EN BANC

[G.R. No. 90336. August 12, 1991.]

RUPERTO TAULE, petitioner, vs. SECRETARY LUIS T. SANTOS and
GOVERNOR LEANDRO VERCELES, respondents.

Balgos & Perez and Bugaring, Tugonon & Associates Law Offices for petitioner.
Juan G. Atencia for private respondent.
SYLLABUS
1. ADMINISTRATIVE LAW; ELECTION LAW; COMMISSION ON ELECTIONS; JURISDICTION OVER
ELECTIVE BARANGAY OFFICIALS LIMITED TO APPELLATE JURISDICTION FROM DECISIONS OF
THE TRIAL COURTS. The jurisdiction of the COMELEC over contests involving elective
barangay officials is limited to appellate jurisdiction from decisions of the trial courts. Under the
law, the sworn petition contesting the election of a barangay officer shall be filed with the proper
Municipal or Metropolitan Trial Court by any candidate who has duly filed a certificate of
candidacy and has been voted for the same office within 10 days after the proclamation of the
results. A voter may also contest the election of any barangay officer on the ground of ineligibility
or of disloyalty to the Republic of the Philippines by filing a sworn petition for quo warranto with
the Metropolitan or Municipal Trial Court within 10 days after the proclamation of the results of
the elections. Only appeals from decisions of inferior courts on election matters as aforestated
may be decided by the COMELEC.
2. ID.; ID.; ID.; JURISDICTION OVER POPULAR ELECTIONS, CONSTRUED. The jurisdiction of
the COMELEC is over popular elections, the elected officials of which are determined through the
will of the electorate. An election is the embodiment of the popular will, the expression of the
sovereign power of the people. It involves the choice or selection of candidates to public office by
popular vote. Specifically, the term "election," in the context of the Constitution, may refer to the
conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the
casting and counting of the votes which do not characterize the election of officers in the
katipunan ng mga barangay. "Election contests" would refer to adversary proceedings by which
matters involving the title or claim of title to an elective office, made before or after proclamation
of the winner, is settled whether or not the contestant is claiming the office in dispute and in the
case of elections of barangay officials, it is restricted to proceedings after the proclamation of the
winners as no pre-proclamation controversies are allowed.

3. ID.; ID.; ID.; JURISDICTION OF THE COMELEC DOES NOT COVER PROTESTS OVER THE
ORGANIZATIONAL SET-UP OF THE KATIPUNAN NG MGA BARANGAY. The jurisdiction of the
COMELEC does not cover protests over the organizational set-up of the katipunan ng mga
barangay composed of popularly elected punong barangays as prescribed by law whose officers
are voted upon by their respective members. The authority of the COMELEC over the katipunan
ng mga barangay is limited by law to supervision of the election of the representative of the
katipunan concerned to the sanggunian in a particular level conducted by their own respective
organization.
4. ID.; ID.; SECRETARY OF LOCAL GOVERNMENT; WITHOUT JURISDICTION TO ENTERTAIN
PROTESTS INVOLVING THE ELECTION OF OFFICERS OF THE FABC. The Secretary of Local
Government is not vested with jurisdiction to entertain any protest involving the election of
officers of the FABC. There is no question that he is vested with the power to promulgate rules
and regulations as set forth in Section 222 of the Local Government Code. Likewise, under Book
IV, Title XII, Chapter 1, Sec. 3(2) of the Administrative Code of 1987, the respondent Secretary
has the power to "establish and prescribe rules, regulations and other issuances and
implementing laws on the general supervision of local government units and on the promotion of
local autonomy and monitor compliance thereof by said units." Also, the respondent Secretary's
rule making power is provided in Sec. 7, Chapter II, Book IV of the Administrative Code. Thus,
DLG Circular No. 89-09 was issued by respondent Secretary in pursuance of his rule-making
power conferred by law and which now has the force and effect of law. It is a well-settled
principle of administrative law that unless expressly empowered, administrative agencies are
bereft of quasi-judicial powers. The jurisdiction of administrative authorities is dependent entirely
upon the provisions of the statutes reposing power in them; they cannot confer it upon
themselves. Such jurisdiction is essential to give validity to their determinations. There is neither
a statutory nor constitutional provision expressly or even by necessary implication conferring
upon the Secretary of Local Government the power to assume jurisdiction over an election
protest involving officers of the katipunan ng mga barangay. cdasia
5. ID.; GENERAL SUPERVISION OF THE CHIEF EXECUTIVE; CONCEPT. Presidential power over
local governments is limited by the Constitution to the exercise of general supervision "to ensure
that local affairs are administered according to law." The general supervision is exercised by the
President through the Secretary of Local Government. In administrative law, supervision means
overseeing or the power or authority of an officer to see that the subordinate officers perform
their duties. If the latter fails or neglects to fulfill them the former may take such action or step
as prescribed by law to make them perform their duties. Control, on the other hand, means the
power of an officer to alter or modify or nullify or set aside what a subordinate officer had done
in the performance of his duties and to substitute the judgment of the former for that of the
latter. The fundamental law permits the Chief Executive to wield no more authority than that of
checking whether said local government or the officers thereof perform their duties as provided
by statutory enactments. Hence, the President cannot interfere with local governments so long as
the same or its officers act within the scope of their authority. Supervisory power, when

contrasted with control, is the power of mere oversight over an inferior body; it does not include
any restraining authority over such body.

of the parties is to the ordinary courts. The Regional Trial Courts have the exclusive original
jurisdiction to hear the protest.

6. ID.; ID.; CONSTITUTIONAL LIMITATION DEPRIVES SECRETARY OF LOCAL GOVERNMENT

AUTHORITY TO PASS UPON VALIDITY OR REGULARITY OF THE ELECTION OF THE OFFICERS
OF THE KATIPUNAN. Construing the constitutional limitation on the power of general
supervision of the President over local governments, We hold that respondent Secretary has no
authority to pass upon the validity or regularity of the election of the officers of the katipunan. To
allow respondent Secretary to do so will give him more power than the law or the Constitution
grants. It will in effect give him control over local government officials for it will permit him to
interfere in a purely democratic and non-partisan activity aimed at strengthening the barangay as
the basic component of local governments so that the ultimate goal of fullest autonomy may be
achieved. In fact, his order that the new elections to be conducted be presided by the Regional
Director is a clear and direct interference by the Department with the political affairs of the
barangays which is not permitted by the limitation of presidential power to general supervision
over local governments.

10. ID.; LOCAL GOVERNMENT; CIRCULARS AND REGULATIONS ISSUED BY THE SECRETARY OF
LOCAL GOVERNMENT; CANNOT BE APPLIED RETROACTIVELY. The provision in DLG Circular
No. 89-15 amending DLG Circular No. 89-09 which states that "whenever the guidelines are not
substantially complied with, the election shall be declared null and void by the Department of
Local Government and an election shall conduct anew," being invoked by the Solicitor General
cannot be applied. DLG Circular No. 89-15 was issued on July 3, 1989 after the June 18, 1989
elections of the FABC officers and it is the rule in statutory construction that laws, including
circulars and regulations, cannot be applied retrospectively. Moreover, such provision is null and
void for having been issued in excess of the respondent Secretary's jurisdiction, inasmuch as an
administrative authority cannot confer jurisdiction upon itself.

