executed.
Under clause 1 of Section 37(a), an "alien who enters the Philippines after the effective date of this Act by means of false and misleading
statements or without inspection and admission by the immigration authorities at a designated port of entry or at any place other than at a
designated port of entry" is subject to deportation.
The deportation of an alien under said clause of Section 37(a) has a prescriptive period and "shall not be effected ... unless the arrest in the
deportation proceedings is made within five years after the cause for deportation arises" (Immigration Act of 1940, Sec. 37[b]).
Congress may impose a limitation of time for the deportation of alien from the country (Costanzo v. Tillinghast, 287 US 341 77 L. Ed. 350, 53
S. Ct. 152 [1932]; Guiney v. Bonham [CA 9] 261 F. 582, 8 ALR 1282).
In Board of Commissioners (CID) v. Dela Rosa, 197 SCRA 853 (1991), we held that under Section 37(b) of the Immigration Act of 1940, the
deportation of an alien may be barred after the lapse of five years after the cause of deportation arises. Justice Feliciano, in his dissenting
opinion, qualified the broad statement of the law as follows:
Examination of the above quoted Section 37 (b) shows that the five (5) year limitation is applicable only where
deportation is sought to be effected under clauses of Section 37 (a) other than clauses 2, 7, 8, 11 and 12; that where
deportation or exclusion is sought to be effected under clauses of Section 37(a), no period of limitation is applicable;
and that to the contrary, deportation or exclusion may be effected "at any time after entry."
Justice Davide, in his dissenting opinion, clarified:
Note that the five-year period applies only to clauses other than 2, 7, 8, 11 and 12 of paragraph (a) of the Section. In
respect to clauses 2, 7, 8, 11, and 12, the limitation does not apply.
In Lam Shee v. Bengzon, 93 Phil. 1065 (1953), the alien admitted that she had gained entrance into the Philippines fraudulently by making
use of the name of a Chinese resident-merchant other than that of her lawful husband. The Court, however, held that she could no longer be
deported "for the simple reason that more than 5 years had elapsed from the date of her admission."
The right of public respondents to deport petitioner has prescribed.
Petitioner was admitted and allowed entry into the Philippines on January 13, 1979 on the basis of false and misleading statements in her
application and in the other supporting documents submitted to the immigration authorities. Leonardo C. Banez first complained with the CID
on November 19, 1980 about the manner petitioner was admitted into the country and asked for her deportation (Rollo, pp. 77-78). After the
EDSA Revolution, he sent a follow-up letter to the CID requesting action on his 1980 letter-complaint (Rollo, p. 78).
Tolling the prescriptive period from November 19, 1980, when Leonardo C. Banez informed the CID of the illegal entry of petitioner into the
country, more than five years had elapsed before the issuance of the order of her deportation on September 27, 1990.
In their Comment, public respondents urged that what is barred under Section 37(b) is the deportation of an alien and claimed that what they
ordered was not the deportation of petitioner but merely the revocation of Section 13(a) which refers to the visa previously granted her (Rollo,
p. 102).
The "arrest" contemplated by Section 37(b) refers to the arrest for the purpose of carrying out an order for deportation and not the arrest prior
to proceedings to determine the right of the alien to stay in the country. When public respondents revoked the permanent residence visa
issued to petitioner, they, in effect, ordered her arrest and deportation as an overstaying alien.
WHEREFORE, the petition is GRANTED and the temporary restraining order issued on June 4, 1991 is MADE PERMANENT.
The Decision of the Board of Commissioners dated September 27, 1990 revoking the issuance of the permanent resident visa to petitioner
and the Resolution dated January 29, 1991 are REVERSED.
SO ORDERED.
Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan and Mendoza, JJ., concur.
Feliciano and Francisco, JJ., took no part.
Schneider v. Rusk - 377 U.S. 163 (1964)

Syllabus
Case
U.S. Supreme Court
Schneider v. Rusk, 377 U.S. 163 (1964)
Schneider v. Rusk
No. 368
Argued April 2, 1964
Decided May 18, 1964
377 U.S. 163
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Syllabus
Appellant, who was born in Germany, came to this country with her parents as a child and
acquired derivative American citizenship. She lived abroad since graduation from college,
became married to a German national, and, except for two visits back to this country, has lived in
Germany for the past eight years. The State Department denied her a passport, certifying that she
had lost her American citizenship under 352(a)(1) of the Immigration and Nationality Act of
1952, which provides that a naturalized citizen, with exceptions not material here, loses
citizenship by continuous residence for three years in the country of origin. She thereupon sued
in the District Court for a declaratory judgment that she is still an American citizen and has
appealed from that court's adverse decision.
Held by a majority of this Court, that 352(a)(1) is discriminatory, and therefore violative of due
process under the Fifth Amendment of the Constitution, since no restriction against the length of
foreign residence applies to native-born citizens, though some members of that majority believe
that Congress lacks constitutional power to effect involuntary divestiture of citizenship. Pp. 377
U. S. 164-169.
218 F.Supp. 302, reversed.
Page 377 U. S. 164
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
The Immigration and Nationality' Act of 1952, 66 Stat. 163, 269, 8 U.S.C. 1101, 1484,
provides by 352:
"(a) A person who has become a national by naturalization shall lose his nationality by --"
"(1) having a continuous residence for three years in the territory of a foreign state of which he
was formerly a national or in which the place of his birth is situated, except as provided in
section 353 of this title, [Footnote 1] whether such residence commenced before or after the
effective date of this Act. . . ."
(Italics added.)
Appellant, a German national by birth, came to this country with her parents when a small child,
acquired derivative American citizenship at the age of 16 through her mother, and, after
graduating from Smith College, went abroad for postgraduate work. In 1956, while in France,
she became engaged to a German national, returned here briefly, and departed for Germany,
where she married and where she has resided ever since. Since her marriage, she has returned to
this country on two occasions for visits. Her husband is a lawyer in Cologne, where appellant has
been living. Two of her four sons, born in Germany, are dual nationals, having acquired
American citizenship under 301(a)(7) of the 1952 Act. The American citizenship of the other
two turns on this case. In 1959, the United States denied her a passport, the State Department
certifying that she had lost her American citizenship under 352(a)(1), quoted above. Appellant
sued for a declaratory judgment that she still is an American citizen. The District Court held
against her, 218 F.Supp.
Page 377 U. S. 165
302, and the case is here on appeal. [Footnote 2] 375 U.S. 893.
The Solicitor General makes his case along the following lines.
Over a period of many years, this Government has been seriously concerned by special problems
engendered when naturalized citizens return for a long period to the countries of their former
nationalities. It is upon this premise that the argument derives that Congress, through its power
over foreign relations, has the power to deprive such citizens of their citizenship.
Other nations, it is said, frequently attempt to treat such persons as their own citizens, thus
embroiling the United States in conflicts when it attempts to afford them protection. It is argued
that expatriation is an alternative to withdrawal of diplomatic protection. It is also argued that
Congress reasonably can protect against the tendency of three years' residence in a naturalized
citizen's former homeland to weaken his or her allegiance to this country. The argument
continues that it is not invidious discrimination for Congress to treat such naturalized citizens
differently from the manner in which it treats native-born citizens, and that Congress has the
right to legislate with respect to the general class without regard to each factual violation. It is
finally argued that Congress here, unlike the situation in Kennedy v. Mendoza-Martnez, 372 U.
S. 144, was aiming only to regulate, and not to punish, and that what Congress did had been
deemed appropriate not only by this country, but by many others, and is in keeping with
traditional American concepts of citizenship.
We start from the premise that the rights of citizenship of the native born and of the naturalized
person are of the same dignity, and are coextensive. The only difference drawn by the
Constitution is that only the "natural born" citizen is eligible to be President. Art. II, 1.
Page 377 U. S. 166
While the rights of citizenship of the native born derive from 1 of the Fourteenth Amendment
and the rights of the naturalized citizen derive from satisfying, free of fraud, the requirements set
by Congress, the latter, apart from the exception noted,
"becomes a member of the society, possessing all the rights of a native citizen, and standing, in
the view of the constitution, on the footing of a native. The constitution does not authorize
Congress to enlarge or abridge those rights. The simple power of the national Legislature is to
prescribe a uniform rule of naturalization, and the exercise of this power exhausts it so far as
respects the individual."
Osborn v. Bank of United States, 9 Wheat. 738, 22 U. S. 827. And see Luria v. United States, 231
U. S. 9, 231 U. S. 22; United States v. MacIntosh, 283 U. S. 605, 283 U. S. 624; Knauer v.
United States, 328 U. S. 654, 328 U. S. 658.
Views of the Justices have varied when it comes to the problem of expatriation.
There is one view that the power of Congress to take away citizenship for activities of the citizen
is nonexistent absent expatriation by the voluntary renunciation of nationality and allegiance. See
Perez v. Brownell, 356 U. S. 44, 356 U. S. 79 (dissenting opinion of JUSTICES BLACK and
DOUGLAS); Trop v. Dulles, 356 U. S. 86 (opinion by CHIEF JUSTICE WARREN). That view
has not yet commanded a majority of the entire Court. Hence, we are faced with the issue
presented and decided in Perez v. Brownell, supra, i.e., whether the present Act violates due
process. That, in turn, comes to the question put in the following words in Perez:
"Is the means, withdrawal of citizenship, reasonably calculated to effect the end that is within the
power of Congress to achieve, the avoidance of embarrassment in the conduct of our foreign
relations . . . ?"
356 U.S. at 356 U. S. 60.
Page 377 U. S. 167
In that case, where an American citizen voted in a foreign election, the answer was in the
affirmative. In the present case, the question is whether the same answer should be given merely
because the naturalized citizen lived in her former homeland continuously for three years. We
think not.
Speaking of the provision in the Nationality Act of 1940, which was the predecessor of
352(a)(1), Chairman Dickstein of the House said that the bill would "relieve this country of the
responsibility of those who reside in foreign lands and only claim citizenship when it serves their
purpose." 86 Cong.Rec. 11944. And the Senate Report on the 1940 bill stated:
"These provisions for loss of nationality by residence abroad would greatly lessen the task of the
United States in protecting through the Department of State nominal citizens of this country who
are abroad but whose real interests, as shown by the conditions of their foreign stay, are not in
this country."
S.Rep. No. 2150, 76th Cong., 3d Sess., p. 4.
As stated by Judge Fahy, dissenting below, such legislation, touching as it does on the "most
precious right" of citizenship (Kennedy v. Mendoza-Martinez, 372 U.S. at 372 U. S. 159), would
have to be justified under the foreign relations power
"by some more urgent public necessity than substituting administrative convenience for the
individual right of which the citizen is deprived."
218 F.Supp. 302, 320.
In Kennedy v. Mendoza-Martinez, supra, a divided Court held that it was beyond the power of
Congress to deprive an American of his citizenship automatically and without any prior judicial
or administrative proceedings because he left the United States in time of war to evade or avoid
training or service in the Armed Forces. The Court held that it was an unconstitutional use of
Page 377 U. S. 168
congressional power because it took away citizenship as punishment for the offense of remaining
outside the country to avoid military service without, at the same time, affording him the
procedural safeguards granted by the Fifth and Sixth Amendments. Yet even the dissenters, who
felt that flight or absence to evade the duty of helping to defend the country in time of war
amounted to manifest nonallegiance, made a reservation. JUSTICE STEWART stated:
"Previous decisions have suggested that congressional exercise of the power to expatriate may be
subject to a further constitutional restriction -- a limitation upon the kind of activity which may
be made the basis of denationalization. Withdrawal of citizenship is a drastic measure. Moreover,
the power to expatriate endows government with authority to define and to limit the society
which it represents and to which it is responsible."
"This Court has never held that Congress' power to expatriate may be used unsparingly in every
area in which it has general power to act. Our previous decisions upholding involuntary
denationalization all involved conduct inconsistent with undiluted allegiance to this country."
372 U.S. at 372 U. S. 214.
This statute proceeds on the impermissible assumption that naturalized citizens as a class are less
reliable, and bear less allegiance to this country than do the native born. This is an assumption
that is impossible for us to make. Moreover, while the Fifth Amendment contains no equal
protection clause, it does forbid discrimination that is "so unjustifiable as to be violative of due
process." Bolling v. Sharpe, 347 U. S. 497, 347 U. S. 499. A native-born citizen is free to reside
abroad indefinitely without suffering loss of citizenship. The discrimination aimed at naturalized
citizens drastically limits their rights to live
Page 377 U. S. 169
and work abroad in a way that other citizens may. It creates indeed a second-class citizenship.
Living abroad, whether the citizen be naturalized or native born, is no badge of lack of
allegiance, and in no way evidences a voluntary renunciation of nationality and allegiance. It
may indeed be compelled by family, business, or other legitimate reasons.
Reversed.
MR. JUSTICE BRENNAN took no part in the decision of this case.
[Footnote 1]
The exceptions relate, inter alia, to residence abroad in the employment of the United States, and
are not relevant here.
[Footnote 2]
For other aspects of the case, see 372 U.S. 372 U. S. 224.
MR. JUSTICE CLARK, whom MR. JUSTICE HARLAN and MR. JUSTICE WHITE join,
dissenting.
The appellant, a derivative citizen since 1950, has voluntarily absented herself from the United
States for over a decade, living in her native Germany for the last eight years. In 1956, she
married a German citizen there; she has since borne four (German national) sons there, and now
says she has no intention to return to the United States.
I, too, sympathize with the appellant for the dilemma in which she has placed herself through her
marriage to a foreign citizen. But the policy of our country is involved here, not just her personal
consideration. I cannot say that Congress made her a second-class citizen by enacting 352(a)(1)
of the Immigration and Nationality Act of 1952, 66 Stat. 269, 8 U.S.C. 1484, placing a "badge
of lack of allegiance" upon her because she chose to live permanently abroad in her native land.
If there is such a citizenship or badge, appellant, not the Congress, created it through her own
actions. All that Congress did was face up to problems of the highest national importance by
authorizing expatriation, the only adequate remedy. Appellant, with her eyes open to the result,
chose by her action to renounce her derivative citizenship. Our cases have so interpreted such
action for half
Page 377 U. S. 170
a century. Mackenzie v. Hare, 239 U. S. 299 (1915). As applied to her, I cannot say, as does the
Court, that the command of Congress in 352(a)(1) is discriminatory, and therefore violative of
due process. Mackenzie decided just the contrary, upholding a statute which provided that,
although an American male did not suffer loss of citizenship during marriage to a foreign citizen,
an American woman did. Here, the appellant had statutory notice of the requirement; she
voluntarily acted in disregard of it for eight years, intends to continue to do so, and, in my view,
has therefore renounced her citizenship.
I
There is nothing new about the practice of expatriating naturalized citizens who voluntarily
return to their native lands to reside. It has a long-established and widely accepted history. Our
concept of citizenship was inherited from England, and, accordingly, was based on the principle
that rights conferred by naturalization were subject to the conditions reserved in the grant. See
Calvin's Case, 7 Co.Rep. 1 a, 77 Eng.Rep. 377 (1608). It was with this in mind that the Founders
incorporated Art. I, 8, cl. 4, into our Constitution. This clause grants Congress the power "[t]o
establish an uniform Rule of Naturalization. . . ." And, as Madison himself said, these words
meant that the
"Natl. Legislre. is to have the right of regulating naturalization, and can by virtue thereof fix
different periods of residence as conditions of enjoying different privileges of Citizenship. . . ."
II Farrand, The Records of the Federal Convention of 1787, 235 (1911). This was confirmed
during the debate in the First Congress on the first naturalization bill when Alexander White of
Virginia suggested that, if the residence requirement were stricken,
"another clause ought to be added, depriving [naturalized] persons of the privilege of citizenship,
who left the country and staid abroad for a given
Page 377 U. S. 171
length of time."
1 Annals of Congress 1110 (1790). James Madison answered:
"It may be a question of some nicety how far we can make our law to admit an alien to the right
of citizenship, step by step; but there is no doubt we may, and ought to require residence as an
essential."
Id. at 1112. The records show not only that it was the consensus of the members of the House
that step-by-step naturalization was permissible, but also that not a word was spoken against the
Madison statement that required residence was constitutionally allowed. This debate points up
the fact that distinctions between naturalized and native-born citizens were uppermost in the
minds of the Framers of the Constitution.
The right to renounce citizenship acquired at birth was a serious question during the War of
1812. In 1814, the Government, through Secretary of State Monroe, circulated an anonymous
pamphlet, A Treatise on Expatriation, which declared that "[e]xpatriation . . . is nothing more
than emigration, with an intention to settle permanently abroad." At 21. Since that time, it has
traditionally been our policy to withdraw diplomatic protection from naturalized citizens
domiciled in their native states. See, e.g., letter from Secretary of State Adams to Shaler (1818),
III Moore, Digest of International Law 735-736 (1906); letter from United States Minister to
Prussia Wheaton to Knoche (1840), S.Exec.Doc. No. 38, 36th Cong., 1st Sess., 6-7; letter from
Secretary of State Fish to Wing (1871), II Wharton, Digest of International Law of the United
States 361-362 (2d ed. 1887); communication from Secretary of State Hay to American
diplomats (1899), III Moore, supra, at 950. During all this period, the United States protected all
citizens abroad except naturalized ones residing in their
Page 377 U. S. 172
native lands. In 1868, the Bancroft treaty was negotiated with the North German Confederation.
It provided that each country would recognize naturalization of its native-born citizens by the
other country. It further provided that,
"[i]f a German naturalized in America renews his residence in North Germany, without the intent
to return to America, he shall be held to have renounced his naturalization . . . [and] [t]he intent
not to return may be held to exist when the person naturalized in the one country resides more
than two years in the other country."
15 Stat. 615, 616-617. The United States has similar rights under existing treaties with 20
countries. All of these rights will be stricken by the decision today.
In the late nineteenth century, the Government adopted a practice of informing naturalized
citizens residing in their native lands without intent to return that they had expatriated
themselves. The doctrine underlying this procedure has since been followed on several occasions
by commissions arbitrating the claims of American citizens against foreign governments. See III
Moore, History and Digest of International Arbitrations 2562-2572, 2579-2581 (1898).
As early as 1863, President Lincoln had suggested to Congress that it
"might be advisable to fix a limit beyond which no citizen of the United States residing abroad
may claim the interposition of his Government."
7 Messages and Papers of the Presidents 3382 (Richardson ed. 1897). However, no legislation
was enacted in the nineteenth century. In 1906, at the request of Congress, Secretary of State
Elihu Root appointed a "citizenship board" to consider this and other related matters. The
Board's report stated:
"Expressed renunciation of American citizenship is, however, extremely rare; but the class of
Americans who separate themselves from the United States
Page 377 U. S. 173
and live within the jurisdiction of foreign countries is becoming larger every year, and the
question of their protection causes increasing embarrassment to this Government in its relations
with foreign powers."
H.Doc. No. 326, 59th Cong., 2d Sess., 25.
The Board's recommendations led to the enactment of the Nationality Act of 1907, 34 Stat. 1228.
That Act included a rebuttable presumption that residence for two years in the foreign state from
which a naturalized American citizen came constituted a forfeiture of American citizenship. This
provision proved difficult to administer, and, in 1933, President Roosevelt appointed a cabinet
committee (the Secretary of State, the Attorney General and the Secretary of Labor) to review
the nationality laws. The committee issued an extensive report and draft statute which provided
for expatriation of naturalized citizens who resided continuously in their country of origin for
three years. This provision was incorporated into the Nationality Act of 1940, 54 Stat. 1137,
1170, and was carried over into the Immigration and Nationality Act of 1952, modified so as not
to require "uninterrupted physical presence in a foreign state. . . ." 66 Stat. 163, 170, 269.
II
This historical background points up the international difficulties which led to the adoption of the
policy announced in 352(a)(1). Residence of United States nationals abroad has always been
the source of much international friction, and the ruling today will expand these difficulties
tremendously. In 1962 alone, 919 persons were expatriated on the basis of residence in countries
of former nationality. The action of the Court in voiding these expatriations will cause no end of
difficulties, because thousands of persons living throughout the world will come under the broad
sweep of the Court's
Page 377 U. S. 174
decision. It is estimated that several thousand of these American expatriates reside in iron curtain
countries alone. Hearings before the Subcommittee on Constitutional Rights of the Senate
Committee on the Judiciary on S.Res. 49, 85th Cong., 1st Sess., 133. The protection of American
citizens abroad has always been a most sensitive matter, and continues to be so today. This is
especially true in Belgium, Greece, France, Iran, Israel, Switzerland and Turkey, because of their
refusal to recognize the expatriation of their nationals who acquire American citizenship. The
dissension that springs up in some of these areas adds immeasurably to the difficulty.
Nor is the United States alone in making residence abroad cause for expatriation. Although the
number of years of foreign residence varies from 2 to 10 years, 29 countries, including the
United Kingdom and 7 Commonwealth countries, expatriate naturalized citizens residing abroad.
Only four -- Czechoslovakia, Poland, Afghanistan, and Yugoslavia -- apply expatriation to both
native-born and naturalized citizens. Even the United Nations sanctions different treatment for
naturalized and native-born citizens; Article 7 of the United Nations Convention on the
Reduction of Statelessness provides that naturalized citizens who reside abroad for seven years
may be expatriated unless they declare their intent to retain citizenship.
III
The decisions of this Court have consistently approved the power of Congress to enact statutes
similar to the one here stricken down. Beginning with Mackenzie v. Hare, supra, where the
Court sustained a statute suspending during coverture the citizenship of a native-born American
woman who married a foreigner, the Court has invariably upheld expatriation when there is a
concurrence on the part of the citizen. In Mackenzie, exactly the
Page 377 U. S. 175
same argument was made that appellant urges here. Indeed, the Court uses the same opinion in
this case to strike down 352(a)(1) as was urged in Mackenzie, namely, Osborn v. Bank of the
United States, 9 Wheat. 738 (1824), where Chief Justice Marshall remarked: "The constitution
does not authorize Congress to enlarge or abridge . . . [the] rights" of citizens. At 22 U. S. 827.
But the Court in Mackenzie, without dissent on the merits, held:
"It may be conceded that a change of citizenship cannot be arbitrarily imposed, that is, imposed
without the concurrence of the citizen. The law in controversy does not have that feature. It deals
with a condition voluntarily entered into [marriage], with notice of the consequences. We concur
with counsel that citizenship is of tangible worth, and we sympathize with plaintiff in her desire
to retain it and in her earnest assertion of it. But there is involved more than personal
considerations. As we have seen, the legislation was urged by conditions of national moment. . . .
This is no arbitrary exercise of government. It is one which, regarding the international aspects,
judicial opinion has taken for granted would not only be valid, but demanded."
At 239 U. S. 311-312. And later, in Savorgnan v. United States, 338 U. S. 491 (1950), we
approved the doctrine of Mackenzie, supra. Six years ago, in Perez v. Brownell, 356 U. S. 44
(1958), we held that an American citizen voting in a foreign election expatriated himself under
401 of the Nationality Act of 1940, 54 Stat. 1137. We again cited Mackenzie, supra, with
approval, describing the central issue in expatriation cases
"as importing not only something less than complete and unswerving allegiance to the United
States, but
Page 377 U. S. 176
also elements of an allegiance to another country in some measure, at least, inconsistent with
American citizenship."
At 356 U. S. 61. The present case certainly meets this test. Appellant's prolonged residence in
her former homeland, the allegiance her husband and children owe to it, and her intention not to
return to the United States all show some measure of allegiance to Germany. At the very least,
these factors show much less than "unswerving allegiance to the United States," and are
"inconsistent with American citizenship." Indeed, in this respect, the instant case is much
stronger than Mackenzie, supra.
The Court bases its decision on the fact that 352(a)(1) applies only to naturalized, not native-
born, citizens. It says this results in a discrimination in violation of the Due Process Clause of the
Fifth Amendment. I think that, in so doing, the Court overspeaks itself. If Congress has the
power to expatriate all citizens, as the Court's position implies, it would certainly have like
power to enact a more narrowly confined statute aimed only at those citizens whose presence in
their native homelands can embroil the United States in conflict with such countries. As the
history shows, the naturalized citizen who returns to his homeland is often the cause of the
difficulties. This fact is recognized by the policy of this country and of 25 others, and by a
United Nations Convention as well. Through 352(a)(1), Congress has restricted its remedy to
correction of the precise situations which have caused the problem. In adopting the classification
"naturalized citizen," has the Congress acted with reason? Many times this Court has upheld
classifications of more significance. Hirabayashi v. United States, 320 U. S. 81 (1943) (curfew
imposed on persons of Japanese ancestry, regardless of citizenship, in military areas during war);
Heim v. McCall, 239 U. S. 175 (1915) (aliens not employable on public works projects); Terrace
Page 377 U. S. 177
v. Thompson, 263 U. S. 197 (1923), and Porterfield v. Webb, 263 U. S. 225 (1923) (aliens who
were ineligible for citizenship not permitted to hold land for farming or other purposes); Ohio ex
rel. Clarke v. Deckebach, 274 U. S. 392 (1927) (aliens not permitted to conduct pool and billiard
rooms). As in Mackenzie v. Hare, supra, these cases were sustained on the basis that the
classification was reasonably devised to meet a demonstrated need. Distinctions between native-
born and naturalized citizens in connection with foreign residence are drawn in the Constitution
itself. Only a native-born may become President, Art. II, 1. A naturalized citizen must wait
seven years after he obtains his citizenship before he is eligible to sit in the House, Art. I, 2.
For the Senate, the waiting period is nine years, Art. I, 3. Do these provisions create a second-
class citizenship, or place a "badge of lack of allegiance" on those citizens? It has never been
thought so until today. As I have shown, in the debate in the First Congress on the first
naturalization bill, it was proposed to expatriate naturalized citizens who resided abroad. During
the entire nineteenth century, only naturalized citizens were, as a general rule, expatriated on the
grounds of foreign residence, and, for nearly 100 years, our naturalization treaties have contained
provisions authorizing the expatriation of naturalized citizens residing in their native lands.
Indeed, during the consideration of the 1952 Act, not a single witness specifically objected to
352(a)(1). Even the Americans for Democratic Action suggested that it was a reasonable
regulation. It is a little late for the Court to decide in the face of this mountain of evidence that
the section has suddenly become so invidious that it must be stricken as arbitrary under the Due
Process Clause.
Kennedy v. Mendoza-Martinez, 372 U. S. 144 (1963), is not apposite. There, expatriation for the
offense of remaining outside the country to avoid military service
Page 377 U. S. 178
was held to constitute punishment without a criminal trial. The majority here indicates that a
reservation made by MR. JUSTICE STEWART in his dissent in that case supports its present
view. I think not. Indeed, my Brother STEWART's conclusion that our cases "upholding
involuntary denationalization all involved conduct inconsistent with undiluted allegiance to this
country," at 372 U. S. 214, fits this case like a glove. Here appellant has been away from the
country for 10 years, has married a foreign citizen, has continuously lived with him in her native
land for eight years, has borne four sons who are German nationals, and admits that she has no
intention to return to this country. She wishes to retain her citizenship on a standby basis for her
own benefit in the event of trouble. There is no constitutional necessity for Congress to accede to
her wish.
I dissent.