7. ID.; AUTONOMY OF LOCAL GOVERNMENTS; STATE POLICY REFLECTED IN LOCAL

GOVERNMENT CODE. It is the policy of the state to ensure the autonomy of local
governments. This state policy is echoed in the Local Government Code wherein it is declared
that "the State shall guarantee and promote the autonomy of local government units to ensure
their fullest development as self-reliant communities and make them more effective partners in
the pursuit of national development and social progress." To deny the Secretary of Local
Government the power to review the regularity of the elections of officers of the katipunan would
be to enhance the avowed state policy of promoting the autonomy of local governments.
8. ID.; ID.; DOUBT AS TO THE POWER OF SECRETARY OF LOCAL GOVERNMENT TO INTERFERE
WITH LOCAL AFFAIRS, RESOLVED IN FAVOR OF GREATER AUTONOMY OF LOCAL
GOVERNMENT. Although the Department is given the power to prescribe rules, regulations
and other issuances, the Administrative Code limits its authority to merely "monitoring
compliance" by local government units of such issuances. To monitor means to "watch, observe
or check." Even the Local Government Code which grants the Secretary power to issue
implementing circulars, rules and regulations is silent as to how these issuances should be
enforced. Since the respondent Secretary exercises only supervision and not control over local
governments, it is truly doubtful if he could enforce compliance with the DLG Circular. Any doubt
therefore as to the power of the Secretary to interfere with local affairs should be resolved in
favor of the greater autonomy of the local government.
9. ID.; ELECTION PROTEST IN THE ELECTION OF THE OFFICERS OF THE FABC; REGIONAL
TRIAL COURTS ACCORDED EXCLUSIVE ORIGINAL JURISDICTION. The respondent Secretary
not having the jurisdiction to hear an election protest involving officers of the FABC, the recourse

11. ID.; ID.; GOVERNOR, PROPER PARTY TO FILE ELECTION PROTEST OVER ELECTION OF
OFFICERS OF FABC. Under Section 205 of the Local Government Code, the membership of the
sangguniang panlalawigan consists of the governor, the vice-governor, elective members of the
said sanggunian, and the presidents of the katipunang panlalawigan and the kabataang barangay
provincial federation. The governor acts as the presiding officer of the sangguniang panlalawigan.
As presiding officer of the sangguniang panlalawigan, the respondent governor has an interest in
the election of the officers of the FABC since its elected president becomes a member of the
assembly. If the president of the FABC assumes his presidency under questionable circumstances
and is allowed to sit in the sangguniang panlalawigan, the official actions of the sanggunian may
be vulnerable to attacks as to their validity or legality. Hence, respondent governor is a proper
party to question the regularity of the elections of the officers of the FABC.
12. ID.; ID.; ELECTIONS OF THE OFFICERS OF THE FABC; NULLIFICATION FOR FAILURE TO
COMPLY WITH DLG CIRCULAR NO. 89-09. Section 2.4 of DLG Circular No. 89-09 provides that
"the incumbent FABC President or the Vice-President shall preside over the reorganizational
meeting, there being a quorum." The rule specifically provides that it is the incumbent FABC
President or Vice-President who shall preside over the meeting. The word "shall" should be taken
in its ordinary signification, i.e., it must be imperative or mandatory and not merely permissive,
as the rule is explicit and requires no other interpretation. If it had been intended that any other
official should preside, the rules would have provided so, as it did in the elections at the town
and city levels as well as the regional level. It is admitted that neither the incumbent FABC
President nor the Vice-President presided over the meeting and elections but Alberto P. Molina,
Jr., the Chairman of the Board of Election Supervisors/Consultants. Thus, there was a clear
violation of the aforesaid mandatory provision. On this ground, the election should be nullified.

13. ID.; ID.; APPOINTEES TO THE SANGGUNIANG PANLUNGSOD; QUALIFICATIONS SET BY

LAW; SHOULD BE MET. In Ignacio vs. Banate, J. the Court, interpreting similarly worded
provisions of Batas Pambansa Blg. 337 and Batas Pambansa Blg. 51 on the composition of the
sangguniang panlungsod, declared as null and void the appointment of private respondent
Leoncio Banate, Jr. as member of the Sangguniang Panlungsod of the City of Roxas representing
the katipunang panlungsod ng mga barangay for he lacked the eligibility and qualification
required by law, not being a barangay captain and for not having been elected president of the
association of barangay councils. The Court held that an unqualified person cannot be appointed
a member of the sanggunian, even in an acting capacity. In Reyes vs. Ferrer, the appointment of
Nemesio L. Rasgo, Jr. as representative of the youth sector to the sangguniang panlungsod of
Davao City was declared invalid since he was never the president of the kabataang barangay city
federation as required by Sec. 173, Batas Pambansa Blg. 337. cda
14. ID.; ID.; APPOINTEES TO THE SANGGUNIANG PANLALAWIGAN; QUALIFICATIONS SET BY
LAW SHOULD ALSO BE MET. Involving the sangguniang panlalawigan, the law is likewise
explicit. To be appointed by the President of the Philippines to sit in the sangguniang
panlalawigan is the president of the katipunang panlalawigan. The appointee must meet the
qualifications set by law. The appointing power is bound by law to comply with the requirements
as to the basic qualifications of the appointee to the sangguniang panlalawigan. The President of
the Philippines or his alter ego, the Secretary of Local Government, has no authority to appoint
anyone who does not meet the minimum qualification to be the president of the federation of
barangay councils. Augusto Antonio is not the president of the federation. He is a member of the
federation but he was not even present during the elections despite notice. The argument that
Antonio was appointed as a remedial measure in the exigency of the service cannot be sustained.
Since Antonio does not meet the basic qualification of being president of the federation, his
appointment to the sangguniang panlalawigan is not qualified notwithstanding that such
appointment is merely in a temporary capacity. If the intention of the respondent Secretary was
to protect the interests of the federation in the sanggunian, he should have appointed the
incumbent FABC President in a hold-over capacity. The appointment of Antonio, allegedly the
protege of respondent Governor, gives credence to petitioner's charge of political interference by
respondent Governor in the organization. This should not be allowed. The barangays should be
insulated from any partisan activity or political intervention if only to give true meaning to local
autonomy.

DECISION

GANCAYCO, J p:

The extent of authority of the Secretary of Local Government over the katipunan ng mga
barangay or the barangay councils is brought to the fore in this case.
On June 18, 1989, the Federation of Associations of Barangay Councils (FABC) of Catanduanes,
composed of eleven (11) members, in their capacities as Presidents of the Association of
Barangay Councils in their respective municipalities, convened in Virac, Catanduanes with six
members in attendance for the purpose of holding the election of its officers.
Present were petitioner Ruperto Taule of San Miguel, Allan Aquino of Viga, Vicente Avila of Virac,
Fidel Jacob of Panganiban, Leo Sales of Caramoran and Manuel Torres of Baras. The Board of
Election Supervisors/Consultants was composed of Provincial Government Operation Officer
(PGOO) Alberto P. Molina, Jr. as Chairman with Provincial Treasurer Luis A. Manlapaz, Jr. and
Provincial Election Supervisor Arnold Soquerata as members. LLpr
When the group decided to hold the election despite the absence of five (5) of its members, the
Provincial Treasurer and the Provincial Election Supervisor walked out.
The election nevertheless proceeded with PGOO Alberto P. Molina, Jr. as presiding officer.
Chosen as members of the Board of Directors were Taule, Aquino, Avila, Jacob and Sales.
Thereafter, the following were elected officers of the FABC:
President - Ruperto Taule
Vice-President - Allan Aquino
Secretary - Vicente Avila
Treasurer - Fidel Jacob
Auditor - Leo Sales 1
On June 19, 1989, respondent Leandro I. Verceles, Governor of Catanduanes, sent a letter to
respondent Luis T. Santos, the Secretary of Local Government, * protesting the election of the
officers of the FABC and seeking its nullification in view of several flagrant irregularities in the
manner it was conducted. 2
In compliance with the order of respondent Secretary, petitioner Ruperto Taule as President of
the ABC, filed his comment on the letter-protest of respondent Governor denying the alleged
irregularities and denouncing said respondent Governor for meddling or intervening in the
election of FABC officers which is a purely non-partisan affair and at the same time requesting for
his appointment as a member of the Sangguniang Panlalawigan of the province being the duly
elected President of the FABC in Catanduanes. 3
On August 4, 1989, respondent Secretary issued a resolution nullifying the election of the officers
of the FABC in Catanduanes held on June 18, 1989 and ordering a new one to be conducted as

early as possible to be presided by the Regional Director of Region V of the Department of Local
Government. 4

panlalawigan. The katipunang panlungsod and the katipunang bayan shall be

composed of the punong barangays of cities and municipalities, respectively.

Petitioner filed a motion for reconsideration of the resolution of August 4, 1989 but it was denied
by respondent Secretary in his resolution of September 5, 1989. 5

xxx xxx xxx."