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U.S. Supreme Court
TROP v. DULLES, 356 U.S. 86 (1958)
356 U.S. 86
TROP v. DULLES, SECRETARY OF STATE, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT.
No. 70.
Argued May 2, 1957. Restored to the calendar for reargument June 24, 1957. Reargued
October 28-29, 1957.
Decided March 31, 1958.
At least as applied in this case to a native-born citizen of the United States who did not
voluntarily relinquish or abandon his citizenship or become involved in any way with a foreign
nation, 401 (g) of the Nationality Act of 1940, as amended, which provides that a citizen "shall
lose his nationality" by "deserting the military or naval forces of the United States in time of war,
provided he is convicted thereof by court martial and as a result of such conviction is dismissed
or dishonorably discharged from the service," is unconstitutional. Pp. 87-114.
239 F.2d 527, reversed.
THE CHIEF JUSTICE, in an opinion joined by MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS and MR. JUSTICE WHITTAKER, concluded that:
1. Citizenship is not subject to the general powers of the National Government and therefore
cannot be divested in the exercise of those powers. Pp. 91-93.
2. Even if citizenship could be divested in the exercise of some governmental power, 401 (g)
violates the Eighth Amendment, because it is penal in nature and prescribes a "cruel and
unusual" punishment. Pp. 93-104.
MR. JUSTICE BLACK, in an opinion joined by MR. JUSTICE DOUGLAS, concurred in the opinion of THE
CHIEF JUSTICE and expressed the view that, even if citizenship could be involuntarily divested, the
power to denationalize may not be placed in the hands of military authorities. Pp. 104-105.
MR. JUSTICE BRENNAN, while agreeing with the Court, in Perez v. Brownell, ante, p. 44, that
there is no constitutional infirmity in 401 (e) which expatriates the citizen who votes in a foreign
political election, concluded in this case that 401 (g) lies beyond the power of Congress to enact.
Pp. 105-114. [356 U.S. 86, 87]
For dissenting opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE BURTON,
MR. JUSTICE CLARK and MR. JUSTICE HARLAN, see post, p. 114.
Osmond K. Fraenkel argued the cause and filed the briefs for petitioner.
Oscar H. Davis argued the cause for respondents on the original argument, and Solicitor General
Rankin on the reargument. With them on the briefs were Warren Olney, III, then Assistant
Attorney General, and J. F. Bishop. Beatrice Rosenberg was also with them on the brief on the
reargument.
MR. CHIEF JUSTICE WARREN announced the judgment of the Court and delivered an
opinion, in which MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and MR. JUSTICE
WHITTAKER join.
The petitioner in this case, a native-born American, is declared to have lost his United States
citizenship and become stateless by reason of his conviction by court-martial for wartime
desertion. As in Perez v. Brownell, ante, p. 44, the issue before us is whether this forfeiture of
citizenship comports with the Constitution.
The facts are not in dispute. In 1944 petitioner was a private in the United States Army, serving
in French Morocco. On May 22, he escaped from a stockade at Casablanca, where he had been
confined following a previous breach of discipline. The next day petitioner and a companion
were walking along a road towards Rabat, in the general direction back to Casablanca, when an
Army truck approached and stopped. A witness testified that petitioner boarded the truck
willingly and that no words were spoken. In Rabat petitioner was turned over to military police.
Thus ended petitioner's "desertion." He had been gone less than a day and had willingly
surrendered to an officer on an Army vehicle while he was walking back towards his base. He
testified that at the [356 U.S. 86, 88] time he and his companion were picked up by the Army
truck, "we had decided to return to the stockade. The going was tough. We had no money to
speak of, and at the time we were on foot and we were getting cold and hungry." A general
court-martial convicted petitioner of desertion and sentenced him to three years at hard labor,
forfeiture of all pay and allowances and a dishonorable discharge.
In 1952 petitioner applied for a passport. His application was denied on the ground that under the
provisions of Section 401 (g) of the Nationality Act of 1940, as amended, 1 he had lost his
citizenship by reason of his conviction and dishonorable discharge for wartime desertion. In
1955 petitioner commenced this action in the District Court, seeking a declaratory judgment that
he is a citizen. The Government's motion for summary judgment was granted, and the Court of
Appeals for the Second Circuit affirmed, Chief Judge Clark dissenting. 239 F.2d 527. We
granted certiorari. 352 U.S. 1023 . [356 U.S. 86, 89]
Section 401 (g), the statute that decrees the forfeiture of this petitioner's citizenship, is based
directly on a Civil War statute, which provided that a deserter would lose his "rights of
citizenship." 2 The meaning of this phrase was not clear. 3 When the 1940 codification and
revision of the nationality laws was prepared, the Civil War statute was amended to make it
certain that what a convicted deserter would lose was nationality itself. 4 In 1944 the [356 U.S. 86,
90] statute was further amended to provide that a convicted deserter would lose his citizenship
only if he was dismissed from the service or dishonorably discharged. 5 At the same time it was
provided that citizenship could be regained if the deserter was restored to active duty in wartime
with the permission of the military authorities.
Though these amendments were added to ameliorate the harshness of the statute, 6 their
combined effect produces a result that poses far graver problems than the ones that were sought
to be solved. Section 401 (g) as amended now gives the military authorities complete discretion
to decide who among convicted deserters shall continue to be Americans and who shall be
stateless. By deciding whether to issue and execute a dishonorable discharge and whether to
allow a deserter to re-enter the armed forces, the military becomes the arbiter of citizenship. And
the domain given to it by Congress is not as narrow as might be supposed. Though the crime of
desertion is one of the most serious in military law, it is by no means a rare event for a soldier to
be convicted of this crime. The elements of desertion are simply absence from duty plus the
intention not to return. 7 Into this [356 U.S. 86, 91] category falls a great range of conduct, which
may be prompted by a variety of motives - fear, laziness, hysteria or any emotional imbalance.
The offense may occur not only in combat but also in training camps for draftees in this country.
8 The Solicitor General informed the Court that during World War II, according to Army
estimates, approximately 21,000 soldiers and airmen were convicted of desertion and given
dishonorable discharges by the sentencing courts-martial and that about 7,000 of these were
actually separated from the service and thus rendered stateless when the reviewing authorities
refused to remit their dishonorable discharges. Over this group of men, enlarged by whatever the
corresponding figures may be for the Navy and Marines, the military has been given the power
to grant or withhold citizenship. And the number of youths subject to this power could easily be
enlarged simply by expanding the statute to cover crimes other than desertion. For instance, a
dishonorable discharge itself might in the future be declared to be sufficient to justify forfeiture
of citizenship.
Three times in the past three years we have been confronted with cases presenting important
questions bearing on the proper relationship between civilian and military authority in this
country. 9 A statute such as Section 401 (g) raises serious issues in this area, but in our view of
this case it is unnecessary to deal with those problems. We conclude that the judgment in this
case must be reversed for the following reasons.
I.
In Perez v. Brownell, supra, I expressed the principles that I believe govern the constitutional
status of United [356 U.S. 86, 92] States citizenship. It is my conviction that citizenship is not
subject to the general powers of the National Government and therefore cannot be divested in the
exercise of those powers. The right may be voluntarily relinquished or abandoned either by
express language or by language and conduct that show a renunciation of citizenship.
Under these principles, this petitioner has not lost his citizenship. Desertion in wartime, though it
may merit the ultimate penalty, does not necessarily signify allegiance to a foreign state. Section
401 (g) is not limited to cases of desertion to the enemy, and there is no such element in this
case. This soldier committed a crime for which he should be and was punished, but he did not
involve himself in any way with a foreign state. There was no dilution of his allegiance to this
country. The fact that the desertion occurred on foreign soil is of no consequence. The Solicitor
General acknowledged that forfeiture of citizenship would have occurred if the entire incident
had transpired in this country.
Citizenship is not a license that expires upon misbehavior. The duties of citizenship are
numerous, and the discharge of many of these obligations is essential to the security and well-
being of the Nation. The citizen who fails to pay his taxes or to abide by the laws safeguarding
the integrity of elections deals a dangerous blow to his country. But could a citizen be deprived
of his nationality for evading these basic responsibilities of citizenship? In time of war the
citizen's duties include not only the military defense of the Nation but also full participation in
the manifold activities of the civilian ranks. Failure to perform any of these obligations may
cause the Nation serious injury, and, in appropriate circumstances, the punishing power is
available to deal with derelictions of duty. But citizenship is not lost every time a duty of
citizenship is shirked. And the deprivation of citizenship [356 U.S. 86, 93] is not a weapon that the
Government may use to express its displeasure at a citizen's conduct, however reprehensible that
conduct may be. As long as a person does not voluntarily renounce or abandon his citizenship,
and this petitioner has done neither, I believe his fundamental right of citizenship is secure. On
this ground alone the judgment in this case should be reversed.
II.
Since a majority of the Court concluded in Perez v. Brownell that citizenship may be divested in
the exercise of some governmental power, I deem it appropriate to state additionally why the
action taken in this case exceeds constitutional limits, even under the majority's decision in
Perez. The Court concluded in Perez that citizenship could be divested in the exercise of the
foreign affairs power. In this case, it is urged that the war power is adequate to support the
divestment of citizenship. But there is a vital difference between the two statutes that purport to
implement these powers by decreeing loss of citizenship. The statute in Perez decreed loss of
citizenship - so the majority concluded - to eliminate those international problems that were
thought to arise by reason of a citizen's having voted in a foreign election. The statute in this
case, however, is entirely different. Section 401 (g) decrees loss of citizenship for those found
guilty of the crime of desertion. It is essentially like Section 401 (j) of the Nationality Act,
decreeing loss of citizenship for evading the draft by remaining outside the United States. 10
This provision [356 U.S. 86, 94] was also before the Court in Perez, but the majority declined to
consider its validity. While Section 401 (j) decrees loss of citizenship without providing any
semblance of procedural due process whereby the guilt of the draft evader may be determined
before the sanction is imposed, Section 401 (g), the provision in this case, accords the accused
deserter at least the safeguards of an adjudication of guilt by a court-martial.
The constitutional question posed by Section 401 (g) would appear to be whether or not
denationalization may be inflicted as a punishment, even assuming that citizenship may be
divested pursuant to some governmental power. But the Government contends that this statute
does not impose a penalty and that constitutional limitations on the power of Congress to punish
are therefore inapplicable. We are told this is so because a committee of Cabinet members, in
recommending this legislation to the Congress, said it "technically is not a penal law." 11 How
simple would be the tasks of constitutional adjudication and of law generally if specific problems
could be solved by inspection of the labels pasted on them! Manifestly the issue of whether
Section 401 (g) is a penal law cannot be thus determined. Of course it is relevant to know the
classification employed by the Cabinet Committee that played such an important role in the
preparation of the Nationality Act of 1940. But it is equally relevant to know that this very
committee acknowledged that Section 401 (g) was based on the provisions of the 1865 Civil War
statute, which the committee itself termed "distinctly penal in character." 12 Furthermore, the
1865 [356 U.S. 86, 95] statute states in terms that deprivation of the rights of citizenship is "in
addition to the other lawful penalties of the crime of desertion . . . ." 13 And certainly it is
relevant to know that the reason given by the Senate Committee on Immigration as to why loss
of nationality under Section 401 (g) can follow desertion only after conviction by court-martial
was "because the penalty is so drastic." 14 Doubtless even a clear legislative classification of a
statute as "non-penal" would not alter the fundamental nature of a plainly penal statute. 15 With
regard to Section 401 (g) the fact is that the views of the Cabinet Committee and of the Congress
itself as to the nature of the statute are equivocal, and cannot possibly provide the answer to our
inquiry. Determination of whether this statute is a penal law requires careful consideration.
In form Section 401 (g) appears to be a regulation of nationality. The statute deals initially with
the status of nationality and then specifies the conduct that will result in loss of that status. But
surely form cannot provide the answer to this inquiry. A statute providing that "a person shall
lose his liberty by committing bank robbery," though in form a regulation of liberty, would
nonetheless be penal. Nor would its penal effect be altered by labeling it a regulation of banks or
by arguing that there is a rational connection between safeguarding banks and imprisoning bank
robbers. The inquiry must be directed to substance.
This Court has been called upon to decide whether or not various statutes were penal ever since
1798. Calder v. Bull, 3 Dall. 386. Each time a statute has been challenged as being in conflict
with the constitutional prohibitions against bills of attainder and ex post facto [356 U.S. 86,
96] laws, 16 it has been necessary to determine whether a penal law was involved, because these
provisions apply only to statutes imposing penalties. 17 In deciding whether or not a law is
penal, this Court has generally based its determination upon the purpose of the statute. 18 If the
statute imposes a disability for the purposes of punishment - that is, to reprimand the wrongdoer,
to deter others, etc. - it has been considered penal. 19 But a statute has been considered nonpenal
if it imposes a disability, not to punish, but to accomplish some other legitimate governmental
purpose. 20 The Court has recognized that any statute decreeing some adversity as a
consequence of certain conduct may have both a penal and a nonpenal effect. The controlling
nature of such statutes normally depends on the evident purpose of the legislature. The point may
be illustrated by the situation of an ordinary felon. A person who commits a bank robbery, for
instance, loses his right to liberty and often his right to vote. 21 If, in the exercise of the power to
protect banks, both sanctions were imposed for the purpose of punishing bank robbers, the
statutes authorizing both disabilities would be penal. But because the purpose of [356 U.S. 86,
97] the latter statute is to designate a reasonable ground of eligibility for voting, this law is
sustained as a nonpenal exercise of the power to regulate the franchise. 22
The same reasoning applies to Section 401 (g). The purpose of taking away citizenship from a
convicted deserter is simply to punish him. There is no other legitimate purpose that the statute
could serve. Denationalization in this case is not even claimed to be a means of solving
international problems, as was argued in Perez. Here the purpose is punishment, and therefore
the statute is a penal law.
It is urged that this statute is not a penal law but a regulatory provision authorized by the war
power. It cannot be denied that Congress has power to prescribe rules governing the proper
performance of military obligations, of which perhaps the most significant is the performance of
one's duty when hazardous or important service is required. But a statute that prescribes the
consequence that will befall one who fails to abide by these regulatory provisions is a penal law.
Plainly legislation prescribing imprisonment for the crime of desertion is penal in nature. If loss
of citizenship is substituted for imprisonment, it cannot fairly be said that the use of this
particular sanction transforms the fundamental nature of the statute. In fact, a dishonorable
discharge with consequent loss of citizenship might be the only punishment meted out by a
court-martial. During World War II the threat of this punishment was explicitly communicated
by the Army to soldiers in the field. 23 If this statute taking away citizenship is a congressional
exercise of the war power, then it cannot rationally be treated other than as a penal law, because
it imposes the sanction of denationalization [356 U.S. 86, 98] for the purpose of punishing
transgression of a standard of conduct prescribed in the exercise of that power.
The Government argues that the sanction of denationalization imposed by Section 401 (g) is not
a penalty because deportation has not been so considered by this Court. While deportation is
undoubtedly a harsh sanction that has a severe penal effect, this Court has in the past sustained
deportation as an exercise of the sovereign's power to determine the conditions upon which an
alien may reside in this country. 24 For example, the statute 25 authorizing deportation of an
alien convicted under the 1917 Espionage Act 26 was viewed, not as designed to punish him for
the crime of espionage, but as an implementation of the sovereign power to exclude, from which
the deporting power is derived. Mahler v. Eby, 264 U.S. 32 . This view of deportation may be
highly fictional, but even if its validity is conceded, it is wholly inapplicable to this case. No one
contends that the Government has, in addition to the power to exclude all aliens, a sweeping
power to denationalize all citizens. Nor does comparison to denaturalization eliminate the penal
effect of denationalization in this case. Denaturalization is not imposed to penalize the alien for
having falsified his application for citizenship; if it were, it would be a punishment. Rather, it is
imposed in the exercise of the power to make rules for the naturalization of aliens. 27 In short,
the fact that deportation and denaturalization for fraudulent procurement of citizenship may be
imposed for purposes other than punishment affords no [356 U.S. 86, 99] basis for saying that in
this case denationalization is not a punishment.
Section 401 (g) is a penal law, and we must face the question whether the Constitution permits
the Congress to take away citizenship as a punishment for crime. If it is assumed that the power
of Congress extends to divestment of citizenship, the problem still remains as to this statute
whether denationalization is a cruel and unusual punishment within the meaning of the Eighth
Amendment. 28 Since wartime desertion is punishable by death, there can be no argument that
the penalty of denationalization is excessive in relation to the gravity of the crime. The question
is whether this penalty subjects the individual to a fate forbidden by the principle of civilized
treatment guaranteed by the Eighth Amendment.
At the outset, let us put to one side the death penalty as an index of the constitutional limit on
punishment. Whatever the arguments may be against capital punishment, both on moral grounds
and in terms of accomplishing the purposes of punishment - and they are forceful - the death
penalty has been employed throughout our history, and, in a day when it is still widely accepted,
it cannot be said to violate the constitutional concept of cruelty. But it is equally plain that the
existence of the death penalty is not a license to the Government to devise any punishment short
of death within the limit of its imagination.
The exact scope of the constitutional phrase "cruel and unusual" has not been detailed by this
Court. 29 But the [356 U.S. 86, 100] basic policy reflected in these words is firmly established in
the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken
directly from the English Declaration of Rights of 1688, 30 and the principle it represents can be
traced back to the Magna Carta. 31 The basic concept underlying the Eighth Amendment is
nothing less than the dignity of man. While the State has the power to punish, the Amendment
stands to assure that this power be exercised within the limits of civilized standards. Fines,
imprisonment and even execution may be imposed depending upon the enormity of the crime,
but any technique outside the bounds of these traditional penalties is constitutionally suspect.
This Court has had little occasion to give precise content to the Eighth Amendment, and, in an
enlightened democracy such as ours, this is not surprising. But when the Court was confronted
with a punishment of 12 years in irons at hard and painful labor imposed for the crime of
falsifying public records, it did not hesitate to declare that the penalty was cruel in its
excessiveness and unusual in its character. Weems v. United States, 217 U.S. 349 . The Court
recognized in that case that the words of the Amendment are not precise, 32 and that their [356
U.S. 86, 101] scope is not static. The Amendment must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society.
We believe, as did Chief Judge Clark in the court below, 33 that use of denationalization as a
punishment is barred by the Eighth Amendment. There may be involved no physical
mistreatment, no primitive torture. There is instead the total destruction of the individual's status
in organized society. It is a form of punishment more primitive than torture, for it destroys for
the individual the political existence that was centuries in the development. The punishment
strips the citizen of his status in the national and international political community. His very
existence is at the sufferance of the country in which he happens to find himself. While any one
country may accord him some rights, and presumably as long as he remained in this country he
would enjoy the limited rights of an alien, no country need do so because he is stateless.
Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination
[356 U.S. 86, 102] at any time by reason of deportation. 34 In short, the expatriate has lost the right
to have rights.
This punishment is offensive to cardinal principles for which the Constitution stands. It subjects
the individual to a fate of ever-increasing fear and distress. He knows not what discriminations
may be established against him, what proscriptions may be directed against him, and when and
for what cause his existence in his native land may be terminated. He may be subject to
banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in
the international community of democracies. 35 It is no answer to suggest that all the disastrous
consequences of this fate may not be brought to bear on a stateless person. The threat makes the
punishment obnoxious. 36
The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed
as punishment for crime. It is true that several countries prescribe expatriation in the event that
their nationals engage in conduct in derogation of native allegiance. 37 Even statutes of this sort
are generally applicable primarily [356 U.S. 86, 103] to naturalized citizens. But use of
denationalization as punishment for crime is an entirely different matter. The United Nations'
survey of the nationality laws of 84 nations of the world reveals that only two countries, the
Philippines and Turkey, impose denationalization as a penalty for desertion. 38 In this country
the Eighth Amendment forbids this to be done.
In concluding as we do that the Eighth Amendment forbids Congress to punish by taking away
citizenship, we are mindful of the gravity of the issue inevitably raised whenever the
constitutionality of an Act of the National Legislature is challenged. No member of the Court
believes that in this case the statute before us can be construed to avoid the issue of
constitutionality. That issue confronts us, and the task of resolving it is inescapably ours. This
task requires the exercise of judgment, not the reliance upon personal preferences. Courts must
not consider the wisdom of statutes but neither can they sanction as being merely unwise that
which the Constitution forbids.
We are oath-bound to defend the Constitution. This obligation requires that congressional
enactments be judged by the standards of the Constitution. The Judiciary has the duty of
implementing the constitutional safeguards that protect individual rights. When the Government
acts to take away the fundamental right of citizenship, the safeguards of the Constitution should
be examined with special diligence.
The provisions of the Constitution are not time-worn adages or hollow shibboleths. They are
vital, living principles that authorize and limit governmental powers in our Nation. They are the
rules of government. When the constitutionality of an Act of Congress is challenged in this
Court, we must apply those rules. If we [356 U.S. 86, 104] do not, the words of the Constitution
become little more than good advice.
When it appears that an Act of Congress conflicts with one of these provisions, we have no
choice but to enforce the paramount commands of the Constitution. We are sworn to do no less.
We cannot push back the limits of the Constitution merely to accommodate challenged
legislation. We must apply those limits as the Constitution prescribes them, bearing in mind both
the broad scope of legislative discretion and the ultimate responsibility of constitutional
adjudication. We do well to approach this task cautiously, as all our predecessors have
counseled. But the ordeal of judgment cannot be shirked. In some 81 instances since this Court
was established it has determined that congressional action exceeded the bounds of the
Constitution. It is so in this case.
The judgment of the Court of Appeals for the Second Circuit is reversed and the cause is
remanded to the District Court for appropriate proceedings.
Reversed and remanded.
Footnotes
[ Footnote 1 ] 54 Stat. 1168, 1169, as amended, 58 Stat. 4, 8 U.S.C. 1481 (a) (8): "A person who is a
national of the United States, whether by birth or naturalization, shall lose his nationality by: . . . . . "(g)
Deserting the military or naval forces of the United States in time of war, provided he is convicted
thereof by court martial and as the result of such conviction is dismissed or dishonorably discharged
from the service of such military or naval forces: Provided. That notwithstanding loss of nationality or
citizenship or civil or political rights under the terms of this or previous Acts by reason of desertion
committed in time of war, restoration to active duty with such military or naval forces in time of war or
the reenlistment or induction of such a person in time of war with permission of competent military or
naval authority, prior or subsequent to the effective date of this Act, shall be deemed to have the
immediate effect of restoring such nationality or citizenship and all civil and political rights heretofore or
hereafter so lost and of removing all civil and political disabilities resulting therefrom . . . ."
[ Footnote 2 ] Act of March 3, 1865, 13 Stat. 487, 490.
[ Footnote 3 ] See Roche, The Loss of American Nationality - The Development of Statutory
Expatriation, 99 U. of Pa. L. Rev. 25, 60-62. Administratively the phrase "rights of citizenship"
was apparently taken to mean "citizenship." See Foreign Relations 1873, H. R. Exec. Doc. No. 1,
43d Cong., 1st Sess., Pt. 1, Vol. II, p. 1187 (view of Secretary of State Fish); H. R. Doc. No. 326,
59th Cong., 2d Sess. 159 (State Department Board); Hearings, before the House Committee on
Immigration and Naturalization on H. R. 6127, 76th Cong., 1st Sess. 132-133 (testimony of
Richard Flournoy, State Department representative).
[ Footnote 4 ] Hearings, at 133. But it is not entirely clear, however, that the Congress fully