In the petition for certiorari before Us, petitioner seeks the reversal of the resolutions of
respondent Secretary dated August 4, 1989 and September 5, 1989 for being null and void.
Petitioner raises the following issues:
1) Whether or not the respondent Secretary has jurisdiction to entertain an
election protest involving the election of the officers of the Federation of
Association of Barangay Councils;
2) Whether or not the respondent Governor has the legal personality to file an
election protest;
3) Assuming that the respondent Secretary has jurisdiction over the election
protest, whether or not he committed grave abuse of discretion amounting to
lack of jurisdiction in nullifying the election;
The Katipunan ng mga Barangay is the organization of all sangguniang barangays in the
following levels: in municipalities to be known as katipunang bayan; in cities, katipunang
panlungsod; in provinces, katipunang panlalawigan; in regions, katipunang pampook; and on the
national level, katipunan ng mga barangay. 6
The Local Government Code provides for the manner in which the katipunan ng mga barangay at
all levels shall be organized:
"SECTION 110. Organization. (l) The katipunan at all levels shall be
organized in the following manner:
(a) The katipunan in each level shall elect a board of directors and a set of
officers. The president of each level shall represent the katipunan concerned in
the next higher level of organization.
(b) The katipunan ng mga barangay shall be composed of the katipunang
pampook, which shall in turn be composed of the presidents of the katipunang
panlalawigan and the katipunang panlungsod. The presidents of the
katipunang bayan in each province shall constitute the katipunang

The respondent Secretary, acting in accordance with the provision of the Local Government Code
empowering him to "promulgate in detail the implementing circulars and the rules and
regulations to carry out the various administrative actions required for the initial implementation
of this Code in such a manner as will ensure the least disruption of on-going programs and
project," 7 issued Department of Local Government Circular No. 89-09 on April 7, 1989, 8 to
provide the guidelines for the conduct of the elections of officers of the Katipunan ng mga
Barangay at the municipal, city, provincial, regional and national levels.

It is now the contention of petitioner that neither the constitution nor the law grants jurisdiction
upon the respondent Secretary over election contests involving the election of officers of the
FABC, the katipunan ng mga barangay at the provincial level. It is petitioner's theory that under
Article IX, C, Section 2 of the 1987 Constitution, it is the Commission on Elections which has
jurisdiction over all contests involving elective barangay officials.
On the other hand, it is the opinion of the respondent Secretary that any violation of the
guidelines as set forth in said circular would be a ground for filing a protest and would vest upon
the Department jurisdiction to resolve any protest that may be filed in relation thereto.
Under Article IX, C, Section 2(2) of the 1987 Constitution, the Commission on Elections shall
exercise "exclusive original jurisdiction over all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over
all contests involving elective municipal officials decided by trial courts of general jurisdiction, or
involving elective barangay officials decided by trial courts of limited jurisdiction." The 1987
Constitution expanded the jurisdiction of the COMELEC by granting it appellate jurisdiction over
all contests involving elective municipal officials decided by trial courts of general jurisdiction or
elective barangay officials decided by trial courts of limited jurisdiction. 9
The jurisdiction of the COMELEC over contests involving elective barangay officials is limited to
appellate jurisdiction from decisions of the trial courts. Under the law, 10 the sworn petition
contesting the election of a barangay officer shall be filed with the proper Municipal or
Metropolitan Trial Court by any candidate who has duly filed a certificate of candidacy and has
been voted for the same office within 10 days after the proclamation of the results. A voter may
also contest the election of any barangay officer on the ground of ineligibility or of disloyalty to
the Republic of the Philippines by filing a sworn petition for quo warranto with the Metropolitan
or Municipal Trial Court within 10 days after the proclamation of the results of the election. 11

Only appeals from decisions of inferior courts on election matters as aforestated may be decided
by the COMELEC.

Thus, DLG Circular No. 89-09 was issued by respondent Secretary in pursuance of his rulemaking power conferred by law and which now has the force and effect of law. 18

The Court agrees with the Solicitor General that the jurisdiction of the COMELEC is over popular
elections, the elected officials of which are determined through the will of the electorate. An
election is the embodiment of the popular will, the expression of the sovereign power of the
people. 12 It involves the choice or selection of candidates to public office by popular vote. 13
Specifically, the term "election," in the context of the Constitution, may refer to the conduct of
the polls, including the listing of voters, the holding of the electoral campaign, and the casting
and counting of the votes 14 which do not characterize the election of officers in the Katipunan
ng mga barangay. "Election contests" would refer to adversary proceedings by which matters
involving the title or claim of title to an elective office, made before or after proclamation of the
winner, is settled whether or not the contestant is claiming the office in dispute 15 and in the
case of elections of barangay officials, it is restricted to proceedings after the proclamation of the
winners as no pre-proclamation controversies are allowed. 16

Now the question that arises is whether or not a violation of said circular vests jurisdiction upon
the respondent Secretary, as claimed by him, to hear a protest filed in relation thereto and
consequently declare an election null and void.

The jurisdiction of the COMELEC does not cover protests over the organizational set-up of the
katipunan ng mga barangay composed of popularly elected punong barangays as prescribed by
law whose officers are voted upon by their respective members. The COMELEC exercises only
appellate jurisdiction over election contests involving elective barangay officials decided by the
Metropolitan or Municipal Trial Courts which likewise have limited jurisdiction. The authority of
the COMELEC over the katipunan ng mga barangay is limited by law to supervision of the election
of the representative of the katipunan concerned to the sanggunian in a particular level
conducted by their own respective organization. 17
However, the Secretary of Local Government is not vested with jurisdiction to entertain any
protest involving the election of officers of the FABC.
There is no question that he is vested with the power to promulgate rules and regulations as set
forth in Section 222 of the Local Government Code.
Likewise, under Book IV, Title XII, Chapter 1, Sec. 3(2) of the Administrative Code of 1987, **
the respondent Secretary has the power to "establish and prescribe rules, regulations and other
issuances and implementing laws on the general supervision of local government units and on
the promotion of local autonomy and monitor compliance thereof by said units."
Also, the respondent Secretary's rule making power is provided in Sec. 7, Chapter II, Book IV of
the Administrative Code, to wit:
"(3) Promulgate rules and regulations necessary to carry out department
objectives, policies, functions, plans, programs and projects;"

It is a well-settled principle of administrative law that unless expressly empowered, administrative

agencies are bereft of quasi-judicial powers. 19 The jurisdiction of administrative authorities is
dependent entirely upon the provisions of the statutes reposing power in them; they cannot
confer it upon themselves. 20 Such jurisdiction is essential to give validity to their determinations.
21
There is neither a statutory nor constitutional provision expressly or even by necessary
implication conferring upon the Secretary of Local Government the power to assume jurisdiction
over an election protest involving officers of the katipunan ng mga barangay. An understanding
of the extent of authority of the Secretary over local governments is therefore necessary if We
are to resolve the issue at hand.
Presidential power over local governments is limited by the Constitution to the exercise of general
supervision 22 "to ensure that local affairs are administered according to law." 23 The general
supervision is exercised by the President through the Secretary of Local Government. 24
In administrative law, supervision means overseeing or the power or authority of an officer to see
that the subordinate officers perform their duties. If the latter fails or neglects to fulfill them the
former may take such action or step as prescribed by law to make them perform their duties.
Control, on the other hand, means the power of an officer to alter or modify or nullify or set
aside what a subordinate officer had done in the performance of his duties and to substitute the
judgment of the former for that of the latter. The fundamental law permits the Chief Executive to
wield no more authority than that of checking whether said local government or the officers
thereof perform their duties as provided by statutory enactments. Hence, the President cannot
interfere with local governments so long as the same or its officers act within the scope of their
authority. 25 Supervisory power, when contrasted with control, is the power of mere oversight
over an inferior body; it does not include any restraining authority over such body. 26
Construing the constitutional limitation on the power of general supervision of the President over
local governments, We hold that respondent Secretary has no authority to pass upon the validity
or regularity of the election of the officers of the katipunan. To allow respondent Secretary to do
so will give him more power than the law or the Constitution grants. It will in effect give him
control over local government officials for it will permit him to interfere in a purely democratic
and non-partisan activity aimed at strengthening the barangay as the basic component of local
governments so that the ultimate goal of fullest autonomy may be achieved. In fact, his order

that the new elections to be conducted be presided by the Regional Director is a clear and direct
interference by the Department with the political affairs of the barangays which is not permitted
by the limitation of presidential power to general supervision over local governments. 27
Indeed, it is the policy of the state to ensure the autonomy of local governments. 28 This state
policy is echoed in the Local Government Code wherein it is declared that "the State shall
guarantee and promote the autonomy of local government units to ensure their fullest
development as self-reliant communities and make them more effective partners in the pursuit of
national development and social progress." 29 To deny the Secretary of Local Government the
power to review the regularity of the elections of officers of the katipunan would be to enhance
the avowed state policy of promoting the autonomy of local governments.
Moreover, although the Department is given the power to prescribe rules, regulations and other
issuances, the Administrative Code limits its authority to merely "monitoring compliance" by local
government units of such issuances. 30 To monitor means "to watch, observe or check." 31 This
is compatible with the power of supervision of the Secretary over local governments which as
earlier discussed is limited to checking whether the local government unit concerned or the
officers thereof perform their duties as provided by statutory enactments. Even the Local
Government Code which grants the Secretary power to issue implementing circulars, rules and
regulations is silent as to how these issuances should be enforced. Since the respondent
Secretary exercises only supervision and not control over local governments, it is truly doubtful if
he could enforce compliance with the DLG Circular. 32 Any doubt therefore as to the power of
the Secretary to interfere with local affairs should be resolved in favor of the greater autonomy of
the local government.