appreciated the fact that Section 401 (g) rendered a convicted deserter stateless. In this regard,
the following colloquy, which occurred during hearings in 1943 before the House Committee on
Immigration and Naturalization between Congressmen Allen and Kearney, members of the
Committee, and Edward J. Shaughnessy, then Deputy Commissioner of Immigration, is
illuminating: "Mr. ALLEN. If he is convicted [of desertion] by court martial in time of war, he
loses his citizenship? "Mr. SHAUGHNESSY. That is correct. "Mr. ALLEN. In other words, that
is the same thing as in our civil courts. When one is convicted of a felony and is sent to the
penitentiary, one loses his citizenship. "Mr. SHAUGHNESSY. He loses his rights of citizenship.
"Mr. KEARNEY. There is a difference between losing citizenship and losing civil rights. "Mr.
SHAUGHNESSY. He loses his civil rights, not his citizenship. Here he loses his citizenship.
"Mr. ALLEN. He loses his rights derived from citizenship. [356 U.S. 86, 90] "Mr.
SHAUGHNESSY. Yes; it almost amounts to the same thing. It is a technical difference. "Mr.
ALLEN. He is still an American citizen, but he has no rights. "Mr. SHAUGHNESSY. No rights
of citizenship." Hearings before the House Committee on Immigration and Naturalization on H.
R. 2207, 78th Cong., 1st Sess. 2-3. See also id., at 7: "Mr. ELMER. Is it not true that this loss of
citizenship for desertion is a State matter and that the Government has nothing to do with it?"
[ Footnote 5 ] Act of January 20, 1944, 58 Stat. 4.
[ Footnote 6 ] See S. Rep. No. 382, 78th Cong., 1st Sess. 1, 3; H. R. Rep. No. 302, 78th Cong.,
1st Sess. 1; 89 Cong. Rec. 3241, 10135.
[ Footnote 7 ] Articles of War 58, 41 Stat. 800; Article 85, Uniform Code of Military Justice, 10
U.S.C. (Supp. V) 885; Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 637.
[ Footnote 8 ] The Solicitor General stated in his argument that 401 (g) would apply to desertion
from such camps.
[ Footnote 9 ] United States ex rel. Toth v. Quarles, 350 U.S. 11 ; Reid v. Covert, 354 U.S. 1 ;
Harmon v. Brucker, 355 U.S. 579 .
[ Footnote 10 ] 54 Stat. 1168, as amended, 58 Stat. 746, 8 U.S.C. 1481 (a) (10): "A person who is
a national of the United States, whether by birth or naturalization, shall lose his nationality by: . .
. . . "(j) Departing from or remaining outside of the jurisdiction of the United States in time of
war or during a period declared by the [356 U.S. 86, 94] President to be a period of national
emergency for the purpose of evading or avoiding training and service in the land or naval forces
of the United States."
[ Footnote 11 ] Codification of the Nationality Laws of the United States, H. R. Comm. Print, Pt.
1, 76th Cong., 1st Sess. 68.
[ Footnote 12 ] Ibid.
[ Footnote 13 ] Act of March 3, 1865, 13 Stat. 487.
[ Footnote 14 ] S. Rep. No. 2150, 76th Cong., 3d Sess. 3.
[ Footnote 15 ] United States v. Constantine, 296 U.S. 287, 294 ; United States v. La Franca, 282
U.S. 568, 572 .
[ Footnote 16 ] U.S. Const., Art. I, 9, cl. 3; 10, cl. 1.
[ Footnote 17 ] United States v. Lovett, 328 U.S. 303 ; Calder v. Bull, 3 Dall. 386.
[ Footnote 18 ] Of course, the severity of the disability imposed as well as all the circumstances
surrounding the legislative enactment is relevant to this decision. See, generally, Wormuth,
Legislative Disqualifications as Bills of Attainder, 4 Vand. L. Rev. 603, 608-610: 64 Yale L. J.
712, 722-724.
[ Footnote 19 ] E. g., United States v. Lovett, supra; Pierce v. Carskadon, 16 Wall. 234; Ex parte
Garland, 4 Wall. 333; Cummings v. Missouri, 4 Wall. 277.
[ Footnote 20 ] E. g., Mahler v. Eby, 264 U.S. 32 ; Hawker v. New York, 170 U.S. 189 ; Davis v.
Beason, 133 U.S. 333 ; Murphy v. Ramsey, 114 U.S. 15 .
[ Footnote 21 ] See Gathings, Loss of Citizenship and Civil Rights for Conviction of Crime, 43
Am. Pol. Sci. Rev. 1228.
[ Footnote 22 ] Cf. Davis v. Beason, supra; Murphy v. Ramsey, supra.
[ Footnote 23 ] See War Department Circular No. 273, 1942, Compilation of War Department
General Orders, Bulletins and Circulars (Government Printing Office 1943) 343.
[ Footnote 24 ] Mahler v. Eby, supra; Bugajewitz v. Adams, 228 U.S. 585 ; Fong Yue Ting v.
United States, 149 U.S. 698 .
[ Footnote 25 ] Act of May 10, 1920, 41 Stat. 593.
[ Footnote 26 ] Act of June 15, 1917, 40 Stat. 217.
[ Footnote 27 ] See, e. g., Baumgartner v. United States, 322 U.S. 665 ; Schneiderman v. United
States, 320 U.S. 118 .
[ Footnote 28 ] U.S. Const., Amend. VIII: "Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted."
[ Footnote 29 ] See Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 ; Weems v. United
States, 217 U.S. 349 ; Howard v. Fleming, 191 U.S. 126 ; O'Neil v. Vermont, 144 U.S. 323 ; In
re Kemmler, 136 U.S. 436 ; Wilkerson v. Utah, 99 U.S. 130 .
[ Footnote 30 ] 1 Wm. & Mary, 2d Sess. (1689), c. 2.
[ Footnote 31 ] See 34 Minn. L. Rev. 134; 4 Vand. L. Rev. 680.
[ Footnote 32 ] Whether the word "unusual" has any qualitative meaning different from "cruel" is
not clear. On the few occasions this Court has had to consider the meaning of the phrase, precise
distinctions between cruelty and unusualness do not seem to have been drawn. See Weems v.
United States, supra; O'Neil v. Vermont, supra; Wilkerson v. Utah, supra. These cases indicate
that the Court simply examines the particular punishment involved in light of the basic
prohibition against inhuman treatment, without regard to any subtleties of meaning that might be
latent in the word "unusual." But cf. In re Kemmler, supra, at 443; United States ex rel.
Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 430 (Brandeis, J.,
dissenting). If the word "unusual" is to have any meaning [356 U.S. 86, 101] apart from the word
"cruel," however, the meaning should be the ordinary one, signifying something different from
that which is generally done. Denationalization as a punishment certainly meets this test. It was
never explicitly sanctioned by this Government until 1940 and never tested against the
Constitution until this day.
[ Footnote 33 ] "Plaintiff-appellant has cited to us and obviously relied on the masterful analysis
of expatriation legislation set forth in the Comment, The Expatriation Act of 1954, 64 Yale L. J.
1164, 1189-1199. I agree with the author's documented conclusions therein that punitive
expatriation of persons with no other nationality constitutes cruel and unusual punishment and is
invalid as such. Since I doubt if I can add to the persuasive arguments there made, I shall merely
incorporate by reference. In my faith, the American concept of man's dignity does not comport
with making even those we would punish completely `stateless' - fair game for the despoiler at
home and the oppressor abroad, if indeed there is any place which will tolerate them at all." 239
F.2d 527, 530.
[ Footnote 34 ] See discussion in Perez v. Brownell, ante, p. 44, at 64.
[ Footnote 35 ] See Study on Statelessness, U. N. Doc. No. E/1112; Seckler-Hudson,
Statelessness: With Special Reference to the United States; Borchard, Diplomatic Protection of
Citizens Abroad, 262, 334.
[ Footnote 36 ] The suggestion that judicial relief will be available to alleviate the potential rigors
of statelessness assumes too much. Undermining such assumption is the still fresh memory of
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 , where an alien, resident in this
country for 25 years, returned from a visit abroad to find himself barred from this country and
from all others to which he turned. Summary imprisonment on Ellis Island was his fate, without
any judicial examination of the grounds of his confinement. This Court denied relief, and the
intolerable situation was remedied after four years' imprisonment only through executive action
as a matter of grace. See N. Y. Times, Aug. 12, 1954, p. 10, col. 4.
[ Footnote 37 ] See Laws Concerning Nationality, U. N. Doc. No. ST/LEG/SER.B/4 (1954).
[ Footnote 38 ] Id., at 379 and 461. Cf. Nationality Law of August 22, 1907, Art. 17 (2) (Haiti),
id., at 208.
MR. JUSTICE BLACK, whom MR. JUSTICE DOUGLAS joins, concurring.
While I concur in the opinion of THE CHIEF JUSTICE there is one additional thing that needs
to be said.
Even if citizenship could be involuntarily divested, I do not believe that the power to
denationalize may be placed in the hands of military authorities. If desertion or other misconduct
is to be a basis for forfeiting citizenship, guilt should be determined in a civilian court of justice
where all the protections of the Bill of Rights guard the fairness of the outcome. Such forfeiture
should not rest on the findings of a military tribunal. Military courts may try soldiers and punish
them for military offenses, but they should not have the last word on the soldier's right to
citizenship. The statute held invalid [356 U.S. 86, 105] here not only makes the military's finding
of desertion final but gives military authorities discretion to choose which soldiers convicted of
desertion shall be allowed to keep their citizenship and which ones shall thereafter be stateless.
Nothing in the Constitution or its history lends the slightest support for such military control over
the right to be an American citizen.
MR. JUSTICE BRENNAN, concurring.
In Perez v. Brownell, ante, p. 44, also decided today, I agreed with the Court that there was no
constitutional infirmity in 401 (e), which expatriates the citizen who votes in a foreign political
election. I reach a different conclusion in this case, however, because I believe that 401 (g),
which expatriates the wartime deserter who is dishonorably discharged after conviction by court-
martial, lies beyond Congress' power to enact. It is, concededly, paradoxical to justify as
constitutional the expatriation of the citizen who has committed no crime by voting in a Mexican
political election, yet find unconstitutional a statute which provides for the expatriation of a
soldier guilty of the very serious crime of desertion in time of war. The loss of citizenship may
have as ominous significance for the individual in the one case as in the other. Why then does
not the Constitution prevent the expatriation of the voter as well as the deserter?
Here, as in Perez v. Brownell, we must inquire whether there exists a relevant connection
between the particular legislative enactment and the power granted to Congress by the
Constitution. The Court there held that such a relevant connection exists between the power to
maintain relations with other sovereign nations and the power to expatriate the American who
votes in a foreign election. (1) Within the power granted to Congress to regulate the conduct of
foreign affairs lies the power to deal with evils which might obstruct or embarrass our diplomatic
[356 U.S. 86, 106] interests. Among these evils, Congress might believe, is that of voting by
American citizens in political elections of other nations. 1 Whatever the realities of the situation,
many foreign nations may well view political activity on the part of Americans, even if lawful, as
either expressions of official American positions or else as improper meddling in affairs not their
own. In either event the reaction is liable to be detrimental to the interests of the United States.
(2) Finding that this was an evil which Congress was empowered to prevent, the Court concluded
that expatriation was a means reasonably calculated to achieve this end. Expatriation, it should
be noted, has the advantage of acting automatically, for the very act of casting the ballot is the
act of denationalization, which could have the effect of cutting off American responsibility for
the consequences. If a foreign government objects, our answer should be conclusive - the voter is
no longer one of ours. Harsh as the consequences may be to the individual concerned, Congress
has ordained the loss of citizenship simultaneously with the act of voting because Congress
might reasonably believe that in these circumstances there is no acceptable alternative to
expatriation as a means of avoiding possible embarrassments to our relations with foreign
nations. 2 And where Congress has determined that considerations of the highest national
importance indicate a course of action for which an adequate [356 U.S. 86, 107] substitute might
rationally appear lacking, I cannot say that this means lies beyond Congress' power to choose.
Cf. Korematsu v. United States, 323 U.S. 214 .
In contrast to 401 (e), the section with which we are now concerned, 401 (g), draws upon the
power of Congress to raise and maintain military forces to wage war. No pretense can here be
made that expatriation of the deserter in any way relates to the conduct of foreign affairs, for this
statute is not limited in its effects to those who desert in a foreign country or who flee to another
land. Nor is this statute limited in its application to the deserter whose conduct imports "elements
of an allegiance to another country in some measure, at least, inconsistent with American
citizenship." Perez v. Brownell, supra, at 61. The history of this provision, indeed, shows that the
essential congressional purpose was a response to the needs of the military in maintaining
discipline in the armed forces, especially during wartime. There can be no serious question that
included in Congress' power to maintain armies is the power to deal with the problem of
desertion, an act plainly destructive, not only of the military establishment as such, but, more
importantly, of the Nation's ability to wage war effectively. But granting that Congress is
authorized to deal with the evil of desertion, we must yet inquire whether expatriation is a means
reasonably calculated to achieve this legitimate end and thereby designed to further the ultimate
congressional objective - the successful waging of war.
Expatriation of the deserter originated in the Act of 1865, 13 Stat. 490, when wholesale desertion
and draftlaw violations seriously threatened the effectiveness of the Union armies. 3 The 1865
Act expressly provided [356 U.S. 86, 108] that expatriation was to be "in addition to the other
lawful penalties of the crime of desertion . . . ." This was emphasized in the leading case under
the 1865 Act, Huber v. Reily, 53 Pa. 112, decided by the Pennsylvania Supreme Court little more
than a year after passage of the Act. The court said that "Its avowed purpose is to add to the
penalties which the law had previously affixed to the offence of desertion from the military or
naval service of the United States, and it denominates the additional sanctions provided as
penalties." Id., at 114-115.
But, although it imposed expatriation entirely as an added punishment for crime, the 1865 Act
did not expressly make conviction by court-martial a prerequisite to that punishment, as was the
case with the conventional penalties. The Pennsylvania Supreme Court felt that Huber was right
in contending that this was a serious constitutional objection: "[T]he act proposes to inflict pains
and penalties upon offenders before and without a trial and conviction by due process of law, and
. . . it is therefore prohibited by the Bill of Rights." 53 Pa., at 115. The court, however, construed
the statute so as to avoid these constitutional difficulties, holding that loss of citizenship, like
other penalties for desertion, followed only upon conviction by court-martial.
This view of the 1865 Act was approved by this Court in Kurtz v. Moffitt, 115 U.S. 487, 501 ,
and, as noted there, the same view "has been uniformly held by the civil courts as well as by the
military authorities." See McCafferty v. Guyer, 59 Pa. 109; State v. Symonds, 57 Me. 148;
Gotcheus v. Matheson, 58 Barb. (N. Y.) 152; 2 Winthrop, Military Law and Precedents (2d ed.
1896), 1001. 4 Of [356 U.S. 86, 109] particular significance, moreover, is the fact that the
Congress has confirmed the correctness of the view that it purposed expatriation of the deserter
solely as additional punishment. The present 401 (g) merely incorporates the 1865 provision in
the codification which became the 1940 Nationality Act. 5 But now there is expressly stated
what was omitted from the 1865 Act, namely, that the deserter shall be expatriated "if and when
he is convicted thereof by court martial . . . ." 54 Stat. 1169, as amended, 8 U.S.C. 1481 (a) (8).
6
It is difficult, indeed, to see how expatriation of the deserter helps wage war except as it
performs that function when imposed as punishment. It is obvious that expatriation cannot in any
wise avoid the harm apprehended by Congress. After the act of desertion, only [356 U.S. 86,
110] punishment can follow, for the harm has been done. The deserter, moreover, does not cease
to be an American citizen at the moment he deserts. Indeed, even conviction does not necessarily
effect his expatriation, for dishonorable discharge is the condition precedent to loss of
citizenship. Therefore, if expatriation is made a consequence of desertion, it must stand together
with death and imprisonment - as a form of punishment.
To characterize expatriation as punishment is, of course, but the beginning of critical inquiry. As
punishment it may be extremely harsh, but the crime of desertion may be grave indeed.
However, the harshness of the punishment may be an important consideration where the asserted
power to expatriate has only a slight or tenuous relation to the granted power. In its material
forms no one can today judge the precise consequences of expatriation, for happily American
law has had little experience with this status, and it cannot be said hypothetically to what extent
the severity of the status may be increased consistently with the demands of due process. But it
can be supposed that the consequences of greatest weight, in terms of ultimate impact on the
petitioner, are unknown and unknowable. 7 Indeed, in truth, he may live out his life with but
minor inconvenience. He may perhaps live, work, marry, raise a family, and generally
experience a satisfactorily happy life. Nevertheless it cannot be denied that the impact of
expatriation - especially where statelessness is the upshot - may be severe. Expatriation, in this
respect, constitutes an [356 U.S. 86, 111] especially demoralizing sanction. The uncertainty, and
the consequent psychological hurt, which must accompany one who becomes an outcast in his
own land must be reckoned a substantial factor in the ultimate judgment.
In view of the manifest severity of this sanction, I feel that we should look closely at its probable
effect to determine whether Congress' imposition of expatriation as a penal device is justified in
reason. Clearly the severity of the penalty, in the case of a serious offense, is not enough to
invalidate it where the nature of the penalty is rationally directed to achieve the legitimate ends
of punishment.
The novelty of expatriation as punishment does not alone demonstrate its inefficiency. In recent
years we have seen such devices as indeterminate sentences and parole added to the traditional
term of imprisonment. Such penal methods seek to achieve the end, at once more humane and
effective, that society should make every effort to rehabilitate the offender and restore him as a
useful member of that society as society's own best protection. Of course, rehabilitation is but
one of the several purposes of the penal law. Among other purposes are deterrents of the
wrongful act by the threat of punishment and insulation of society from dangerous individuals by
imprisonment or execution. What then is the relationship of the punishment of expatriation to
these ends of the penal law? It is perfectly obvious that it constitutes the very antithesis of
rehabilitation, for instead of guiding the offender back into the useful paths of society it
excommunicates him and makes him, literally, an outcast. I can think of no more certain way in
which to make a man in whom, perhaps, rest the seeds of serious antisocial behavior more likely
to pursue further a career of unlawful activity than to place on him the stigma of the derelict,
uncertain of many of his basic rights. Similarly, it must be questioned whether expatriation [356
U.S. 86, 112] can really achieve the other effects sought by society in punitive devices. Certainly
it will not insulate society from the deserter, for unless coupled with banishment the sanction
leaves the offender at large. And as a deterrent device this sanction would appear of little effect,
for the offender, if not deterred by thought of the specific penalties of long imprisonment or even
death, is not very likely to be swayed from his course by the prospect of expatriation. 8 However
insidious and demoralizing may be the actual experience of statelessness, its contemplation in
advance seems unlikely to invoke serious misgiving, for none of us yet knows its ramifications.
In the light of these considerations, it is understandable that the Government has not pressed its
case on the basis of expatriation of the deserter as punishment for his crime. Rather, the
Government argues that the necessary nexus to the granted power is to be found in the idea that
legislative withdrawal of citizenship is justified in this case because Trop's desertion constituted
a refusal to perform one of the highest duties of American citizenship - the bearing of arms in a
time of desperate national peril. It cannot be denied that there is implicit in this a certain rough
justice. He who refuses to act as an American should no longer be an American - what could be
fairer? But I cannot see that this is anything other than forcing retribution from the offender -
naked vengeance. But many acts of desertion certainly fall far short of a "refusal to perform this
ultimate duty of American citizenship." [356 U.S. 86, 113]
Desertion is defined as "absence without leave accompanied by the intention not to return."
Army Manual for Courts-Martial (1928) 142. The offense may be quite technical, as where an
officer, "having tendered his resignation and prior to due notice of the acceptance of the same,
quits his post or proper duties without leave and with intent to absent himself permanently
therefrom . . . ." Article of War 28 (1920), 41 Stat. 792. Desertion is also committed where a
soldier, without having received a regular discharge, re-enlists in the same or another service.
The youngster, for example, restive at his assignment to a supply depot, who runs off to the front
to be in the fight, subjects himself to the possibility of this sanction. Yet the statute imposes the
penalty coextensive with the substantive crime. Since many acts of desertion thus certainly fall
far short of a "refusal to perform this ultimate duty of American citizenship," it stretches the
imagination excessively to establish a rational relation of mere retribution to the ends purported
to be served by expatriation of the deserter. I simply cannot accept a judgment that Congress is
free to adopt any measure at all to demonstrate its displeasure and exact its penalty from the
offender against its laws.
It seems to me that nothing is solved by the uncritical reference to service in the armed forces as
the "ultimate duty of American citizenship." Indeed, it is very difficult to imagine, on this theory
of power, why Congress cannot impose expatriation as punishment for any crime at all - for tax
evasion, for bank robbery, for narcotics offenses. As citizens we are also called upon to pay our
taxes and to obey the laws, and these duties appear to me to be fully as related to the nature of
our citizenship as our military obligations. But Congress' asserted power to expatriate the
deserter bears to the war powers precisely the same relation as its power to expatriate the tax
evader would bear to the taxing power. [356 U.S. 86, 114]
I therefore must conclude that 401 (g) is beyond the power of Congress to enact. Admittedly
Congress' belief that expatriation of the deserter might further the war effort may find some -
though necessarily slender - support in reason. But here, any substantial achievement, by this
device, of Congress' legitimate purposes under the war power seems fairly remote. It is at the
same time abundantly clear that these ends could more fully be achieved by alternative methods
not open to these objections. In the light of these factors, and conceding all that I possibly can in
favor of the enactment, I can only conclude that the requisite rational relation between this
statute and the war power does not appear - for in this relation the statute is not "really calculated
to effect any of the objects entrusted to the government . . .," M'Culloch v. Maryland, 4 Wheat.
316, 423 - and therefore that 401 (g) falls beyond the domain of Congress.
[ Footnote 1 ] Some indication of the problem is to be seen in the joint resolutions introduced in
both houses of Congress to exempt the two or three thousand Americans who allegedly lost their
citizenship by voting in certain Italian elections. See S. J. Res. 47 and H. J. Res. 30, 239, 375,
81st Cong., 1st Sess. All proposed "to suspend the operation of section 401 (e) of the Nationality
Act of 1940 in certain cases." See also H. R. 6400, 81st Cong., 1st Sess.
[ Footnote 2 ] Perez v. Brownell did not raise questions under the First Amendment, which of
course would have the effect in appropriate cases of limiting congressional power otherwise
possessed.
[ Footnote 3 ] A good description of the extent of the problem raised by desertions from the
Union armies, and of the extreme measures taken to combat the problem, will be found in Pullen,
The Twentieth Maine: A volunteer Regiment of the Civil War (1957).
[ Footnote 4 ] The opinion in Huber v. Reily, which was written by Mr. Justice Strong, later a
member of this Court, suggested, if it did not hold, that the statutes and considerations of due
process required that expatriation, to be accomplished, should be specifically included by [356
U.S. 86, 109] the court-martial as part of the sentence. See 53 Pa., at 119-120. The court-martial,
under military law, adjudges both guilt and the extent of initial sentence. Jackson v. Taylor, 353
U.S. 569, 574 -575; and see Article of War 58 (1920), 41 Stat. 800. However, it has not been the
practice specifically to include expatriation as part of the sentence. 2 Winthrop, Military Law and
Precedents (2d ed. 1896), 1001.
[ Footnote 5 ] The provision was limited in 1912 to desertion in time of war, 37 Stat. 356, but
otherwise was not revised until carried into the Nationality Act of 1940, 54 Stat. 1169. It was,
however, first codified as part of the laws concerning citizenship as 1998 of the 1874 Revised
Statutes.
[ Footnote 6 ] The reason for the addition of the proviso is stated in a report, Codification of the
Nationality Laws of the United States, H. R. Comm. Print, Pt. 1, 76th Cong., 1st Sess., prepared
at the request of the President by the Secretary of State, the Attorney General, and the Secretary
of Labor, proposing a revision and codification of the nationality laws: "The provisions of
sections 1996 and 1998 of the Revised Statutes are distinctly penal in character. They must,
therefore, be construed strictly, and the penalties take effect only upon conviction by a court
martial (Huber v. Reilly, 1866, 53 Penn. St. 112; Kurtz v. Moffitt, 1885, 115 U.S. 487 )." Id., at
68. The reference later in the report that 401 "technically is not a penal law" is to the section as a
whole and not to subdivision (g).
[ Footnote 7 ] Adjudication of hypothetical and contingent consequences is beyond the function
of this Court and the incidents of expatriation are altogether indefinite. Nonetheless, this very
uncertainty of the consequences makes expatriation as punishment severe. It is also unnecessary
to consider whether the consequences would be different for the citizen expatriated under
another section than 401 (g).
[ Footnote 8 ] A deterrent effect is certainly conjectural when we are told that during World War
II as many as 21,000 soldiers were convicted of desertion and sentenced to be dishonorably
discharged. From the fact that the reviewing authorities ultimately remitted the dishonorable
discharges in about two-thirds of these cases it is possible to infer that the military itself had no
firm belief in the deterrent effects of expatriation.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BURTON, MR. JUSTICE CLARK and
MR. JUSTICE HARLAN join, dissenting.
Petitioner was born in Ohio in 1924. While in the Army serving in French Morocco in 1944, he
was tried by a general court-martial and found guilty of having twice escaped from confinement,
of having been absent without leave, and of having deserted and remained in desertion for one
day. He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances and
confinement at hard labor for three years. He subsequently returned to the United States. In 1952
he applied for a passport; this application was denied by the State Department on the ground that
petitioner had lost his citizenship as a result of his conviction of and dishonorable discharge for
desertion from the Army in time of war. The Department relied upon 401 of the [356 U.S. 86,
115] Nationality Act of 1940, 54 Stat. 1137, 1168, as amended by the Act of January 20, 1944,
58 Stat. 4, which provided, in pertinent part, 1 that
"A person who is a national of the United States, whether by birth or naturalization, shall lose
his nationality by:
. . . . .
"(g) Deserting the military or naval forces of the United States in time of war, provided he is