Thus, the Court holds that in assuming jurisdiction over the election protest filed by respondent
Governor and declaring the election of the officers of the FABC on June 18, 1989 as null and
void, the respondent Secretary acted in excess of his jurisdiction. The respondent Secretary not
having the jurisdiction to hear an election protest involving officers of the FABC, the recourse of
the parties is to the ordinary courts. The Regional Trial Courts have the exclusive original
jurisdiction to hear the protest. 33
The provision in DLG Circular No. 89-15 amending DLG Circular No. 89-09 which states that
"whenever the guidelines are not substantially complied with, the election shall be declared null
and void by the Department of Local Government and an election shall conduct anew," being
invoked by the Solicitor General cannot be applied. DLG Circular No. 89-15 was issued on July 3,
1989 after the June 18, 1989 elections of the FABC officers and it is the rule in statutory
construction that laws, including circulars and regulations, 34 cannot be applied retrospectively.
35 Moreover, such provision is null and void for having been issued in excess of the respondent

Secretary's jurisdiction, inasmuch as an administrative authority cannot confer jurisdiction upon

itself.
As regards the second issue raised by petitioner, the Court finds that respondent Governor has
the personality to file the protest. Under Section 205 of the Local Government Code, the
membership of the sangguniang panlalawigan consists of the governor, the vice-governor,
elective members of the said sanggunian, and the presidents of the katipunang panlalawigan and
the kabataang barangay provincial federation. The governor acts as the presiding officer of the
sangguniang panlalawigan. 36
As presiding officer of the sangguniang panlalawigan, the respondent governor has an interest in
the election of the officers of the FABC since its elected president becomes a member of the
assembly. If the president of the FABC assumes his presidency under questionable circumstances
and is allowed to sit in the sangguniang panlalawigan, the official actions of the sanggunian may
be vulnerable to attacks as to their validity or legality. Hence, respondent governor is a proper
party to question the regularity of the elections of the officers of the FABC.
As to the third issue raised by petitioner, the Court has already ruled that the respondent
Secretary has no jurisdiction to hear the protest and nullify the elections.
Nevertheless, the Court holds that the issue of the validity of the elections should now be
resolved in order to prevent any unnecessary delay that may result from the commencement of
an appropriate action by the parties.
The elections were declared null and void primarily for failure to comply with Section 2.4 of DLG
Circular No. 89-09 which provides that "the incumbent FABC President or the Vice-President shall
preside over the reorganizational meeting, there being a quorum." The rule specifically provides
that it is the incumbent FABC President or Vice-President who shall preside over the meeting. The
word "shall" should be taken in its ordinary signification, i.e., it must be imperative or mandatory
and not merely permissive, 37 as the rule is explicit and requires no other interpretation. If it had
been intended that any other official should preside, the rules would have provided so, as it did
in the elections at the town and city levels 38 as well as the regional level. 39
It is admitted that neither the incumbent FABC President nor the Vice-President presided over the
meeting and elections but Alberto P. Molina, Jr., the Chairman of the Board of Election
Supervisors/Consultants. Thus, there was a clear violation of the aforesaid mandatory provision.
On this ground, the elections should be nullified.
Under Sec. 2.3.2.7 of the same circular it is provided that a
Supervisors/Consultants shall be constituted to oversee and or witness the
and proclamation of winners. The rules confine the role of the
Supervisors/Consultants to merely overseeing and witnessing the conduct

Board of Election
canvassing of votes
Board of Election
of elections. This is

consistent with the provision in the Local Government Code limiting the authority of the
COMELEC to the supervision of the election. 40
In case at bar, PGOO Molina, the Chairman of the Board, presided over the elections. There was
direct participation by the Chairman of the Board in the elections contrary to what is dictated by
the rules. Worse, there was no Board of Election Supervisors to oversee the elections in view of
the walk out staged by its two other members, the Provincial COMELEC Supervisor and the
Provincial Treasurer. The objective of keeping the election free and honest was therefore
compromised.
The Court therefore finds that the election of officers of the FABC held on June 18, 1989 is null
and void for failure to comply with the provisions of DLG Circular No. 89-09.
Meanwhile, pending resolution of this petition, petitioner filed a supplemental petition alleging
that public respondent Local Government Secretary, in his memorandum dated June 7, 1990,
designated Augusto Antonio as temporary representative of the Federation to the sangguniang
panlalawigan of Catanduanes. 41 By virtue of this memorandum, respondent governor swore into
said office Augusto Antonio on June 14, 1990. 42
The Solicitor General filed his comment on the supplemental petition 43 as required by the
resolution of the Court dated September 13, 1990.
In his comment, the Solicitor General dismissed the supervening event alleged by petitioner as
something immaterial to the petition. He argues that Antonio's appointment was merely
temporary "until such time that the provincial FABC president in that province has been elected,
appointed and qualified." 44 He stresses that Antonio's appointment was only a remedial
measure designed to cope with the problems brought about by the absence of a representative
of the FABC to the "sangguniang panlalawigan."
Sec. 205 (2) of the Local Government Code (B.P. Blg. 337) provides
"(2) The sangguniang panlalawigan shall be composed of the governor, the
vice-governor, elective members of the said sanggunian, and the presidents of
the katipunang panlalawigan and the kabataang barangay provincial federation
who shall be appointed by the President of the Philippines." (Emphasis
supplied.)
Batas Pambansa Blg. 51, under Sec. 2 likewise states:
"xxx xxx xxx

The sangguniang panlalawigan of each province shall be composed of the

governor as chairman and presiding officer, the vice-governor as presiding
officer pro tempore, the elective sangguniang panlalawigan members, and the
appointive members consisting of the president of the provincial association of
barangay councils, and the president of the provincial federation of the
kabataang barangay." (Emphasis supplied.)
In Ignacio vs. Banate, Jr. 45 the Court, interpreting similarly worded provisions of Batas
Pambansa Blg. 337 and Batas Pambansa Blg. 51 on the composition of the sangguniang
panlungsod, 46 declared as null and void the appointment of private respondent Leoncio Banate,
Jr. as member of the Sangguniang Panlungsod of the City of Roxas representing the katipunang
panlungsod ng mga barangay for he lacked the eligibility and qualification required by law, not
being a barangay captain and for not having been elected president of the association of
barangay councils. The Court held that an unqualified person cannot be appointed a member of
the sanggunian, even in an acting capacity. In Reyes vs. Ferrer, 47 the appointment of Nemesio
L. Rasgo, Jr. as representative of the youth sector to the sangguniang panlungsod of Davao City
was declared invalid since he was never the president of the kabataang barangay city federation
as required by Sec. 173, Batas Pambansa Blg 337.
In the present controversy involving the sangguniang panlalawigan, the law is likewise explicit.
To be appointed by the President of the Philippines to sit in the sangguniang panlalawigan is the
president of the katipunang panlalawigan. The appointee must meet the qualifications set by law.
48 The appointing power is bound by law to comply with the requirements as to the basic
qualifications of the appointee to the sangguniang panlalawigan. The President of the Philippines
or his alter ego, the Secretary of Local Government, has no authority to appoint anyone who
does not meet the minimum qualification to be the president of the federation of barangay
councils.
Augusto Antonio is not the president of the federation. He is a member of the federation but he
was not even present during the elections despite notice. The argument that Antonio was
appointed as a remedial measure in the exigency of the service cannot be sustained. Since
Antonio does not meet the basic qualification of being president of the federation, his
appointment to the sangguniang panlalawigan is not justified notwithstanding that such
appointment is merely in a temporary capacity. If the intention of the respondent Secretary was
to protect the interest of the federation in the sanggunian, he should have appointed the
incumbent FABC President in a hold-over capacity. For even under the guidelines, the term of
office of officers of the katipunan at all levels shall be from the date of their election until their
successors shall have been duly elected and qualified, without prejudice to the terms of their
appointments as members of the sanggunian to which they may be correspondingly appointed.
49 Since the election is still under protest such that no successor of the incumbent has as yet
qualified, the respondent Secretary has no choice but to have the incumbent FABC President sit
as member of the sanggunian. He could even have appointed petitioner since he was elected the

president of the federation but not Antonio. The appointment of Antonio, allegedly the protege of
respondent Governor, gives credence to petitioner's charge of political interference by respondent
Governor in the organization. This should not be allowed. The barangays should be insulated
from any partisan activity or political intervention if only to give true meaning to local autonomy.