convicted thereof by court martial and as the result of such conviction is dismissed or
dishonorably discharged from the service of such military or naval forces: Provided, That
notwithstanding loss of nationality or citizenship or civil or political rights under the terms of this
or previous Acts by reason of desertion committed in time of war, restoration to active duty
with such military or naval forces in time of war or the reenlistment or induction of such a
person in time of war with permission of competent military or naval authority, prior or
subsequent to the effective date of this Act, shall be deemed to have the immediate effect of
restoring such nationality or citizenship and all civil and political rights heretofore or hereafter
so lost and of removing all civil and political disabilities resulting therefrom . . . ."
In 1955 petitioner brought suit in a United States District Court for a judgment declaring him to be a
national of the United States. The Government's motion for summary judgment was granted and
petitioner's denied. [356 U.S. 86, 116] The Court of Appeals for the Second Circuit affirmed, one judge
dissenting. 239 F.2d 527.
At the threshold the petitioner suggests constructions of the statute that would avoid
consideration of constitutional issues. If such a construction is precluded, petitioner contends that
Congress is without power to attach loss of citizenship as a consequence of conviction for
desertion. He also argues that such an exercise of power would violate the Due Process Clause of
the Fifth Amendment to the Constitution and the prohibition against cruel and unusual
punishments in the Eighth Amendment.
The subsection of 401 of the Nationality Act of 1940, as amended, making loss of nationality
result from a conviction for desertion in wartime is a direct descendant of a provision enacted
during the Civil War. One section of "An Act to amend the several Acts heretofore passed to
provide for the Enrolling and Calling out [of] the National Forces, and for other Purposes," 13
Stat. 487, 490, approved on March 3, 1865, provided that "in addition to the other lawful
penalties of the crime of desertion from the military or naval service," all persons who desert
such service "shall be deemed and taken to have voluntarily relinquished and forfeited their
rights of citizenship and their rights to become citizens . . . ." Except as limited in 1912 to
desertion in time of war, 37 Stat. 356, the provision remained in effect until absorbed into the
Nationality Act of 1940. 54 Stat. 1137, 1169, 1172. Shortly after its enactment the 1865
provision received an important interpretation in Huber v. Reily, 53 Pa. 112 (1866). There, the
Supreme Court of Pennsylvania, in an opinion by Mr. Justice Strong, later of this Court, held that
the disabilities of the 1865 Act could attach only after the individual had been convicted of
desertion by a court-martial. The requirement was drawn from the Due Process Clause of the
Fifth Amendment to the Constitution. 53 Pa., at 116-118. This interpretation was [356 U.S. 86,
117] followed by other courts, e. g., State v. Symonds, 57 Me. 148, and was referred to
approvingly by this Court in 1885 in Kurtz v. Moffitt, 115 U.S. 487 , without discussion of its
rationale.
When the nationality laws of the United States were revised and codified as the Nationality Act
of 1940, 54 Stat. 1137, there was added to the list of acts that result in loss of American
nationality, "Deserting the military or naval service of the United States in time of war, provided
he [the deserter] is convicted thereof by a court martial." 401 (g), 54 Stat. 1169. During the
consideration of the Act, there was substantially no debate on this provision. It seems clear,
however, from the report of the Cabinet Committee that had recommended its adoption that
nothing more was intended in its enactment than to incorporate the 1865 provision into the 1940
codification, at the same time making it clear that nationality, and not the ambiguous "rights of
citizenship," 2 was to be lost and that the provision applied to all nationals. Codification of the
Nationality Laws of the United States, H. R. Comm. Print, Pt. 1, 76th Cong., 1st Sess. 68.
In 1944, at the request of the War Department, Congress amended 401 (g) of the 1940 Act into
the form in which it was when applied to the petitioner; this amendment required that a dismissal
or dishonorable discharge result from the conviction for desertion before expatriation should
follow and provided that restoration of a deserter to active duty during wartime should have the
effect of restoring his citizenship. 58 Stat. 4. It is abundantly clear from the debate and reports
that the [356 U.S. 86, 118] sole purpose of this change was to permit persons convicted of
desertion to regain their citizenship and continue serving in the armed forces, H. R. Rep. No.
302, 78th Cong., 1st Sess. 1; S. Rep. No. 382, 78th Cong., 1st Sess. 1; 89 Cong. Rec. 10135.
Because it was thought unreasonable to require persons who were still in the service to fight and,
perhaps, die for the country when they were no longer citizens, the requirement of dismissal or
dishonorable discharge prior to denationalization was included in the amendment. See S. Rep.
No. 382, supra, at 3; 89 Cong. Rec. 3241.
Petitioner advances two possible constructions of 401 (g) that would exclude him from its
operation and avoid constitutional determinations. It is suggested that the provision applies only
to desertion to the enemy and that the sentence of a dishonorable discharge, without the
imposition of which a conviction for desertion does not have an expatriating effect, must have
resulted from a conviction solely for desertion. There is no support for the first of these
constructions in a fair reading of 401 (g) or in its congressional history. Rigorously as we are
admonished to avoid consideration of constitutional issues if statutory disposition is available, it
would do violence to what this statute compellingly conveys to draw from it a meaning other
than what it spontaneously reveals.
Section 401 (g) imposes expatriation on an individual for desertion "provided he is convicted
thereof by court martial and as the result of such conviction is dismissed or dishonorably
discharged from the service of such military or naval forces . . . ." Petitioner's argument is that
the dishonorable discharge must be solely "the result of such conviction" and that 401 (g) is
therefore not applicable to him, convicted as he was of escape from confinement and absence
without leave in addition to desertion. Since the invariable practice in military trials [356 U.S. 86,
119] is and has been that related offenses are tried together with but a single sentence to cover all
convictions, see Jackson v. Taylor, 353 U.S. 569, 574 , the effect of the suggested construction
would be to force a break with the historic process of military law for which Congress has not in
the remotest way given warrant. The obvious purpose of the 1944 amendment, requiring
dishonorable discharge as a condition precedent to expatriation, was to correct the situation in
which an individual who had been convicted of desertion, and who had thus lost his citizenship,
was kept on duty to fight and sometimes die "for his country which disowns him." Letter from
Secretary of War to Chairman, Senate Military Affairs Committee, S. Rep. No. 382, 78th Cong.,
1st Sess. 3. There is not a hint in the congressional history that the requirement of discharge was
intended to make expatriation depend on the seriousness of the desertion, as measured by the
sentence imposed. If we are to give effect to the purpose of Congress in making a conviction for
wartime desertion result in loss of citizenship, we must hold that the dishonorable discharge, in
order for expatriation to follow, need only be "the result of" conviction for one or more offenses
among which one must be wartime desertion.
Since none of petitioner's nonconstitutional grounds for reversal can be sustained, his claim of
unconstitutionality must be faced. What is always basic when the power of Congress to enact
legislation is challenged is the appropriate approach to judicial review of congressional
legislation. All power is, in Madison's phrase, "of an encroaching nature." Federalist, No. 48
(Earle ed. 1937), at 321. Judicial power is not immune against this human weakness. It also must
be on guard against encroaching beyond its proper bounds, and not the less so since the only
restraint upon it is self-restraint. When the power of Congress to pass a statute is challenged, the
function [356 U.S. 86, 120] of this Court is to determine whether legislative action lies clearly
outside the constitutional grant of power to which it has been, or may fairly be, referred. In
making this determination, the Court sits in judgment on the action of a co-ordinate branch of the
Government while keeping unto itself - as it must under our constitutional system - the final
determination of its own power to act. No wonder such a function is deemed "the gravest and
most delicate duty that this Court is called on to perform." Holmes, J., in Blodgett v. Holden, 275
U.S. 142, 148 (separate opinion). This is not a lip-serving platitude.
Rigorous observance of the difference between limits of power and wise exercise of power -
between questions of authority and questions of prudence - requires the most alert appreciation
of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it
require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want
of wisdom to prevail, to disregard one's own strongly held view of what is wise in the conduct of
affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious
regard for limitations on its own power, and this precludes the Court's giving effect to its own
notions of what is wise or politic. That self-restraint is of the essence in the observance of the
judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom
of what Congress and the Executive Branch do.
One of the principal purposes in establishing the Constitution was to "provide for the common
defence." To that end the States granted to Congress the several powers of Article I, Section 8,
clauses 11 to 14 and 18, compendiously described as the "war power." Although these specific
grants of power do not specifically enumerate every factor relevant to the power to conduct war,
there is no limitation upon it (other than what the Due Process [356 U.S. 86, 121] Clause
commands). The scope of the war power has been defined by Chief Justice Hughes in Home
Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 426 : "[T]he war power of the Federal
Government is not created by the emergency of war, but it is a power given to meet that
emergency. It is a power to wage war successfully, and thus it permits the harnessing of the
entire energies of the people in a supreme cooperative effort to preserve the nation." See also
Chief Justice Stone's opinion in Hirabayashi v. United States, 320 U.S. 81, 93 .
Probably the most important governmental action contemplated by the war power is the building
up and maintenance of an armed force for the common defense. Just as Congress may be
convinced of the necessity for conscription for the effective conduct of war, Selective Draft Law
Cases, 245 U.S. 366 , Congress may justifiably be of the view that stern measures - what to some
may seem overly stern - are needed in order that control may be had over evasions of military
duty when the armed forces are committed to the Nation's defense, and that the deleterious
effects of those evasions may be kept to the minimum. Clearly Congress may deal severely with
the problem of desertion from the armed forces in wartime; it is equally clear - from the face of
the legislation and from the circumstances in which it was passed - that Congress was calling
upon its war powers when it made such desertion an act of expatriation. Cf. Winthrop, Military
Law and Precedents (2d ed., Reprint 1920), 647.
Possession by an American citizen of the rights and privileges that constitute citizenship imposes
correlative obligations, of which the most indispensable may well be "to take his place in the
ranks of the army of his country and risk the chance of being shot down in its defense," Jacobson
v. Massachusetts, 197 U.S. 11, 29 . Harsh as this may sound, it is no more so than the actualities
to which it responds. Can it be said that there is no [356 U.S. 86, 122] rational nexus between
refusal to perform this ultimate duty of American citizenship and legislative withdrawal of that
citizenship? Congress may well have thought that making loss of citizenship a consequence of
wartime desertion would affect the ability of the military authorities to control the forces with
which they were expected to fight and win a major world conflict. It is not for us to deny that
Congress might reasonably have believed the morale and fighting efficiency of our troops would
be impaired if our soldiers knew that their fellows who had abandoned them in their time of
greatest need were to remain in the communion of our citizens.
Petitioner urges that imposing loss of citizenship as a "punishment" for wartime desertion is a
violation of both the Due Process Clause of the Fifth Amendment and the Eighth Amendment.
His objections are that there is no notice of expatriation as a consequence of desertion in the
provision defining that offense, that loss of citizenship as a "punishment" is unconstitutionally
disproportionate to the offense of desertion and that loss of citizenship constitutes "cruel and
unusual punishment."
The provision of the Articles of War under which petitioner was convicted for desertion, Art. 58,
Articles of War, 41 Stat. 787, 800, does not mention the fact that one convicted of that offense in
wartime should suffer the loss of his citizenship. It may be that stating all of the consequences of
conduct in the statutory provision making it an offense is a desideratum in the administration of
criminal justice; that can scarcely be said - nor does petitioner contend that it ever has been said -
to be a constitutional requirement. It is not for us to require Congress to list in one statutory
section not only the ordinary penal consequences of engaging in activities therein prohibited but
also the collateral disabilities that follow, by operation of law, from a conviction thereof duly
resulting [356 U.S. 86, 123] from a proceeding conducted in accordance with all of the relevant
constitutional safeguards. 3
Of course an individual should be apprised of the consequences of his actions. The Articles of
War put petitioner on notice that desertion was an offense and that, when committed in wartime,
it was punishable by death. Art. 58, supra. Expatriation automatically followed by command of
the Nationality Act of 1940, a duly promulgated Act of Congress. The War Department appears
to have made every effort to inform individual soldiers of the gravity of the consequences of
desertion; its Circular No. 273 of 1942 pointed out that convictions for desertion were punishable
by death and would result in "forfeiture of the rights of citizenship," and it instructed unit
commanders to "explain carefully to all [356 U.S. 86, 124] personnel of their commands [certain
Articles of War, including Art. 58] . . . and emphasize the serious consequences which may
result from their violation." Compilation of War Department General Orders, Bulletins, and
Circulars (Government Printing Office 1943) 343. That Congress must define in the rubric of the
substantive crime all the consequences of conduct it has made a grave offense and that it cannot
provide for a collateral consequence, stern as it may be, by explicit pronouncement in another
place on the statute books is a claim that hardly rises to the dignity of a constitutional
requirement.
Petitioner contends that loss of citizenship is an unconstitutionally disproportionate
"punishment" for desertion and that it constitutes "cruel and unusual punishment" within the
scope of the Eighth Amendment. Loss of citizenship entails undoubtedly severe - and in
particular situations even tragic - consequences. Divestment of citizenship by the Government
has been characterized, in the context of denaturalization, as "more serious than a taking of one's
property, or the imposition of a fine or other penalty." Schneiderman v. United States, 320 U.S.
118, 122 . However, like denaturalization, see Klapprott v. United States, 335 U.S. 601, 612 ,
expatriation under the Nationality Act of 1940 is not "punishment" in any valid constitutional
sense. Cf. Fong Yue Ting v. United States, 149 U.S. 698, 730 . Simply because denationalization
was attached by Congress as a consequence of conduct that it had elsewhere made unlawful, it
does not follow that denationalization is a "punishment," any more than it can be said that loss of
civil rights as a result of conviction for a felony, see Gathings, Loss of Citizenship and Civil
Rights for Conviction of Crime, 43 Am. Pol. Sci. Rev. 1228, 1233, is a "punishment" for any
legally significant purposes. The process of denationalization, as devised by the expert Cabinet
Committee on which Congress quite properly [356 U.S. 86, 125] and responsibly relied 4 and as
established by Congress in the legislation before the Court, 5 was related to the authority of
Congress, pursuant to its constitutional powers, to regulate conduct free from restrictions that
pertain to legislation in the field technically described as criminal justice. Since there are
legislative ends within the scope of Congress' war power that are wholly consistent with a "non-
penal" purpose to regulate the military forces, and since there is nothing on the face of this
legislation or in its history to indicate that Congress had a contrary purpose, there is no warrant
for this Court's labeling the disability imposed by 401 (g) as a "punishment."
Even assuming, arguendo, that 401 (g) can be said to impose "punishment," to insist that
denationalization is "cruel and unusual" punishment is to stretch that concept beyond the
breaking point. It seems scarcely arguable that loss of citizenship is within the Eighth
Amendment's prohibition because disproportionate to an offense that is capital and has been so
from the first year of Independence. Art. 58, supra; 6, Art. 1, Articles of War of 1776, 5 J. Cont.
Cong. (Ford ed. 1906) 792. Is constitutional dialectic so empty of reason that it can be seriously
urged that loss of citizenship is a fate worse than death? The seriousness of abandoning one's
country when it is in the grip of mortal conflict precludes denial [356 U.S. 86, 126] to Congress of
the power to terminate citizenship here, unless that power is to be denied to Congress under any
circumstance.
Many civilized nations impose loss of citizenship for indulgence in designated prohibited
activities. See, generally, Laws Concerning Nationality, U. N. Doc. No. ST/LEG/SER.B/4
(1954). Although these provisions are often, but not always, applicable only to naturalized
citizens, they are more nearly comparable to our expatriation law than to our denaturalization
law. 6 Some countries have made wartime desertion result in loss of citizenship - native-born or
naturalized. E. g., 1 (6), Philippine Commonwealth Act No. 63 of Oct. 21, 1936, as amended by
Republic Act No. 106 of June 2, 1947, U. N. Doc., supra, at 379; see Borchard, Diplomatic
Protection of Citizens Abroad, 730. In this country, desertion has been punishable by loss of at
least the "rights of citizenship" 7 since 1865. The Court today reaffirms its decisions (Mackenzie
v. Hare, 239 U.S. 299 ; Savorgnan v. United States, 338 U.S. 491 ) sustaining the power of
Congress to denationalize citizens who had no desire or intention to give up their citizenship. If
loss of citizenship may constitutionally be made the consequence of such conduct as marrying a
foreigner, and thus certainly not "cruel and unusual," it seems more than incongruous that such
loss should be thought "cruel and unusual" when it is the consequence of conduct that is also a
crime. In short, denationalization, when attached to the offense [356 U.S. 86, 127] of wartime
desertion, cannot justifiably be deemed so at variance with enlightened concepts of "humane
justice," see Weems v. United States, 217 U.S. 349, 378 , as to be beyond the power of Congress,
because constituting a "cruel and unusual" punishment within the meaning of the Eighth
Amendment.
Nor has Congress fallen afoul of that prohibition because a person's post-denationalization status
has elements of unpredictability. Presumably a denationalized person becomes an alien vis-a-vis
the United States. The very substantial rights and privileges that the alien in this country enjoys
under the federal and state constitutions puts him in a very different condition from that of an
outlaw in fifteenth-century England. He need not be in constant fear lest some dire and
unforeseen fate be imposed on him by arbitrary governmental action - certainly not "while this
Court sits" (Holmes, J., dissenting in Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S.
218, 223 ). The multitudinous decisions of this Court protective of the rights of aliens bear
weighty testimony. And the assumption that brutal treatment is the inevitable lot of
denationalized persons found in other countries is a slender basis on which to strike down an Act
of Congress otherwise amply sustainable.
It misguides popular understanding of the judicial function and of the limited power of this Court
in our democracy to suggest that by not invalidating an Act of Congress we would endanger the
necessary subordination of the military to civil authority. This case, no doubt, derives from the
consequence of a court-martial. But we are sitting in judgment not on the military but on
Congress. The military merely carried out a responsibility with which they were charged by
Congress. Should the armed forces have ceased discharging wartime deserters because Congress
attached the consequence it did to their performance of that responsibility? [356 U.S. 86, 128]
This legislation is the result of an exercise by Congress of the legislative power vested in it by
the Constitution and of an exercise by the President of his constitutional power in approving a
bill and thereby making it "a law." To sustain it is to respect the actions of the two branches of
our Government directly responsive to the will of the people and empowered under the
Constitution to determine the wisdom of legislation. The awesome power of this Court to
invalidate such legislation, because in practice it is bounded only by our own prudence in
discerning the limits of the Court's constitutional function, must be exercised with the utmost
restraint. Mr. Justice Holmes, one of the profoundest thinkers who ever sat on this Court,
expressed the conviction that "I do not think the United States would come to an end if we lost
our power to declare an Act of Congress void. I do think the Union would be imperiled if we
could not make that declaration as to the laws of the several States." Holmes, Speeches, 102. He
did not, of course, deny that the power existed to strike down congressional legislation, nor did
he shrink from its exercise. But the whole of his work during his thirty years of service on this
Court should be a constant reminder that the power to invalidate legislation must not be
exercised as if, either in constitutional theory or in the art of government, it stood as the sole
bulwark against unwisdom or excesses of the moment.
[ Footnote 1 ] The substance of this provision now appears in 349 (a) (8) of the Immigration and
Nationality Act of 1952, 66 Stat. 163, 268, 8 U.S.C. 1481 (a) (8).
[ Footnote 2 ] The precise meaning of this phrase has never been clear, see Roche, The Loss of
American Nationality - The Development of Statutory Expatriation, 99 U. of Pa. L. Rev. 25, 61-
62. It appears, however, that the State Department regarded it to mean loss of citizenship, see, e.
g., Hearings before the House Committee on Immigration and Naturalization on H. R. 6127, 76th
Cong., 1st Sess. 38.
[ Footnote 3 ] It should be noted that a person cannot be deprived of his citizenship merely on the
basis of an administrative finding that he deserted in wartime or even with finality on the sole
basis of his having been dishonorably discharged as a result of a conviction for wartime
desertion. Section 503 of the Nationality Act of 1940 provides: "If any person who claims a right
or privilege as a national of the United States is denied such right or privilege by any Department
or agency, or executive official thereof, upon the ground that he is not a national of the United
States, such person, regardless of whether he is within the United States or abroad, may institute
an action against the head of such Department or agency in the District Court of the United
States for the District of Columbia or in the district court of the United States for the district in
which such person claims a permanent residence for a judgment declaring him to be a national of
the United States. . . ." 54 Stat. 1137, 1171, now 360 of the Immigration and Nationality Act of
1952, 66 Stat. 163, 273, 8 U.S.C. 1503. In such a proceeding it is open to a person who, like
petitioner, is alleged to have been expatriated under 401 (g) of the 1940 Act to show, for
example, that the court-martial was without jurisdiction (including observance of the
requirements of due process) or that the individual, by his restoration to active duty after
conviction and discharge, regained his citizenship under the terms of the proviso in 401 (g),
supra.
[ Footnote 4 ] The report of that Committee stated that the provision in question "technically is
not a penal law." Codification of the Nationality Laws of the United States, supra, at 68. In their
letter to the President covering the report, the Committee stated that none of the loss of
nationality provisions was "designed to be punitive . . . ." Id., at VII.
[ Footnote 5 ] There is no basis for finding that the Congress that enacted this provision regarded
it otherwise than as part of the clearly nonpenal scheme of "acts of expatriation" represented by
401 of the Nationality Act of 1940, supra.
[ Footnote 6 ] In the United States, denaturalization is based exclusively on the theory that the
individual obtained his citizenship by fraud, see Luria v. United States, 231 U.S. 9, 24 ; the laws
of many countries making naturalized citizens subject to expatriation for grounds not applicable
to natural-born citizens do not relate those grounds to the actual naturalization process. E. g.,
British Nationality Act, 1948, 11 & 12 Geo. VI, c. 56, 20 (3).
[ Footnote 7 ] See note 2, supra. [356 U.S. 86, 129]
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 160869 May 11, 2007
AASJS (ADVOCATES AND ADHERENTS OF SOCIAL JUSTICE FOR SCHOOL
TEACHERS AND ALLIED WORKERS) MEMBER - HECTOR GUMANGAN
CALILUNG, Petitioner,
vs.
THE HONORABLE SIMEON DATUMANONG, in his official capacity as the Secretary of
Justice, Respondent.
D E C I S I O N
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:
x x x x
Pursuing his point, Rep. Dilangalen noted that under the measure, two situations exist - - the
retention of foreign citizenship, and the reacquisition of Philippine citizenship. In this case, he
observed that there are two citizenships and therefore, two allegiances. He pointed out that under
the Constitution, dual allegiance is inimical to public interest. He thereafter asked whether with
the creation of dual allegiance by reason of retention of foreign citizenship and the reacquisition
of Philippine citizenship, there will now be a violation of the Constitution
Rep. Locsin underscored that the measure does not seek to address the constitutional injunction
on dual allegiance as inimical to public interest. He said that the proposed law aims to facilitate
the reacquisition of Philippine citizenship by speedy means. However, he said that in one sense,
it addresses the problem of dual 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.
x x x x
Rep. Dilangalen asked whether in the particular case, the person did not denounce his foreign
citizenship and therefore still owes allegiance to the foreign government, and at the same time,
owes his allegiance to the Philippine government, such that there is now a case of dual
citizenship and dual allegiance.
Rep. Locsin clarified that by swearing to the supreme authority of the Republic, the person
implicitly renounces his foreign citizenship. However, he said that this is not a matter that he
wishes to address in Congress because he is not a member of a foreign parliament but a Member
of the House.
x x x x
Rep. Locsin replied that it is imperative that those who have dual allegiance contrary to national
interest should be dealt with by law. However, he said that the dual allegiance problem is not
addressed in the bill. He then cited the Declaration of Policy in the bill which states that "It is
hereby declared the policy of the State that all citizens who become citizens of another country
shall be deemed not to have lost their 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
(Emphasis 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 natural-born 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
WE CONCUR:
REYNATO S. PUNO
Chief Justice
CONSUELO YNARES-SANTIAGO
Associate Justice
ANGELINA SANDOVAL-
GUTIERREZ
Asscociate Justice

ANTONIO T. CARPIO
Associate Justice
(On leave)
MA. ALICIA AUSTRIA-MARTINEZ
Asscociate Justice
(On leave)
RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES
Asscociate Justice
ADOLFO S. AZCUNA
Associate Justice
DANTE O. TINGA
Asscociate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
CANCIO C. GARCIA
Asscociate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B.
NACHURA
Asscociate Justice
C E R T I F I C A T I O N
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.
REYNATO S. PUNO
Chief Justice

Footnotes
1
Executive Order No. 292, also known as the "Administrative Code of 1987," Book IV,
Title III, Chapter 1 (on the Department of Justice), states:
x x x x
SEC. 3. Powers and Functions. - To accomplish its mandate, the Department shall
have the following powers and functions:
x x x x
(6) Provide immigration and naturalization regulatory services and implement the
laws governing citizenship and the admission and stay of aliens;
x x x x
2
Rollo, p. 9.
3
Id. at 48.
4
11 Journal, House of Representatives (August 26, 2003).
5
An Act Providing for the Ways in which Philippine Citizenship may be Lost or
Reacquired. (Approved on October 21, 1936.)
x x x x
SECTION 1. How citizenship may be lost. - A Filipino citizen may lose his
citizenship in any of the following ways and/or events:
(1) By naturalization in a foreign country;
x x x x
6
G.R. No. 135083, May 26, 1999, 307 SCRA 630.
7
Id. at 643.
8
Rollo, pp. 55-56.
9
Supra note 7.
10
Records, Constitutional Commission 365 (July 8, 1986).
11
G.R. No. 148560, November 19, 2001, 369 SCRA 394.
12
Id. at 431.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 191618 November 23, 2010
ATTY. ROMULO B. MACALINTAL, Petitioner,
vs.
PRESIDENTIAL ELECTORAL TRIBUNAL, Respondent.
D E C I S I O N
NACHURA, J .:
Confronting us is an undesignated petition
1
filed by Atty. Romulo B. Macalintal (Atty.
Macalintal), that questions the constitution of the Presidential Electoral Tribunal (PET) as an
illegal and unauthorized progeny of Section 4,
2
Article VII of the Constitution:
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.
While petitioner concedes that the Supreme Court is "authorized to promulgate its rules for the
purpose," he chafes at the creation of a purportedly "separate tribunal" complemented by a
budget allocation, a seal, a set of personnel and confidential employees, to effect the
constitutional mandate. Petitioners averment is supposedly supported by the provisions of the
2005 Rules of the Presidential Electoral Tribunal (2005 PET Rules),
3
specifically:
(1) Rule 3 which provides for membership of the PET wherein the Chief Justice and the
Associate Justices are designated as "Chairman and Members," respectively;
(2) Rule 8(e) which authorizes the Chairman of the PET to appoint employees and
confidential employees of every member thereof;
(3) Rule 9 which provides for a separate "Administrative Staff of the Tribunal" with the
appointment of a Clerk and a Deputy Clerk of the Tribunal who, at the discretion of the
PET, may designate the Clerk of Court (en banc) as the Clerk of the Tribunal; and
(4) Rule 11 which provides for a "seal" separate and distinct from the Supreme Court
seal.
Grudgingly, petitioner throws us a bone by acknowledging that the invoked constitutional
provision does allow the "appointment of additional personnel."
Further, petitioner highlights our decision in Buac v. COMELEC
4
which peripherally declared
that "contests involving the President and the Vice-President fall within the exclusive original
jurisdiction of the PET, x x x in the exercise of quasi-judicial power." On this point, petitioner
reiterates that the constitution of the PET, with the designation of the Members of the Court as
Chairman and Members thereof, contravenes Section 12, Article VIII of the Constitution, which
prohibits the designation of Members of the Supreme Court and of other courts established by
law to any agency performing quasi-judicial or administrative functions.
The Office of the Solicitor General (OSG), as directed in our Resolution dated April 6, 2010,
filed a Comment
5
thereon. At the outset, the OSG points out that the petition filed by Atty.
Macalintal is unspecified and without statutory basis; "the liberal approach in its preparation x x
x is a violation of the well known rules of practice and pleading in this jurisdiction."
In all, the OSG crystallizes the following issues for resolution of the Court:
I
WHETHER x x x PETITIONER HAS LOCUS STANDI TO FILE THE INSTANT PETITION.
II
WHETHER x x x THE CREATION OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS
UNCONSTITUTIONAL FOR BEING A VIOLATION OF PARAGRAPH 7, SECTION 4 OF
ARTICLE VII OF THE 1987 CONSTITUTION.
III
WHETHER x x x THE DESIGNATION OF MEMBERS OF THE SUPREME COURT AS
MEMBERS OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS UNCONSTITUTIONAL
FOR BEING A VIOLATION OF SECTION 12, ARTICLE VIII OF THE 1987
CONSTITUTION.
6