WHEREFORE, the petition is GRANTED in that the resolution of respondent Secretary dated
August 4, 1989 is hereby SET ASIDE for having been issued in excess of jurisdiction.
The election of the officials of the ABC Federation held on June 18, 1989 is hereby annulled. A
new election of officers of the federation is hereby ordered to be conducted immediately in
accordance with the governing rules and regulations.
The Supplemental petition is hereby GRANTED. The appointment of Augusto Antonio as
representative to the Sangguniang Panlalawigan in a temporary capacity is declared null and
void.
No costs.
SO ORDERED.

EN BANC
[G.R. Nos. L-68379-81. September 22, 1986.]
EVELIO B. JAVIER, petitioner, vs. THE COMMISSION ON ELECTIONS,
and ARTURO F. PACIFICADOR, respondents.

Raul S. Roco and Lorna Patajo-Kapunan for petitioner.

SYLLABUS
1. REMEDIAL LAW; DISMISSAL OF ACTION; ISSUES BECAME MOOT AND ACADEMIC; NOT A
CASE OF. The abolition of the Batasang Pambansa and the disappearance of the office in
dispute between the petitioner and the private respondent both of whom have gone their
separate ways could be a convenient justification for dismissing this case. But there are larger
issues involved that must be resolved now, once and for all, not only to dispel the legal
ambiguities here raised. The more important purpose is to manifest in the clearest possible terms
that this Court will not disregard and in effect condone wrong on the simplistic and tolerant
pretext that the case has become moot and academic. The Supreme Court is not only the highest
arbiter of legal questions but also the conscience of the government. The citizen comes to us in
quest of law but we must also give him justice. The two are not always the same. There are
times when we cannot grant the latter because the issue has been settled and decision is no
longer possible according to the law. But there are also times when although the dispute has
disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act
then, not only for the vindication of the outraged right, though gone, but also for the guidance of
and as a restraint upon the future.
2. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; GIVEN FULL AUTHORITY TO HEAR
AND DECIDE CASES FROM BEGINNING TO END AND ALL MATTERS RELATED THERETO. We
believe that in making the Commission on Elections the sole judge of all contests involving the
election, returns and qualifications of the members of the Batasang Pambansa and elective
provincial and city officials, the Constitution intended to give it full authority to hear and decide
these cases from beginning to end and on all matters related thereto, including those arising
before the proclamation of the winners.
3. ID.; ID.; "CONTEST"; SHOULD NOT BE GIVEN A RESTRICTIVE MEANING. The word
"contests" should not be given a restrictive meaning; on the contrary, it should receive the widest
possible scope conformably to the rule that the words used in the Constitution should be
interpreted liberally. As employed in the 1973 Constitution, the term should be understood as
referring to any matter involving the title or claims as title to an elective office, made before or

after proclamation of the winner, whether or not the contestant is claiming the office in dispute.
Needless to stress, the term should be given a consistent meaning and understood in the same
sense under both Section 2(2) and Section 3 of Article XII-C of the Constitution.
4. ID.; ID.; PHRASE "ELECTION RETURNS AND QUALIFICATION," DEFINED IN THE SAME SENSE
UNDER SEC. 2(2) AND SEC. 3, ART. XII-C, CONSTITUTION. The phrase "election, returns and
qualifications" should be interpreted in its totality as referring to all matters affecting the validity
of the contestee's title. But if it is necessary to specify, we can say that "election" referred to the
conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the
casting and counting of the votes; "returns" to the canvass of the returns and the proclamation
of the winners, including questions concerning the composition of the board of canvassers and
the authenticity of the election returns; and "qualifications" to matters that could be raised in a
quo warranto proceeding against the proclaimed winner, such as his delivery or ineligibility or the
inadequacy of his certificate of candidacy.
5. ID.; ID.; ISSUED ON ELECTION, RETURNS AND QUALIFICATIONS; TO BE HEARD AND
DECIDED ONLY BY SITTING EN BAND INSOFAR AS THEY APPLIED TO MEMBERS OF B.P. All
these came under the exclusive jurisdiction of the Commission on Elections insofar as they
applied to the members of the defunct Batasang Pambansa and, under Article XII-C, Section 3, of
the 1973 Constitution, could be heard and decided by it only en banc.
6. ID.; ID.; ID.; CASES INVOLVING MEMBERS OF B.P. TO BE HEARD AND DECIDED BY SITTING
EN BANC; PURPOSE. As correctly observed by the petitioner, the purpose of Section 3 in
requiring that cases involving members of the Batasang Pambansa be heard and decided by the
Commission en banc was to insure the most careful consideration of such cases. Obviously, that
objective could not be achieved if the Commission could act en banc only after the proclamation
had been made, for it might then be too late already. We are all-too-familiar with the grab-theproclamation-and-delay-the-protest strategy of many unscrupulous candidates which has resulted
in the frustration of the popular will and the virtual defeat of the real winners in the election. The
respondent's theory would make this gambit possible for the pre-proclamation proceedings, being
summary in nature, could be hastily decided by only three members in division, without the
cause and deliberation that would have otherwise been observed by the Commission en banc.
After that, the delay. The Commission en banc might then no longer be able to rectify in time the
proclamation summarily and not very judiciously made by the division. While in the end the
protestant might be sustained, he might find himself with only a Phyrric victory because the term
of his office would have already expired.
7. ID.; BILL OF RIGHTS; DUE PROCESS GUARANTY; VIOLATED IN CASE AT BAR. Another
matter deserving the highest consideration of this Court but accorded cavalier attention by the
respondent Commission on Elections is due process of law, that ancient guaranty of justice and
fair play which is the hallmark of the free society. Commissioner Opinion ignored it. Asked to

inhibit himself on the ground that he was formerly a law partner of the private respondent, he
obstinately insisted on participating in the case, denying he was biased.
8. ID.; ID.; COLD NEUTRALITY OF AN IMPARTIAL JUDGE; INDISPENSABLE IMPERATIVE OF DUE
PROCESS. This Court has repeatedly and consistently demanded "the cold neutrality of an
impartial judge" as the indispensable imperative of due process. To bolster that requirement we
have held that the judge must not only be impartial but must also appear to be impartial as an
added assurance to the parties that his decision will be just. The litigants are entitled to no less
than that. They should be sure that when their rights are violated they can go to a judge who
shall give them justice. They must trust the judge, otherwise they will not go to him at all. They
must believe in his sense of fairness, otherwise they will not seek his judgment. Without such
confidence, there would be no point in invoking his action for the justice they expect.
9. ID.; ID.; DUE PROCESS; INTENDED TO INSURE COMPLIANCE WITH RUDIMENTS OF FAIR
PLAY. Due process is intended to insure that confidence by requiring compliance with what
Justice Frankfurter calls the rudiments of fair play. Fair play calls for equal justice. There cannot
be equal justice where a suitor approaches a court already committed to the other party and with
a judgment already made and waiting only to be formalized after the litigants shall have
undergone the charade of a formal hearing. Judicial (and also extra-judicial proceedings are not
orchestrated plays in which the parties are supposed to make the motions and reach the
denouement according to a prepared script. There is no writer to foreordain the ending. The
judge will reach his conclusions only after all the evidence is in and all the arguments are filed,
on the basis of the established facts and the pertinent law.
10. ID.; ID.; ID.; DEMANDS THAT THE JUDGE INHIBIT HIMSELF OUT OF A SENSE OF
DELICADEZA. The relationship of the judge with one of the parties may color the facts and
distort the law to the prejudice of a just decision. Where this is probable or even only possible,
due possible, due process demands that the judge inhibit himself, if only out of a sense of
delicadeza. For like Caesar's wife, he must be above suspicion. Commissioner Opinion, being a
lawyer, should have recognized his duty and abided by this well-known rule of judicial conduct.
For refusing to do so, he divested the Second Division of the necessary vote for the questioned
decision, assuming it could act, and rendered the proceedings null and void.
FELICIANO, J., concurring:
1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; MUST DECIDE ALL ELECTION
CONTESTS INVOLVING MEMBERS OF THE BATASAN PAMBANSA SITTING EN BANC. Although
this petition has become moot and academic, the decision, dated 23 July 1984, of the Second
Division of the Commission on Elections which had proclaimed Arturo F. Pacificador as the duly
elected Assemblyman of the province of Antique must be set aside or, more accurately, must be
disregarded as bereft of any effect in law. J. Feliciano reaches this result on the same single,
precisely drawn, ground relied upon by Melencio-Herrera, J., that all election contests involving