In his Reply,
7
petitioner maintains that:
1. He has legal standing to file the petition given his averment of transcendental
importance of the issues raised therein;
2. The creation of the PET, a separate tribunal from the Supreme Court, violates Section
4, Article VII of the Constitution; and
3. The PET, being a separate tribunal, exercises quasi-judicial functions contrary to
Section 12, Article VIII of the Constitution.
We winnow the meanderings of petitioner into the singular issue of whether the constitution of
the PET, composed of the Members of this Court, is unconstitutional, and violates Section 4,
Article VII and Section 12, Article VIII of the Constitution.
But first, we dispose of the procedural issue of whether petitioner has standing to file the present
petition.
The issue of locus standi is derived from the following requisites of a judicial inquiry:
1. There must be an actual case or controversy;
2. The question of constitutionality must be raised by the proper party;
3. The constitutional question must be raised at the earliest possible opportunity; and
4. The decision of the constitutional question must be necessary to the determination of
the case itself.
8

On more than one occasion we have characterized a proper party as one who has sustained or is
in immediate danger of sustaining an injury as a result of the act complained of.
9
The dust has
long settled on the test laid down in Baker v. Carr:
10
"whether the party has alleged such a
personal stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for illumination of
difficult questions."
11
Until and unless such actual or threatened injury is established, the
complainant is not clothed with legal personality to raise the constitutional question.
Our pronouncements in David v. Macapagal-Arroyo
12
illuminate:
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the
general public. He may be a person who is affected no differently from any other person. He
could be suing as a "stranger," or in the category of a "citizen," or "taxpayer." In either case, he
has to adequately show that he is entitled to seek judicial protection. In other words, he has to
make out a sufficient interest in the vindication of the public order and the securing of relief as a"
citizen" or "taxpayer."
x x x x
However, to prevent just about any person from seeking judicial interference in any official
policy or act with which he disagreed with, and thus hinders the activities of governmental
agencies engaged in public service, the United States Supreme Court laid down the more
stringent "direct injury" test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same
Court ruled that for a private individual to invoke the judicial power to determine the validity of
an executive or legislative action, he must show that he has sustained a direct injury as a result of
that action, and it is not sufficient that he has a general interest common to all members of the
public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the
person who impugns the validity of a statute must have "a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury as a result." The Vera doctrine was
upheld in a litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse
Trainers Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese
League of the Philippines v. Felix.
However, being a mere procedural technicality, the requirement of locus standi may be waived
by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers
Cases, Araneta v. Dinglasan, where the "transcendental importance" of the cases prompted the
Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,
this Court resolved to pass upon the issues raised due to the "far-reaching implications" of the
petition notwithstanding its categorical statement that petitioner therein had no personality to file
the suit. Indeed, there is a chain of cases where this liberal policy has been observed, allowing
ordinary citizens, members of Congress, and civic organizations to prosecute actions involving
the constitutionality or validity of laws, regulations and rulings.
x x x x
By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided
that the following requirements are met:
(1) cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the
tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the election
law in question;
(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of infringes
upon their prerogatives as legislators.
Contrary to the well-settled actual and direct injury test, petitioner has simply alleged a
generalized interest in the outcome of this case, and succeeds only in muddling the issues.
Paragraph 2 of the petition reads:
2. x x x Since the creation and continued operation of the PET involves the use of public funds
and the issue raised herein is of transcendental importance, it is petitioners humble submission
that, as a citizen, a taxpayer and a member of the BAR, he has the legal standing to file this
petition.
But even if his submission is valid, petitioners standing is still imperiled by the white elephant
in the petition, i.e., his appearance as counsel for former President Gloria Macapagal-Arroyo
(Macapagal-Arroyo) in the election protest filed by 2004 presidential candidate Fernando Poe, Jr.
before the Presidential Electoral Tribunal,
13
because judicial inquiry, as mentioned above,
requires that the constitutional question be raised at the earliest possible opportunity.
14
Such
appearance as counsel before the Tribunal, to our mind, would have been the first opportunity to
challenge the constitutionality of the Tribunals constitution.
Although there are recognized exceptions to this requisite, we find none in this instance.
Petitioner is unmistakably estopped from assailing the jurisdiction of the PET before which
tribunal he had ubiquitously appeared and had acknowledged its jurisdiction in 2004. His failure
to raise a seasonable constitutional challenge at that time, coupled with his unconditional
acceptance of the Tribunals authority over the case he was defending, translates to the clear
absence of an indispensable requisite for the proper invocation of this Courts power of judicial
review. Even on this score alone, the petition ought to be dismissed outright.
Prior to petitioners appearance as counsel for then protestee Macapagal-Arroyo, we had
occasion to affirm the grant of original jurisdiction to this Court as a Presidential Electoral
Tribunal in the auspicious case of Tecson v. Commission on Elections.
15
Thus -
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, as "not (being) justiciable"
controversies or disputes involving contests on the elections, returns and qualifications of the
President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to
enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral
Tribunal to Try, Hear and Decide Protests Contesting the Election of the President-Elect and the
Vice-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.
Former Chief Justice Reynato S. Puno, in his separate opinion, was even more categorical:
The Court is unanimous on the issue of jurisdiction. It has no jurisdiction on the Tecson and
Valdez petitions. Petitioners cannot invoke Article VII, Section 4, par. 7 of the Constitution
which provides:
"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 word "contest" in the provision means that the jurisdiction of this Court can only be invoked
after the election and proclamation of a President or Vice President. There can be no "contest"
before a winner is proclaimed.
16

Similarly, in her separate opinion, Justice Alicia Austria-Martinez declared:
G.R. Nos. 161434 and 161634 invoke the Courts exclusive jurisdiction under the last paragraph
of Section 4, Article VII of the 1987 Constitution. I agree with the majority opinion that these
petitions should be dismissed outright for prematurity. The Court has no jurisdiction at this point
of time to entertain said petitions.
The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate Electoral Tribunal
(SET) and House of Representatives Electoral Tribunal (HRET) are electoral tribunals, each
specifically and exclusively clothed with jurisdiction by the Constitution to act respectively as
"sole judge of all contests relating to the election, returns, and qualifications" of the President
and Vice-President, Senators, and Representatives. In a litany of cases, this Court has long
recognized that these electoral tribunals exercise jurisdiction over election contests only after a
candidate has already been proclaimed winner in an election. Rules 14 and 15 of the Rules of the
Presidential Electoral Tribunal provide that, for President or Vice-President, election protest or
quo warranto may be filed after the proclamation of the winner.
17

Petitioner, a prominent election lawyer who has filed several cases before this Court involving
constitutional and election law issues, including, among others, the constitutionality of certain
provisions of Republic Act (R.A.) No. 9189 (The Overseas Absentee Voting Act of 2003),
18

cannot claim ignorance of: (1) the invocation of our jurisdiction under Section 4, Article VII of
the Constitution; and (2) the unanimous holding thereon. Unquestionably, the overarching
framework affirmed in Tecson v. Commission on Elections
19
is that the Supreme Court has
original jurisdiction to decide presidential and vice-presidential election protests while
concurrently acting as an independent Electoral Tribunal.
Despite the foregoing, petitioner is adamant on his contention that the provision, as worded, does
not authorize the constitution of the PET. And although he concedes that the Supreme Court may
promulgate its rules for this purpose, petitioner is insistent that the constitution of the PET is
unconstitutional. However, petitioner avers that it allows the Court to appoint additional
personnel for the purpose, notwithstanding the silence of the constitutional provision.
Petitioners pastiche arguments are all hurled at the Court, hopeful that at least one might
possibly stick. But these arguments fail to elucidate on the scope of the rules the Supreme Court
is allowed to promulgate. Apparently, petitioners concept of this adjunct of judicial power is
very restrictive. Fortunately, thanks in no part to petitioners opinion, we are guided by well-
settled principles of constitutional construction.
Verba legis dictates that wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed, in which case the
significance thus attached to them prevails. This Court, speaking through former Chief Justice
Enrique Fernando, in J.M. Tuason & Co., Inc. v. Land Tenure Administration
20
instructs:
As the Constitution is not primarily a lawyers document, it being essential for the rule of law to
obtain that it should ever be present in the peoples consciousness, its language as much as
possible should be understood in the sense they have in common use. What it says according to
the text of the provision to be construed compels acceptance and negates the power of the courts
to alter it, based on the postulate that the framers and the people mean what they say. Thus these
are cases where the need for construction is reduced to a minimum.
However, where there is ambiguity or doubt, the words of the Constitution should be interpreted
in accordance with the intent of its framers or ratio legis et anima. A doubtful provision must be
examined in light of the history of the times, and the condition and circumstances surrounding
the framing of the Constitution.
21
In following this guideline, courts should bear in mind the
object sought to be accomplished in adopting a doubtful constitutional provision, and the evils
sought to be prevented or remedied.
22
Consequently, the intent of the framers and the people
ratifying the constitution, and not the panderings of self-indulgent men, should be given effect.
Last, ut magis valeat quam pereat the Constitution is to be interpreted as a whole. We intoned
thus in the landmark case of Civil Liberties Union v. Executive Secretary:
23

It is a well-established rule in constitutional construction that no one provision of the
Constitution is to be separated from all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be brought into view and to be so interpreted
as to effectuate the great purposes of the instrument. Sections bearing on a particular subject
should be considered and interpreted together as to effectuate the whole purpose of the
Constitution and one section is not to be allowed to defeat another, if by any reasonable
construction, the two can be made to stand together.
In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the words
idle and nugatory.
We had earlier expounded on this rule of construction in Chiongbian v. De Leon, et al.,
24
to wit:
[T]he members of the Constitutional Convention could not have dedicated a provision of our
Constitution merely for the benefit of one person without considering that it could also affect
others. When they adopted subsection 2, they permitted, if not willed, that said 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.
On its face, the contentious constitutional provision does not specify the establishment of the
PET. But neither does it preclude, much less prohibit, otherwise. It entertains divergent
interpretations which, though unacceptable to petitioner, do not include his restrictive view one
which really does not offer a solution.
Section 4, Article VII of the Constitution, the provision under scrutiny, should be read with other
related provisions of the Constitution such as the parallel provisions on the Electoral Tribunals of
the Senate and the House of Representatives.
Before we resort to the records of the Constitutional Commission, we discuss the framework of
judicial power mapped out in the Constitution. Contrary to petitioners assertion, the Supreme
Courts constitutional mandate to act as sole judge of election contests involving our countrys
highest public officials, and its rule-making authority in connection therewith, is not restricted; it
includes all necessary powers implicit in the exercise thereof.
We recall the unprecedented and trailblazing case of Marcos v. Manglapus:
25

The 1987 Constitution has fully restored the separation of powers of the three great branches of
government. To recall the words of Justice Laurel in Angara v. Electoral Commission, "the
Constitution has blocked but with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the government." Thus, the 1987
Constitution explicitly provides that "[t]he legislative power shall be vested in the Congress of
the Philippines" [Art. VI, Sec. 1], "[t]he executive power shall be vested in the President of the
Philippines" [Art. VII, Sec. 1], and "[t]he judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law" [Art. VIII, Sec. 1]. These provisions not
only establish a separation of powers by actual division but also confer plenary legislative,
executive and judicial powers subject only to limitations provided in the Constitution. For as the
Supreme Court in Ocampo v. Cabangis pointed out "a grant of the legislative power means a
grant of all legislative power; and a grant of the judicial power means a grant of all the judicial
power which may be exercised under the government."
The Court could not have been more explicit then on the plenary grant and exercise of judicial
power. Plainly, the abstraction of the Supreme Court acting as a Presidential Electoral Tribunal
from the unequivocal grant of jurisdiction in the last paragraph of Section 4, Article VII of the
Constitution is sound and tenable.
The mirabile dictu of the grant of jurisdiction to this Court, albeit found in the Article on the
executive branch of government, and the constitution of the PET, is evident in the discussions of
the Constitutional Commission. On the exercise of this Courts judicial power as sole judge of
presidential and vice-presidential election contests, and to promulgate its rules for this purpose,
we find the proceedings in the Constitutional Commission most instructive:
MR. DAVIDE. On line 25, after the words "Vice-President," I propose to add AND MAY
PROMULGATE ITS RULES FOR THE PURPOSE. This refers to the Supreme Court sitting en
banc. This is also to confer on the Supreme Court exclusive authority to enact the necessary rules
while acting as sole judge of all contests relating to the election, returns and qualifications of the
President or Vice-President.
MR. REGALADO. My personal position is that the rule-making power of the Supreme Court
with respect to its internal procedure is already implicit under the Article on the Judiciary;
considering, however, that according to the Commissioner, the purpose of this is to indicate the
sole power of the Supreme Court without intervention by the legislature in the promulgation of
its rules on this particular point, I think I will personally recommend its acceptance to the
Committee.
26

x x x x
MR. NOLLEDO. x x x.
With respect to Sections 10 and 11 on page 8, I understand that the Committee has also created
an Electoral Tribunal in the Senate and a Commission on Appointments which may cover
membership from both Houses. But my question is: It seems to me that the committee report
does not indicate which body should promulgate the rules that shall govern the Electoral
Tribunal and the Commission on Appointments. Who shall then promulgate the rules of these
bodies?
MR. DAVIDE. The Electoral Tribunal itself will establish and promulgate its rules because it is
a body distinct and independent already from the House, and so with the Commission on
Appointments also. It will have the authority to promulgate its own rules.
27