members of the former Batasan Pambansa must be decided by the Commission on Elections en
banc under Sections 2 and 3 of Article XII-C of the 1973 Constitution. These Sections do not
distinguish between "pre-proclamation" and "post-proclamation" contests nor between "cases"
and "contests."
MELENCIO-HERRERA, J., concurring:
1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; HAS JURISDICTION OVER CONTESTS
INVOLVING MEMBERS OF THE BATASAN PAMBANSA. I concur in the result. The questioned
Decision of the Second Division of the COMELEC, dated July 23, 1984, proclaiming private
respondent, Arturo F. Pacificador, as the duly elected Assemblyman of the province of Antique,
should be set aside for the legal reason that all election contests, without distinction as to cases
or contests, involving members of the defunct Batasang Pambansa fall under the jurisdiction of
the COMELEC en banc pursuant to Sections 2 and 3 of Article XII-C of the 1973 Constitution.

DECISION

CRUZ, J p:
The new Solicitor General has moved to dismiss this petition on the ground that as a result of
supervening events it has become moot and academic. It is not as simple as that, Several lives
have been lost in connection with this case, including that of the petitioner himself. The private
respondent is now in hiding. The purity of suffrage has been defiled and the popular will scorned
through a confabulation of those in authority. This Court cannot keep silent in the face of these
terrible facts. The motion is denied.
The petitioner and the private respondent were candidates in Antique for the Batasang Pambansa
in the May 1984 elections. The former appeared to enjoy more popular support but the latter had
the advantage of being the nominee of the KBL with all its perquisites of power. On May 13,
1984, the eve of the elections, the bitter contest between the two came to a head when several
followers of the petitioner were ambushed and killed, allegedly by the latter's men. Seven
suspects, including respondent Pacificador, are now facing trial for these murders. The incident
naturally heightened tension in the province and sharpened the climate of fear among the
electorate. Conceivably, it intimidated voters against supporting the Opposition candidate or into
supporting the candidate of the ruling party.

It was in this atmosphere that the voting was held, and the post-election developments were to
run true to form. Owing to what he claimed were attempts to railroad the private respondent's
proclamation, the petitioner went to the Commission on Elections to question the canvass of the
election returns. His complaints were dismissed and the private respondent was proclaimed
winner by the Second Division of the said body. The petitioner thereupon came to this Court,
arguing that the proclamation was void because made only by a division and not by the
Commission on Elections en banc as required by the Constitution. Meanwhile, on the strength of
his proclamation, the private respondent took his oath as a member of the Batasang Pambansa.
The case was still being considered by this Court when on February 11, 1986, the petitioner was
gunned down in cold blood and in broad daylight. The nation, already indignant over the obvious
manipulation of the presidential elections in favor of Marcos, was revolted by the killing, which
flaunted a scornful disregard for the law by the assailants who apparently believed they were
above the law. This ruthless murder was possibly one of the factors that strengthened the cause
of the Opposition in the February revolution that toppled the Marcos regime and installed the
present government under President Corazon C. Aquino.
The abolition of the Batasang Pambansa and the disappearance of the office in dispute between
the petitioner and the private respondent both of whom have gone their separate ways
could be a convenient justification for dismissing this case. But there are larger issues involved
that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised.
The more important purpose is to manifest in the clearest possible terms that this Court will not
disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has
become moot and academic.
The Supreme Court is not only the highest arbiter of legal questions but also the conscience of
the government. The citizen comes to us in quest of law but we must also give him justice. The
two are not always the same. There are times when we cannot grant the latter because the issue
has been settled and decision is no longer possible according to the law. But there are also times
when although the dispute has disappeared, as in this case, it nevertheless cries out to be
resolved. Justice demands that we act then, not only for the vindication of the outraged right,
though gone, but also for the guidance of and as a restraint upon the future.
It is a notorious fact decried by many people and even by the foreign press that elections during
the period of the Marcos dictatorship were in the main a desecration of the right of suffrage.
Vote-buying, intimidation and violence, illegal listing of voters, falsified returns, and other
elections anomalies misrepresented and vitiated the popular will and led to the induction in office
of persons who did not enjoy the confidence of the sovereign electorate. Genuine elections were
a rarity. The price at times was human lives. The rule was chicanery and irregularity, and on all
levels of the polls, from the barangay to the presidential. This included the rigged plebiscites and
referenda that also elicited the decision and provoked the resentments of the people.

Antique in 1984 hewed to the line and equaled if it did not surpass the viciousness of elections in
other provinces dominated by the KBL. Terrorism was a special feature, as demonstrated by the
killings previously mentioned, which victimized no less than one of the main protagonists and
implicated his rival as a principal perpetrator. Opposition leaders were in constant peril of their
lives even as their supporters were gripped with fear of violence at the hands of the party in
power. LLjur
What made the situation especially deplorable was the apparently indifferent attitude of the
Commission on Elections toward the anomalies being committed. It is a matter of record that the
petitioner complained against the terroristic acts of his opponents. All the electoral body did was
refer the matter to the Armed Forces without taking a more active step as befitted its
constitutional role as the guardian of free, orderly and honest elections. A more assertive stance
could have averted the Sibalom election eve massacre and saved the lives of the nine victims of
the tragedy.
Public confidence in the Commission on Elections was practically nil because of its transparent
bias in favor of the administration. This prejudice left many opposition candidates without
recourse except only to this Court.
Alleging serious anomalies in the conduct of the elections and the canvass of the election returns,
the petitioner went to the Commission on Elections to prevent the impending proclamation of his
rival, the private respondent herein. 1 Specifically, the petitioner charged that the elections were
marred by "massive terrorism, intimidation, duress, vote-buying, fraud, tampering and
falsification of election returns under duress, threat and intimidation, snatching of ballot boxes
perpetrated by the armed men of respondent Pacificador." 2 Particular mention was made of the
municipalities of Caluya, Cabate, Tibiao, Barbaza, Laua-an, and also of San Remigio, where the
petitioner claimed the election returns were not placed in the ballot boxes but merely wrapped in
cement bags or manila paper.
On May 18, 1984, the Second Division of the Commission on Elections directed the provincial
board of canvassers of Antique to proceed with the canvass but to suspend the proclamation of
the winning candidate until further orders. 3 On June 7, 1984, the same Second Division ordered
the board to immediately convene and to proclaim the winner without prejudice to the outcome
of the case before the Commission. 4 On certiorari before this Court, the proclamation made by
the board of canvassers was set aside as premature, having been made before the lapse of the
5-day period of appeal, which the petitioner had seasonably made. 5 Finally, on July 23, 1984,
the Second Division promulgated the decision now subject of this petition which inter alia
proclaimed Arturo F. Pacificador the elected assemblyman of the province of Antique. 6
This decision was signed by Chairman Victoriano Savellano and Commissioners Jaime Opinion
and Froilan M. Bacungan. Previously asked to inhibit himself on the ground that he was a former
law partner of private respondent Pacificador, Opinion had refused. 7

The petitioner then came to this Court, asking us to annul the said decision.
The core question in this case is one of jurisdiction, to wit: Was the Second Division of the
Commission on Elections authorized to promulgate its decision of July 23, 1984, proclaiming the
private respondent the winner in the election? LibLex
The applicable provisions are found in Article XII-C, Sections 2 and 3, of the 1973 Constitution.