On another point of discussion relative to the grant of judicial power, but equally cogent, we
listen to former Chief Justice Roberto Concepcion:
MR. SUAREZ. Thank you.
Would the Commissioner not consider that violative of the doctrine of separation of powers?
MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two
parties. This is a judicial power.
MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to
declare who will be the President of our country, which to me is a political action.
MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are
essentially justiciable questions.
MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all
the time of the Supreme Court sitting en banc would be occupied with it considering that they
will be going over millions and millions of ballots or election returns, Madam President.
28

Echoing the same sentiment and affirming the grant of judicial power to the Supreme Court,
Justice Florenz D. Regalado
29
and Fr. Joaquin Bernas
30
both opined:
MR. VILLACORTA. Thank you very much, Madam President.
I am not sure whether Commissioner Suarez has expressed his point. On page 2, the fourth
paragraph of Section 4 provides:
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.
May I seek clarification as to whether or not the matter of determining the outcome of the
contests relating to the election returns and qualifications of the President or Vice-President is
purely a political matter and, therefore, should not be left entirely to the judiciary. Will the
above-quoted provision not impinge on the doctrine of separation of powers between the
executive and the judicial departments of the government?
MR. REGALADO. No, I really do not feel that would be a problem. This is a new provision
incidentally. It was not in the 1935 Constitution nor in the 1973 Constitution.
MR. VILLACORTA. That is right.
MR. REGALADO. We feel that it will not be an intrusion into the separation of powers
guaranteed to the judiciary because this is strictly an adversarial and judicial proceeding.
MR. VILLACORTA. May I know the rationale of the Committee because this supersedes
Republic Act 7950 which provides for the Presidential Electoral Tribunal?
FR. BERNAS. Precisely, this is necessary. Election contests are, by their nature, judicial.
Therefore, they are cognizable only by courts. If, for instance, we did not have a constitutional
provision on an electoral tribunal for the Senate or an electoral tribunal for the House, normally,
as composed, that cannot be given jurisdiction over contests.
So, the background of this is really the case of Roxas v. Lopez. The Gentleman will remember
that in that election, Lopez was declared winner. He filed a protest before the Supreme Court
because there was a republic act which created the Supreme Court as the Presidential Electoral
Tribunal. The question in this case was whether new powers could be given the Supreme Court
by law. In effect, the conflict was actually whether there was an attempt to create two Supreme
Courts and the answer of the Supreme Court was: "No, this did not involve the creation of two
Supreme Courts, but precisely we are giving new jurisdiction to the Supreme Court, as it is
allowed by the Constitution. Congress may allocate various jurisdictions."
Before the passage of that republic act, in case there was any contest between two presidential
candidates or two vice-presidential candidates, no one had jurisdiction over it. So, it became
necessary to create a Presidential Electoral Tribunal. What we have done is to constitutionalize
what was statutory but it is not an infringement on the separation of powers because the power
being given to the Supreme Court is a judicial power.
31

Unmistakable from the foregoing is that the exercise of our power to judge presidential and vice-
presidential election contests, as well as the rule-making power adjunct thereto, is plenary; it is
not as restrictive as petitioner would interpret it. In fact, former Chief Justice Hilario G. Davide,
Jr., who proposed the insertion of the phrase, intended the Supreme Court to exercise exclusive
authority to promulgate its rules of procedure for that purpose. To this, Justice Regalado
forthwith assented and then emphasized that the sole power ought to be without intervention by
the legislative department. Evidently, even the legislature cannot limit the judicial power to
resolve presidential and vice-presidential election contests and our rule-making power connected
thereto.
To foreclose all arguments of petitioner, we reiterate that the establishment of the PET simply
constitutionalized what was statutory before the 1987 Constitution. The experiential context of
the PET in our country cannot be denied.
32

Consequently, we find it imperative to trace the historical antecedents of the PET.
Article VII, Section 4, paragraph 7 of the 1987 Constitution is an innovation. The precursors of
the present Constitution did not contain similar provisions and instead vested upon the legislature
all phases of presidential and vice-presidential elections from the canvassing of election
returns, to the proclamation of the president-elect and the vice-president elect, and even the
determination, by ordinary legislation, of whether such proclamations may be contested. Unless
the legislature enacted a law creating an institution that would hear election contests in the
Presidential and Vice-Presidential race, a defeated candidate had no legal right to demand a
recount of the votes cast for the office involved or to challenge the ineligibility of the proclaimed
candidate. Effectively, presidential and vice-presidential contests were non-justiciable in the then
prevailing milieu.
The omission in the 1935 Constitution was intentional. It was mainly influenced by the absence
of a similar provision in its pattern, the Federal Constitution of the United States. Rather, the
creation of such tribunal was left to the determination of the National Assembly. The journal of
the 1935 Constitutional Convention is crystal clear on this point:
Delegate Saguin. For an information. It seems that this Constitution does not contain any
provision with respect to the entity or body which will look into the protests for the positions of
the President and Vice-President.
President Recto. Neither does the American constitution contain a provision over the subject.
Delegate Saguin. But then, who will decide these protests?
President Recto. I suppose that the National Assembly will decide on that.
33

To fill the void in the 1935 Constitution, the National Assembly enacted R.A. No. 1793,
establishing an independent PET to try, hear, and decide protests contesting the election of
President and Vice-President. The Chief Justice and the Associate Justices of the Supreme Court
were tasked to sit as its Chairman and Members, respectively. Its composition was extended to
retired Supreme Court Justices and incumbent Court of Appeals Justices who may be appointed
as substitutes for ill, absent, or temporarily incapacitated regular members.
The eleven-member tribunal was empowered to promulgate rules for the conduct of its
proceedings. It was mandated to sit en banc in deciding presidential and vice-presidential
contests and authorized to exercise powers similar to those conferred upon courts of justice,
including the issuance of subpoena, taking of depositions, arrest of witnesses to compel their
appearance, production of documents and other evidence, and the power to punish contemptuous
acts and bearings. The tribunal was assigned a Clerk, subordinate officers, and employees
necessary for the efficient performance of its functions.
R.A. No. 1793 was implicitly repealed and superseded by the 1973 Constitution which replaced
the bicameral legislature under the 1935 Constitution with the unicameral body of a
parliamentary government.
With the 1973 Constitution, a PET was rendered irrelevant, considering that the President was
not directly chosen by the people but elected from among the members of the National
Assembly, while the position of Vice-President was constitutionally non-existent.
In 1981, several modifications were introduced to the parliamentary system. Executive power
was restored to the President who was elected directly by the people. An Executive Committee
was formed to assist the President in the performance of his functions and duties. Eventually, the
Executive Committee was abolished and the Office of Vice-President was installed anew.
These changes prompted the National Assembly to revive the PET by enacting, on December 3,
1985, Batas Pambansa Bilang (B.P. Blg.) 884, entitled "An Act Constituting an Independent
Presidential Electoral Tribunal to Try, Hear and Decide Election Contests in the Office of the
President and Vice-President of the Philippines, Appropriating Funds Therefor and For Other
Purposes." This tribunal was composed of nine members, three of whom were the Chief Justice
of the Supreme Court and two Associate Justices designated by him, while the six were divided
equally between representatives of the majority and minority parties in the Batasang Pambansa.
Aside from the license to wield powers akin to those of a court of justice, the PET was permitted
to recommend the prosecution of persons, whether public officers or private individuals, who in
its opinion had participated in any irregularity connected with the canvassing and/or
accomplishing of election returns.
The independence of the tribunal was highlighted by a provision allocating a specific budget
from the national treasury or Special Activities Fund for its operational expenses. It was
empowered to appoint its own clerk in accordance with its rules. However, the subordinate
officers were strictly employees of the judiciary or other officers of the government who were
merely designated to the tribunal.
After the historic People Power Revolution that ended the martial law era and installed Corazon
Aquino as President, civil liberties were restored and a new constitution was formed.
With R.A. No. 1793 as framework, the 1986 Constitutional Commission transformed the then
statutory PET into a constitutional institution, albeit without its traditional nomenclature:
FR. BERNAS. x x x.
x x x. So it became necessary to create a Presidential Electoral Tribunal. What we have done is
to constitutionalize what was statutory but it is not an infringement on the separation of powers
because the power being given to the Supreme Court is a judicial power.
34

Clearly, petitioners bete noire of the PET and the exercise of its power are unwarranted. His
arguments that: (1) the Chief Justice and Associate Justices are referred to as "Chairman" and
"Members," respectively; (2) the PET uses a different seal; (3) the Chairman is authorized to
appoint personnel; and (4) additional compensation is allocated to the "Members," in order to
bolster his claim of infirmity in the establishment of the PET, are too superficial to merit further
attention by the Court.
Be that as it may, we hasten to clarify the structure of the PET as a legitimate progeny of Section
4, Article VII of the Constitution, composed of members of the Supreme Court, sitting en banc.
The following exchange in the 1986 Constitutional Commission should provide enlightenment:
MR. SUAREZ. Thank you. Let me proceed to line 23, page 2, wherein it is provided, and I
quote:
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.
Are we not giving enormous work to the Supreme Court especially when it is directed to sit en
banc as the sole judge of all presidential and vice-presidential election contests?
MR. SUMULONG. That question will be referred to Commissioner Concepcion.
MR. CONCEPCION. This function was discharged by the Supreme Court twice and the
Supreme Court was able to dispose of each case in a period of one year as provided by law. Of
course, that was probably during the late 1960s and early 1970s. I do not know how the present
Supreme Court would react to such circumstances, but there is also the question of who else
would hear the election protests.
MR. SUAREZ. We are asking this question because between lines 23 to 25, there are no rules
provided for the hearings and there is not time limit or duration for the election contest to be
decided by the Supreme Court. Also, we will have to consider the historical background that
when R.A. 1793, which organized the Presidential Electoral Tribunal, was promulgated on June
21, 1957, at least three famous election contests were presented and two of them ended up in
withdrawal by the protestants out of sheer frustration because of the delay in the resolution of the
cases. I am referring to the electoral protest that was lodged by former President Carlos P. Garcia
against our "kabalen" former President Diosdado Macapagal in 1961 and the vice-presidential
election contest filed by the late Senator Gerardo Roxas against Vice-President Fernando Lopez
in 1965.
MR. CONCEPCION. I cannot answer for what the protestants had in mind. But when that
protest of Senator Roxas was withdrawn, the results were already available. Senator Roxas did
not want to have a decision adverse to him. The votes were being counted already, and he did not
get what he expected so rather than have a decision adverse to his protest, he withdrew the case.
x x x x
MR. SUAREZ. I see. So the Commission would not have any objection to vesting in the
Supreme Court this matter of resolving presidential and vice-presidential contests?
MR. CONCEPCION. Personally, I would not have any objection.
MR. SUAREZ. Thank you.
Would the Commissioner not consider that violative of the doctrine of separation of powers?
MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two
parties. This is a judicial power.
MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to
declare who will be the President of our country, which to me is a political action.
MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are
essentially justiciable questions.
MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all
the time of the Supreme Court sitting en banc would be occupied with it considering that they
will be going over millions and millions of ballots or election returns, Madam President.
MR. CONCEPCION. The time consumed or to be consumed in this contest for President is
dependent upon they key number of teams of revisors. I have no experience insofar as contests in
other offices are concerned.
MR. SUAREZ. Although there is a requirement here that the Supreme Court is mandated to sit
en banc?
MR. CONCEPCION. Yes.
MR. SUAREZ. I see.
MR. CONCEPCION. The steps involved in this contest are: First, the ballot boxes are opened
before teams of three, generally, a representative each of the court, of the protestant and of the
"protestee." It is all a questions of how many teams are organized. Of course, that can be
expensive, but it would be expensive whatever court one would choose. There were times that
the Supreme Court, with sometimes 50 teams at the same time working, would classify the
objections, the kind of problems, and the court would only go over the objected votes on which
the parties could not agree. So it is not as awesome as it would appear insofar as the Court is
concerned. What is awesome is the cost of the revision of the ballots because each party would
have to appoint one representative for every team, and that may take quite a big amount.
MR. SUAREZ. If we draw from the Commissioners experience which he is sharing with us,
what would be the reasonable period for the election contest to be decided?
MR. CONCEPCION. Insofar as the Supreme Court is concerned, the Supreme Court always
manages to dispose of the case in one year.
MR. SUAREZ. In one year. Thank you for the clarification.
35

Obvious from the foregoing is the intent to bestow independence to the Supreme Court as the
PET, to undertake the Herculean task of deciding election protests involving presidential and
vice-presidential candidates in accordance with the process outlined by former Chief Justice
Roberto Concepcion. It was made in response to the concern aired by delegate Jose E. Suarez
that the additional duty may prove too burdensome for the Supreme Court. This explicit grant of
independence and of the plenary powers needed to discharge this burden justifies the budget
allocation of the PET.
The conferment of additional jurisdiction to the Supreme Court, with the duty characterized as an
"awesome" task, includes the means necessary to carry it into effect under the doctrine of
necessary implication.
36
We cannot overemphasize that the abstraction of the PET from the
explicit grant of power to the Supreme Court, given our abundant experience, is not unwarranted.
A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant of authority to the
Supreme Court sitting en banc. In the same vein, although the method by which the Supreme
Court exercises this authority is not specified in the provision, the grant of power does not
contain any limitation on the Supreme Courts exercise thereof. The Supreme Courts method of
deciding presidential and vice-presidential election contests, through the PET, is actually a
derivative of the exercise of the prerogative conferred by the aforequoted constitutional
provision. Thus, the subsequent directive in the provision for the Supreme Court to "promulgate
its rules for the purpose."
The conferment of full authority to the Supreme Court, as a PET, is equivalent to the full
authority conferred upon the electoral tribunals of the Senate and the House of Representatives,
i.e., the Senate Electoral Tribunal (SET) and the House of Representatives Electoral Tribunal
(HRET),
37
which we have affirmed on numerous occasions.
38

Particularly cogent are the discussions of the Constitutional Commission on the parallel
provisions of the SET and the HRET. The discussions point to the inevitable conclusion that the
different electoral tribunals, with the Supreme Court functioning as the PET, are constitutional
bodies, independent of the three departments of government Executive, Legislative, and
Judiciary but not separate therefrom.
MR. MAAMBONG. x x x.
My questions will be very basic so we can go as fast as we can. In the case of the electoral
tribunal, either of the House or of the Senate, is it correct to say that these tribunals are
constitutional creations? I will distinguish these with the case of the Tanodbayan and the
Sandiganbayan which are created by mandate of the Constitution but they are not constitutional
creations. Is that a good distinction?
x x x x
MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral Tribunal or the
House Electoral Tribunal is a constitutional body?
MR. AZCUNA. It is, Madam President.
MR. MAAMBONG. If it is a constitutional body, is it then subject to constitutional restrictions?
MR. AZCUNA. It would be subject to constitutional restrictions intended for that body.
MR. MAAMBONG. I see. But I want to find out if the ruling in the case of Vera v. Avelino, 77
Phil. 192, will still be applicable to the present bodies we are creating since it ruled that the
electoral tribunals are not separate departments of the government. Would that ruling still be
valid?
MR. AZCUNA. Yes, they are not separate departments because the separate departments are the
legislative, the executive and the judiciary; but they are constitutional bodies.
39

The view taken by Justices Adolfo S. Azcuna
40
and Regalado E. Maambong
41
is schooled by our
holding in Lopez v. Roxas, et al.:
42

Section 1 of Republic Act No. 1793, which provides that:
"There shall be an independent Presidential Electoral Tribunal x x x which shall be the sole
judge of all contests relating to the election, returns, and qualifications of the president-elect and
the vice-president-elect of the Philippines."
has the effect of giving said defeated candidate the legal right to contest judicially the election of
the President-elect of Vice-President-elect and to demand a recount of the votes case for the
office involved in the litigation, as well as to secure a judgment declaring that he is the one
elected president or vice-president, as the case may be, and that, as such, he is entitled to assume
the duties attached to said office. And by providing, further, that the Presidential Electoral
Tribunal "shall be composed of the Chief Justice and the other ten Members of the Supreme
Court," said legislation has conferred upon such Court an additional original jurisdiction of an
exclusive character.
Republic Act No. 1793 has not created a new or separate court. It has merely conferred upon the
Supreme Court the functions of a Presidential Electoral Tribunal. The result of the enactment
may be likened to the fact that courts of first instance perform the functions of such ordinary
courts of first instance, those of court of land registration, those of probate courts, and those of
courts of juvenile and domestic relations. It is, also, comparable to the situation obtaining when
the municipal court of a provincial capital exercises its authority, pursuant to law, over a limited
number of cases which were previously within the exclusive jurisdiction of courts of first
instance.
In all of these instances, the court (court of first instance or municipal court) is only one,
although the functions may be distinct and, even, separate. Thus the powers of a court of first
instance, in the exercise of its jurisdiction over ordinary civil cases, are broader than, as well as
distinct and separate from, those of the same court acting as a court of land registration or a
probate court, or as a court of juvenile and domestic relations. So too, the authority of the
municipal court of a provincial capital, when acting as such municipal court, is, territorially more
limited than that of the same court when hearing the aforementioned cases which are primary
within the jurisdiction of courts of first instance. In other words, there is only one court, although
it may perform the functions pertaining to several types of courts, each having some
characteristics different from those of the others.
Indeed, the Supreme Court, the Court of Appeals and courts of first instance, are vested with
original jurisdiction, as well as with appellate jurisdiction, in consequence of which they are both
trial courts and, appellate courts, without detracting from the fact that there is only one Supreme
Court, one Court of Appeals, and one court of first instance, clothed with authority to discharge
said dual functions. A court of first instance, when performing the functions of a probate court or
a court of land registration, or a court of juvenile and domestic relations, although with powers
less broad than those of a court of first instance, hearing ordinary actions, is not inferior to the
latter, for one cannot be inferior to itself. So too, the Presidential Electoral Tribunal is not
inferior to the Supreme Court, since it is the same Court although the functions peculiar to said
Tribunal are more limited in scope than those of the Supreme Court in the exercise of its
ordinary functions. Hence, the enactment of Republic Act No. 1793, does not entail an
assumption by Congress of the power of appointment vested by the Constitution in the President.
It merely connotes the imposition of additional duties upon the Members of the Supreme Court.
By the same token, the PET is not a separate and distinct entity from the Supreme Court, albeit it
has functions peculiar only to the Tribunal. It is obvious that the PET was constituted in
implementation of Section 4, Article VII of the Constitution, and it faithfully complies not
unlawfully defies the constitutional directive. The adoption of a separate seal, as well as the
change in the nomenclature of the Chief Justice and the Associate Justices into Chairman and
Members of the Tribunal, respectively, was designed simply to highlight the singularity and
exclusivity of the Tribunals functions as a special electoral court.
As regards petitioners claim that the PET exercises quasi-judicial functions in contravention of
Section 12, Article VIII of the Constitution, we point out that the issue in Buac v. COMELEC
43

involved the characterization of the enforcement and administration of a law relative to the
conduct of a plebiscite which falls under the jurisdiction of the Commission on Elections.
However, petitioner latches on to the enumeration in Buac which declared, in an obiter, that
"contests involving the President and the Vice-President fall within the exclusive original
jurisdiction of the PET, also in the exercise of quasi-judicial power."
The issue raised by petitioner is more imagined than real. Section 12, Article VIII of the
Constitution reads:
SEC. 12. The Members of the Supreme Court and of other courts established by law shall not be
designated to any agency performing quasi-judicial or administrative functions.
The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution
which provides that the power "shall be vested in one Supreme Court and in such lower courts as
may be established by law." Consistent with our presidential system of government, the function
of "dealing with the settlement of disputes, controversies or conflicts involving rights, duties or
prerogatives that are legally demandable and enforceable"
44
is apportioned to courts of justice.
With the advent of the 1987 Constitution, judicial power was expanded to include "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."
45
The power was expanded, but it remained absolute.
The set up embodied in the Constitution and statutes characterizes the resolution of electoral
contests as essentially an exercise of judicial power.1avvphi1
At the barangay and municipal levels, original and exclusive jurisdiction over election contests is
vested in the municipal or metropolitan trial courts and the regional trial courts, respectively.
At the higher levels city, provincial, and regional, as well as congressional and senatorial
exclusive and original jurisdiction is lodged in the COMELEC and in the House of
Representatives and Senate Electoral Tribunals, which are not, strictly and literally speaking,
courts of law. Although not courts of law, they are, nonetheless, empowered to resolve election
contests which involve, in essence, an exercise of judicial power, because of the explicit
constitutional empowerment found in Section 2(2), Article IX-C (for the COMELEC) and
Section 17, Article VI (for the Senate and House Electoral Tribunals) of the Constitution.
Besides, when the COMELEC, the HRET, and the SET decide election contests, their decisions
are still subject to judicial review via a petition for certiorari filed by the proper party if there
is a showing that the decision was rendered with grave abuse of discretion tantamount to lack or
excess of jurisdiction.
46