A contest, according to him, should involve a contention between the parties for the same office
"in which the contestant seeks not only to oust the intruder but also to have himself inducted into
the office." 10 No proclamation had as yet been made when the petition was filed and later
decided. Hence, since neither the petitioner nor the private respondent had at that time assumed
office, there was no Member of the Batasang Pambansa from Antique whose election, returns or
qualifications could be examined by the Commission on Elections en banc.

Section 2 confers on the Commission on Elections the power to:

"(2) Be the sole judge of all contests relating to the election, returns and
qualifications of all member of the Batasang Pambansa and elective provincial
and city officials."
Section 3 provides:
"The Commission on Elections may sit en banc or in three divisions. All election
cases may be heard and decided by divisions except contests involving
members of the Batasang Pambansa, which shall be heard and decided en
banc. Unless otherwise provided by law, all election cases shall be decided
within ninety days from the date of their submission for decision."
While both invoking the above provisions, the petitioner and the respondents have arrived at
opposite conclusions. The records are voluminous and some of the pleadings are exhaustive and
in part even erudite. And well they might be, for the noble profession of the law despite all the
canards that have been flung against it exerts all efforts and considers all possible viewpoints
in its earnest search of the truth.
The petitioner complains that the proclamation made by the Second Division is invalid because all
contests involving the members of the Batasang Pambansa come under the jurisdiction of the
Commission on Elections en banc. This is as it should be, he says, to insure a more careful
decision, considering the importance of the offices involved. The respondents, for their part,
argue that only contests need to be heard and decided en banc and all other cases can be in
fact, should be filed with and decided only by any of the three divisions.
The former Solicitor General makes much of this argument and lays a plausible distinction
between the terms "contests" and "cases" to prove his point. 8 Simply put, his contention is that
the pre-proclamation controversy between the petitioner and the private respondent was not yet
a contest at that time and therefore could be validly heard by a mere division of the Commission
on Elections, consonant with Section 3. The issue was at this stage still administrative and so was
resoluble by the Commission under its power to administer all laws relative to the conduct of
elections, 9 not its authority as sole judge of the election contest.

In providing that the Commission on Elections could act in division when deciding election cases,
according to this theory, the Constitution was laying down the general rule. The exception was
the election contest involving the members of the Batasang Pambansa, which had to be heard
and decided en banc. 11 The en banc requirement would apply only from the time a candidate
for the Batasang Pambansa was proclaimed as winner, for it was only then that a contest could
be permitted under the law. All matters arising before such time were, necessarily, subject to
decision only by division of the Commission as these would come under the general heading of
"election cases."
As the Court sees it, the effect of this interpretation would be to divide the jurisdiction of the
Commission on Elections into two, viz.: (1) over matters arising before the proclamation, which
should be heard and decided by division in the exercise of its administrative power; and (2) over
matters arising after the proclamation, which could be heard and decided only en banc in the
exercise of its judicial power. Stated otherwise, the Commission as a whole could not act as sole
judge as long as one of its divisions was hearing a pre-proclamation matter affecting the
candidates for the Batasang Pambansa because there was as yet no contest; or to put it still
another way, the Commission en banc could not do what one of its divisions was competent to
do, i.e., decide a pre-proclamation controversy. Moreover, a mere division of the Commission on
Elections could hear and decide, save only those involving the election, returns and qualifications
of the members of the Batasang Pambansa, all cases involving elective provincial and city officials
from start to finish, including pre-proclamation controversies and up to the election protest, In
doing so, it would exercise first administrative and then judicial powers. But in the case of the
Commission en banc, its jurisdiction would begin only after the proclamation was made and a
contest was filed and not at any time and on any matter before that, and always in the exercise
only of judicial power.
This interpretation would give to the part more powers than were enjoyed by the whole, granting
to the division while denying to the banc. We do not think this was the intention of the
Constitution. The framers could not have intended such an irrational rule.
We believe that in making the Commission on Elections the sole judge of all contests involving
the election, returns and qualifications of the members of the Batasang Pambansa and elective
provincial and city officials, the Constitution intended to give it full authority to hear and decide

these cases from beginning to end and on all matters related thereto, including those arising
before the proclamation of the winners. Cdpr
It is worth observing that the special procedure for the settlement of what are now called "preproclamation controversies" is a relatively recent innovation in our laws, having been introduced
only in 1978, through P.D. No. 1296, otherwise known as the 1978 Election Code. Section 175
thereof provided:
"Sec. 175. Suspension and annulment of proclamation. The Commission
shall be the sole judge of all pre-proclamation controversies and any of its
decisions, orders or rulings shall be final and executory. It may, motu proprio
or upon written petition, and after due notice and hearing order the
suspension of the proclamation of a candidate-elect or annul any proclamation,
if one has been made, on any of the grounds mentioned in Sections 172, 173
and 174 thereof."
Before that time all proceedings affecting the election, returns and qualifications of public officers
came under the complete jurisdiction of the competent court or tribunal from beginning to end
and in the exercise of judicial power only. It therefore could not have been the intention of the
framers in 1935, when the Commonwealth Charter was adopted, and even in 1973, when the
past Constitution was imposed, to divide the electoral process into the pre-proclamation stage
and the post-proclamation stage and to provide for a separate jurisdiction for each stage,
considering the first administrative and the second judicial.
Besides, the term "contest" as it was understood at the time Article XII-C, Section 2(2) was
incorporated in the 1973 Constitution did not follow the strict definition of a contention between
the parties for the same office. Under the Election Code of 1971, which presumably was taken
into consideration when the 1973 Constitution was being drafted, election contests included the
quo warranto petition that could be filed by any voter on the ground of disloyalty or ineligibility of
the contestee although such voter was himself not claiming the office involved. 12
The word "contests" should not be given a restrictive meaning; on the contrary, it should receive
the widest possible scope conformably to the rule that the words used in the Constitution should
be interpreted liberally. As employed in the 1973 Constitution, the term should be understood as
referring to any matter involving the title or claim of title to an elective office, made before or
after proclamation of the winner, whether or not the contestant is claiming the office in dispute.
Needless to stress, the term should be given a consistent meaning and understood in the same
sense under both Section 2(2) and Section 3 of Article XII-C of the Constitution.
The phrase "election, returns and qualifications" should be interpreted in its totality as referring
to all matters affecting the validity of the contestee's title. But if it is necessary to specify, we can
say that "election" referred to the conduct of the polls, including the listing of voters, the holding

of the electoral campaign, and the casting and counting of the votes; "returns" to the canvass of
the returns and the proclamation of the winners, including questions concerning the composition
of the board of canvassers and the authenticity of the election returns; and "qualifications" to
matters that could be raised in a quo warranto proceeding against the proclaimed winner, such
as his disloyalty or ineligibility or the inadequacy of his certificate of candidacy. LLjur
All these came under the exclusive jurisdiction of the Commission on Elections insofar as they
applied to the members of the defunct Batasang Pambansa and, under Article XII-C, Section 3, of
the 1973 Constitution, could be heard and decided by it only en banc.
We interpret "cases" as the generic term denoting the actions that might be heard and decided
by the Commission on Elections, only by division as a general rule except where the case was a
"contest" involving members of the Batasang Pambansa, which had to be heard and decided en
banc.
As correctly observed by the petitioner, the purpose of Section 3 in requiring that cases involving
members of the Batasang Pambansa be heard and decided by the Commission en banc was to
insure the most careful consideration of such cases. Obviously, that objective could not be
achieved if the Commission could act en banc only after the proclamation had been made, for it
might then be too late already. We are all-too-familiar with the grab-the-proclamation-and-delaythe-protest strategy of many unscrupulous candidates which has resulted in the frustration of the
popular will and the virtual defeat of the real winners in the election. The respondent's theory
would make this gambit possible for the pre-proclamation proceedings, being summary in nature,
could be hastily decided by only three members in division, without the care and deliberation that
would have otherwise been observed by the Commission en banc.
After that, the delay. The Commission en banc might then no longer be able to rectify in time the
proclamation summarily and not very judiciously made by the division. While in the end the
protestant might be sustained, he might find himself with only a Phyrric victory because the term
of his office would have already expired.
It may be argued that in conferring the initial power to decide the pre-proclamation question
upon the division, the Constitution did not intend to prevent the Commission en banc from
exercising the power directly, on the theory that the greater power embraces the lesser. It could
if it wanted to but then it could also allow the division to act for it. That argument would militate
against the purpose of the provision, which precisely limited all questions affecting the election
contest, as distinguished from election cases in general, to the jurisdiction of the Commission en
banc as sole judge thereof. "Sole judge" excluded not only all other tribunals but also and even
the division of the Commission. A decision made on the contest by less than the Commission en
banc would not meet the exacting standard of care and deliberation ordained by the Constitution.