It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-
presidential election contest, it performs what is essentially a judicial power. In the landmark
case of Angara v. Electoral Commission,
47
Justice Jose P. Laurel enucleated that "it would be
inconceivable if the Constitution had not provided for a mechanism by which to direct the course
of government along constitutional channels." In fact, Angara pointed out that "[t]he Constitution
is a definition of the powers of government." And yet, at that time, the 1935 Constitution did not
contain the expanded definition of judicial power found in Article VIII, Section 1, paragraph 2 of
the present Constitution.
With the explicit provision, the present Constitution has allocated to the Supreme Court, in
conjunction with latters exercise of judicial power inherent in all courts,
48
the task of deciding
presidential and vice-presidential election contests, with full authority in the exercise thereof.
The power wielded by PET is a derivative of the plenary judicial power allocated to courts of
law, expressly provided in the Constitution. On the whole, the Constitution draws a thin, but,
nevertheless, distinct line between the PET and the Supreme Court.
If the logic of petitioner is to be followed, all Members of the Court, sitting in the Senate and
House Electoral Tribunals would violate the constitutional proscription found in Section 12,
Article VIII. Surely, the petitioner will be among the first to acknowledge that this is not so. The
Constitution which, in Section 17, Article VI, explicitly provides that three Supreme Court
Justices shall sit in the Senate and House Electoral Tribunals, respectively, effectively exempts
the Justices-Members thereof from the prohibition in Section 12, Article VIII. In the same vein,
it is the Constitution itself, in Section 4, Article VII, which exempts the Members of the Court,
constituting the PET, from the same prohibition.
We have previously declared that the PET is not simply an agency to which Members of the
Court were designated. Once again, the PET, as intended by the framers of the Constitution, is to
be an institution independent, but not separate, from the judicial department, i.e., the Supreme
Court. McCulloch v. State of Maryland
49
proclaimed that "[a] power without the means to use it,
is a nullity." The vehicle for the exercise of this power, as intended by the Constitution and
specifically mentioned by the Constitutional Commissioners during the discussions on the grant
of power to this Court, is the PET. Thus, a microscopic view, like the petitioners, should not
constrict an absolute and constitutional grant of judicial power.
One final note. Although this Court has no control over contrary people and naysayers, we
reiterate a word of caution against the filing of baseless petitions which only clog the Courts
docket. The petition in the instant case belongs to that classification.
WHEREFORE, the petition is DISMISSED. Costs against petitioner.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
ANTONIO T. CARPIO
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice
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
(On Official Leave)
MARIANO C. DEL CASTILLO
*

Associate Justice
ROBERTO A. ABAD
Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice
JOSE CATRAL MENDOZA
Associate Justice

Associate Justice

Associate Justice
MARIA LOURDES P.A. SERENO
Associate Justice
C E R T I F I C A T I O N
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.
RENATO C. CORONA
Chief Justice
EN BANC

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.
G.R. No. 162759

Present:

PANGANIBAN, C.J.,
PUNO,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO-MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA, and
VELASCO, JR., JJ.


Promulgated:
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

D 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
200380[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, 200381[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 82[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. 83[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., 84[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,85[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.86[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
OAVL87[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) Those who have lost their Filipino citizenship in accordance with
Philippine laws;

(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 88[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.89[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. 90[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 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 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,91[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; 92[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. 93[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; 94[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


WE CONCUR:



ARTEMIO V. PANGANIBAN
Chief Justice



REYNATO S. PUNO
Associate Justice



LEONARDO A. QUISUMBING
Associate Justice



CONSUELO YNARES-SANTIAGO
Associate Justice


ANGELINA SANDOVAL-GUTIERREZ
Associate Justice



ANTONIO T. CARPIO
Associate Justice



MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice




RENATO C. CORONA
Associate Justice




CONCHITA CARPIO MORALES
Associate Justice




ROMEO J. CALLEJO, SR.




ADOLFO S. AZCUNA
Associate Justice Associate Justice



DANTE O. TINGA
Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice



PRESBITERO J. VELASCO, JR.
Associate Justice


C E R T I F I C A T I O N


Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified
that the conclusions in the above decision were reached in consultation before
the case was assigned to the writer of the opinion of the Court.


ARTEMIO V. PANGANIBAN
Chief Justice
Republic of the Philippines
Supreme Court
Manila

EN BANC

EUSEBIO EUGENIO K. LOPEZ, G.R. No. 182701
Petitioner,
Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
- versus - CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.

COMMISSION ON ELECTIONS Promulgated:
and TESSIE P. VILLANUEVA,
Respondents. July 23, 2008

x -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

R E S O L U T I O N


REYES, R.T., J .:


A Filipino-American or any dual citizen cannot run for any elective public
position in the Philippines unless he or she personally swears to a renunciation of
all foreign citizenship at the time of filing the certificate of candidacy.


This is a petition for certiorari under Rule 65, in relation to Rule 64 of the
Rules on Civil Procedure assailing the (1) Resolution95[1] and (2) Omnibus
Order96[2] of the Commission on Elections (COMELEC), Second Division,
disqualifying petitioner from running as Barangay Chairman.






Petitioner Eusebio Eugenio K. Lopez was a candidate for the position of
Chairman of Barangay Bagacay, San Dionisio, Iloilo City in the synchronized
Barangay and Sangguniang Kabataan Elections held on October 29, 2007.

On October 25, 2007, respondent Tessie P. Villanueva filed a petition97[3]
before the Provincial Election Supervisor of the Province of Iloilo, praying for the
disqualification of petitioner on the ground that he is an American citizen, hence,
ineligible from running for any public office. In his Answer,98[4] petitioner argued
that he is a dual citizen, a Filipino and at the same time an American, by virtue of
Republic Act (R.A.) No. 9225, otherwise known as the Citizenship Retention and
Re-acquisition Act of 2003.99[5] He returned to the Philippines and resided in
Barangay Bagacay. Thus, he said, he possessed all the qualifications to run for
Barangay Chairman.








After the votes for Barangay Chairman were canvassed, petitioner emerged
as the winner.100[6]

On February 6, 2008, COMELEC issued the assailed Resolution granting the
petition for disqualification, disposing as follows:



WHEREFORE, premises considered, the instant Petition for Disqualification is
GRANTED and respondent Eusebio Eugenio K. Lopez is DISQUALIFIED from running as
Barangay Chairman of Barangay Bagacay, San Dionisio, Iloilo.

SO ORDERED.101[7]

In ruling against petitioner, the COMELEC found that he was not able to
regain his Filipino citizenship in the manner provided by law. According to the
poll body, to be able to qualify as a candidate in the elections, petitioner should





have made a personal and sworn renunciation of any and all foreign citizenship.
This, petitioner failed to do.

His motion for reconsideration having been denied, petitioner resorted to
the present petition, imputing grave abuse of discretion on the part of the
COMELEC for disqualifying him from running and assuming the office of Barangay
Chairman.

We dismiss the petition.

Relying on Valles v. Commission on Elections,102[8] petitioner argues that
his filing of a certificate of candidacy operated as an effective renunciation of
foreign citizenship.

We note, however, that the operative facts that led to this Courts ruling in
Valles are substantially different from the present case. In Valles, the candidate,
Rosalind Ybasco Lopez, was a dual citizen by accident of birth on foreign



soil.103[9] Lopez was born of Filipino parents in Australia, a country which
follows the principle of jus soli. As a result, she acquired Australian citizenship by
operation of Australian law, but she was also considered a Filipino citizen under
Philippine law. She did not perform any act to swear allegiance to a country other
than the Philippines.

In contrast, petitioner was born a Filipino but he deliberately sought
American citizenship and renounced his Filipino citizenship. He later on became a
dual citizen by re-acquiring Filipino citizenship.

More importantly, the Courts 2000 ruling in Valles has been superseded by
the enactment of R.A. No. 9225104[10] in 2003. R.A. No. 9225 expressly provides
for the conditions before those who re-acquired Filipino citizenship may run for a
public office in the Philippines. Section 5 of the said law states:

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:






x x x x

(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. (Emphasis added)

Petitioner re-acquired his Filipino citizenship under the cited law. This new
law explicitly provides that should one seek elective public office, he should first
make a personal and sworn renunciation of any and all foreign citizenship before
any public officer authorized to administer an oath.

Petitioner failed to comply with this requirement. We quote with approval
the COMELEC observation on this point:

While respondent was able to regain his Filipino Citizenship by virtue of the Dual
Citizenship Law when he took his oath of allegiance before the Vice Consul of the
Philippine Consulate Generals Office in Los Angeles, California, the same is not enough
to allow him to run for a public office. The above-quoted provision of law mandates
that a candidate with dual citizenship must make a personal and sworn renunciation of
any and all foreign citizenship before any public officer authorized to administer an
oath. There is no evidence presented that will show that respondent complied with
the provision of R.A. No. 9225. Absent such proof we cannot allow respondent to run
for Barangay Chairman of Barangay Bagacay.

For the renunciation to be valid, it must be contained in an affidavit duly executed
before an officer of law who is authorized to administer an oath. The affiant must state
in clear and unequivocal terms that he is renouncing all foreign citizenship for it to be
effective. In the instant case, respondent Lopezs failure to renounce his American
citizenship as proven by the absence of an affidavit that will prove the contrary leads
this Commission to believe that he failed to comply with the positive mandate of law.
For failure of respondent to prove that he abandoned his allegiance to the United
States, this Commission holds him disqualified from running for an elective position in
the Philippines.105[11] (Emphasis added)

While it is true that petitioner won the elections, took his oath and began
to discharge the functions of Barangay Chairman, his victory can not cure the
defect of his candidacy. Garnering the most number of votes does not validate
the election of a disqualified candidate because the application of the
constitutional and statutory provisions on disqualification is not a matter of
popularity.106[12]

In sum, the COMELEC committed no grave abuse of discretion in
disqualifying petitioner as candidate for Chairman in the Barangay elections of
2007.






WHEREFORE, the petition is DISMISSED.

SO ORDERED.




RUBEN T. REYES
Associate Justice


WE CONCUR:




REYNATO S. PUNO
Chief Justice




LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO
Associate Justice Associate Justice




ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice Associate Justice




RENATO C. CORONA CONCHITA CARPIO MORALES
Associate Justice Associate Justice




ADOLFO S. AZCUNA DANTE O. TINGA
Associate Justice Associate Justice





MINITA V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice




ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO
Associate Justice Associate Justice




ARTURO D. BRION
Associate Justice




C E R T I F I C A T I O N


Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Resolution had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.




REYNATO S. PUNO
Chief Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 195649 April 16, 2013
CASAN MACODE MAQUILING, Petitioner,
vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO y CAGOCO, LINOG G.
BALUA, Respondents.
D E C I S I O N
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 Resolution
1
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 Resolution
2
of the COMELEC
En Banc dated 2 February 2011 is being questioned for finding that respondent Rommel Arnado
y Cagoco (respondent Arnado/Arnado) is solely a Filipino citizen qualified to run for public
office despite his continued use of a U.S. passport.
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."
10
To further bolster his
claim of Arnados US citizenship, Balua presented in his Memorandum a computer-generated
travel record
11
dated 03 December 2009 indicating that Arnado has been using his US Passport
No. 057782700 in entering and departing the Philippines. The said record shows that Arnado left
the country on 14 April 2009 and returned on 25 June 2009, and again departed on 29 July 2009,
arriving back in the Philippines on 24 November 2009.
Balua likewise presented a certification from the Bureau of Immigration dated 23 April 2010,
certifying that the name "Arnado, Rommel Cagoco" appears in the available Computer
Database/Passenger manifest/IBM listing on file as of 21 April 2010, with the following
pertinent travel records:
DATE OF Arrival : 01/12/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 057782700
DATE OF Arrival : 03/23/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 057782700
12

On 30 April 2010, the COMELEC (First Division) issued an Order
13
requiring the respondent to
personally file his answer and memorandum within three (3) days from receipt thereof.
After Arnado failed to answer the petition, Balua moved to declare him in default and to present
evidence ex-parte.
Neither motion was acted upon, having been overtaken by the 2010 elections where Arnado
garnered the highest number of votes and was subsequently proclaimed as the winning candidate
for Mayor of Kauswagan, Lanao del Norte.
It was only after his proclamation that Arnado filed his verified answer, submitting the following
documents as evidence:
14

1. Affidavit of Renunciation and Oath of Allegiance to the Republic of the Philippines
dated 03 April 2009;
2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia Branzuela, Leoncio
Daligdig, and Jessy Corpin, all neighbors of Arnado, attesting that Arnado is a long-time
resident of Kauswagan and that he has been conspicuously and continuously residing in
his 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.
x x x x
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.
x x x x
The use of a US passport does not operate to revert back his status as a dual citizen prior to
his renunciation as there is no law saying such. More succinctly, the use of a US passport does
not operate to "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.
x x x x
The respondent presented a plausible explanation as to the use of his US passport. Although he
applied for a Philippine passport, the passport was only issued on June 18, 2009. However, he
was not notified of the issuance of his Philippine passport so that he was actually able to get it
about three (3) months later. Yet as soon as he was in possession of his Philippine passport, the
respondent already used the same in his subsequent travels abroad. This fact is proven by the
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
I ntervention 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. Manzano
28

clarified the right of intervention in a disqualification case. In that case, the Court said:
That petitioner had a right to intervene at that stage of the proceedings for the disqualification
against private respondent is clear from Section 6 of R.A. No. 6646, otherwise known as the
Electoral Reforms Law of 1987, which provides: Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest
and, upon motion of the complainant or any intervenor, may during the pendency thereof order
the suspension of the proclamation of such candidate whenever the evidence of guilt is strong.
Under this provision, intervention may be allowed in proceedings for disqualification even after
election if there has yet been no final judgment rendered.
29

Clearly then, Maquiling has the right to intervene in the case. The fact that the COMELEC En
Banc has already ruled that Maquiling has not shown that the requisites for the exemption to the
second-placer rule set forth in Sinsuat v. COMELEC
30
are present and therefore would not be
prejudiced by the outcome of the case, does not deprive Maquiling of the right to elevate the
matter before this Court.
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:
x x x x
(2)Those seeking elective public in the Philippines shall meet the qualification for holding such
public office as required by the Constitution 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 x
31

Rommel Arnado took all the necessary steps to qualify to run for a public office. He took the
Oath of Allegiance and renounced his foreign citizenship. There is no question that after
performing these twin requirements required under Section 5(2) of R.A. No. 9225 or the
Citizenship Retention and Re-acquisition Act of 2003, he became eligible to run for public
office.
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. Manzano
34
already hinted at this situation when the Court declared:
His declarations will be taken upon the faith that he will fulfill his undertaking made under oath.
Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine
citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, we
sustained the denial of entry into the country of petitioner on the ground that, after taking his
oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared
in commercial documents executed abroad that he was a Portuguese national. A similar sanction
can be taken against anyone who, in electing Philippine citizenship, renounces his foreign
nationality, but subsequently does some act constituting renunciation of his Philippine
citizenship.
While the act of using a foreign passport is not one of the acts enumerated in Commonwealth
Act No. 63 constituting renunciation and loss of Philippine citizenship,
35
it is nevertheless an act
which repudiates the very oath of renunciation required for a former Filipino citizen who is also
a citizen of another country to be qualified to run for a local elective position.
When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced his
American citizenship, he recanted his Oath of Renunciation
36
that he "absolutely and perpetually
renounce(s) all allegiance and fidelity to the UNITED STATES OF AMERICA"
37
and that he
"divest(s) 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. Paredes
45
which is the jurisprudential
spring of the principle that a second-placer cannot be proclaimed as the winner in an election
contest. This doctrine must be re-examined and its soundness once again put to the test to
address the ever-recurring issue that a second-placer who loses to an ineligible candidate cannot
be proclaimed as the winner in the elections.
The Facts of the case are as follows:
On June 4, 1912, a general election was held in the town of Imus, Province of Cavite, to fill the
office of municipal president. The petitioner, Felipe Topacio, and the respondent, Maximo Abad,
were opposing candidates for that office. Topacio received 430 votes, and Abad 281. Abad
contested the election upon the sole ground that Topacio was ineligible in that he was reelected
the second time to the office of the municipal president on June 4, 1912, without the four years
required by Act No. 2045 having intervened.
46

Abad thus questioned the eligibility of 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. COMELEC
50
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. COMELEC
52
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. COMELEC
54
and Jalosjos v. COMELEC
55
that a
void COC cannot produce any legal effect.
Thus, the votes cast in favor of the ineligible candidate are not considered at all in determining
the winner of an election.
Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still
respected, and even more so. The votes cast in favor of an ineligible candidate do not constitute
the sole and total expression of the sovereign voice. The votes cast in favor of eligible and
legitimate candidates form part of that voice and must also be respected.
As in any contest, elections are governed by rules that determine the qualifications and
disqualifications of those who are allowed to participate as players. When there are participants
who turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank
who does not possess any of the disqualifications nor lacks any of the qualifications set in the
rules to be eligible as candidates.
There is no need to apply the rule cited in Labo v. COMELEC
56
that when the voters are well
aware within the realm of notoriety of a 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 MARTIN S. VILLARAMA, JR.
Associate Justice 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
C E R T I F I C A T I O N
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