Incidentally, in making the Commission the "sole judge" of pre-proclamation controversies in

Section 175, supra, the law was obviously referring to the body sitting en banc. In fact, the preproclamation controversies involved in Aratuc vs. Commission on Elections, 13 where the said
provision was applied, were heard and decided en banc.
Another matter deserving the highest consideration of this Court but accorded cavalier attention
by the respondent Commission on Elections is due process of law, that ancient guaranty of
justice and fair play which is the hallmark of the free society. Commissioner Opinion ignored it.
Asked to inhibit himself on the ground that he was formerly a law partner of the private
respondent, he obstinately insisted on participating in the case, denying he was biased. 14

Given the general attitude of the Commission on Elections toward the party in power at the time,
and the particular relationship between Commissioner Opinion and MP Pacificador, one could not
be at least apprehensive, if not certain, that the decision of the body would be adverse to the
petitioner. As in fact it was. Commissioner Opinion's refusal to inhibit himself and his objection to
the transfer of the case to another division cannot be justified by any criterion of propriety. His
conduct on this matter belied his wounded protestations of innocence and proved the motives of
the Second Division when it rendered its decision. cdll

demands that the judge inhibit himself, if only out of a sense of delicadeza. For like Caesar's wife,
he must be above suspicion. Commissioner Opinion, being a lawyer, should have recognized his
duty and abided by this well-known rule of judicial conduct. For refusing to do so, he divested
the Second Division of the necessary vote for the questioned decision, assuming it could act, and
rendered the proceeding null and void. 17
Since this case began in 1984, many significant developments have taken place, not the least
significant of which was the February revolution of "people power" that dislodged the past regime
and ended well nigh twenty years of travail for this captive nation. The petitioner is gone, felled
by a hail of bullets sprayed with deadly purpose by assassins whose motive is yet to be disclosed.
The private respondent has disappeared with the "pomp of power" he had before enjoyed. Even
the Batasang Pambansa itself has been abolished, "an iniquitous vestige of the previous regime"
discontinued by the Freedom Constitution. It is so easy now, as has been suggested not without
reason, to send the records of this case to the archives and say the case is finished and the book
is closed.
But not yet.

This Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge"
as the indispensable imperative of due process. 15 To bolster that requirement, we have held
that the judge must not only be impartial but must also appear to be impartial as an added
assurance to the parties that his decision will be just. 16 The litigants are entitled to no less than
that. They should be sure that when their rights are violated they can go to a judge who shall
give them justice. They must trust the judge, otherwise they will not go to him at all. They must
believe in his sense of fairness, otherwise they will not seek his judgment. Without such
confidence, there would be no point in invoking his action for the justice they expect.

Let us first say these meager words in tribute to a fallen hero who was struck down in the vigor
of his youth because he dared to speak against tyranny. Where many kept a meekly silence for
fear of retaliation, and still others feigned and fawned in hopes of safety and even reward, he
chose to fight. He was not afraid. Money did not tempt him. Threats did not daunt him. Power
did not awe him. His was a singular and all exacting obsession: the return of freedom to his
country. And though he fought not in the barricades of war amid the sound and smoke of shot
and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people against
the enemies of his race, unfortunately of his race too, who would impose upon the land a
perpetual night of dark enslavement. He did not see the breaking of the dawn, sad to say, but in
a very real sense Evelio B. Javier made that dawn draw nearer because he was, like Saul and
Jonathan, "swifter than eagles and stronger than lions."

Due process is intended to insure that confidence by requiring compliance with what Justice
Frankfurter calls the rudiments of fair play. Fair play calls for equal justice. There cannot be equal
justice where a suitor approaches a court already committed to the other party and with a
judgment already made and waiting only to be formalized after the litigants shall have undergone
the charade of a formal hearing. Judicial (and also extrajudicial) proceedings are not orchestrated
plays in which the parties are supposed to make the motions and reach the denouement
according to a prepared script. There is no writer to foreordain the ending. The judge will reach
his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the
established facts and the pertinent law.

A year ago this Court received a letter which began: "I am the sister of the late Justice Calixto
Zaldivar. I am the mother of Rhium Z. Sanchez, the grandmother of Plaridel Sanchez IV and
Aldrich Sanchez, the aunt of Mamerta Zaldivar. I lost all four of them in the election eve ambush
in Antique last year." She pleaded, as so did hundreds of others of her provincemates in separate
signed petitions sent us, for the early resolution of that horrible crime, saying "I am 82 years old
now. I am sick. May I convey to you my prayer in church and my plea to you, 'Before I die, I
would like to see justice to my son and grandsons,' May I also add that the people of Antique
have not stopped praying that the true winner of the last elections will be decided upon by the
Supreme Court soon." LLpr

The relationship of the judge with one of the parties may color the facts and distort the law to
the prejudice of a just decision. Where this is probable or even only possible, due process

That was a year ago and since then a new government has taken over in the wake of the
February revolution. The despot has escaped, and with him, let us pray, all the oppressions and

repressions of the past have also been banished forever. A new spirit is now upon our land. A
new vision limns the horizon. Now we can look forward with new hope that under the
Constitution of the future every Filipino shall be truly sovereign in his own country, able to
express his will through the pristine ballow with only his conscience as his counsel.
This is not an impossible dream. Indeed, it is an approachable goal. It can and will be won if we
are able at last, after our long ordeal, to say never again to tyranny. If we can do this with
courage and conviction, then and only then, and not until then, can we truly say that the case is
finished and the book is closed.
WHEREFORE, let it be spread in the records of this case that were it not for the supervening
events that have legally rendered it moot and academic, this petition would have been granted
and the decision of the Commission on Elections dated July 23, 1984, set aside as violative of the
Constitution.
SO ORDERED.
||| (Javier v. Commission on Elections, G.R. Nos. L-68379-81, [September 22, 1986], 228 PHIL

193-211)

EN BANC
[G.R. No. 13744. November 29, 1918.]
JOSE LINO LUNA, petitioner-appellant, vs. EULOGIO RODRIGUEZ,
respondent-appellant; SERVANDO DE LOS ANGELES, respondent.

Ramon Diokno and Agapito Ygnacio, for petitioner.

Sumulong & Estrada, for respondent.
SYLLABUS
1. ELECTIONS; FRAUDS; EFFECT OF HOLDING POLLS OPEN AFTER HOUR FIXED
FOR CLOSING. The law provides that "at all elections, the polls shall be open from seven
o'clock in the morning until six o'clock in the afternoon." The polls should be open and closed
in strict accord with said provisions. Voters who do not appear and offer to vote within the
hours designated by the law should not be permitted to vote if the time for closing the polls
has arrived. Upon the other hand, if the voter is prevented, during the voting hours, from
voting, and is not permitted to vote by reason of the failure of the inspectors to do their
duty, then, certainly, in the absence of some fraud, neither such votes nor the entire vote of
the precinct should be annulled simply because some votes were cast after the regular hours.
The ballot of the innocent voter should not be annulled and he should not be deprived of his
participation in the affairs of his government when he was guilty of no illegal act or fraud.
The election inspectors should be held to comply strictly with the law. If they violate the law,
they should be punished and not the innocent voter.
2. ID.; PURPOSE; VOTERS BE PERMITTED UNHAMPERED AND UNMOLESTED TO
EXPRESS WILL THROUGH BALLOT. The purpose of an election is to give the voters a
direct participation in the affairs of their government, either in determining who shall be their
public officials or in deciding some question of public interest; and for this purpose, all of the
legal voters should be permitted, unhampered and unmolested, to cast their ballots. When
that is done, and no frauds have been committed, the ballot should be counted and the
election should not be declared null. Innocent voters should not be deprived of their
participation in the affairs of their government for mere irregularities on the part of election
officers for which they are in no way responsible. A different rule would make the manner
and method of performing a public duty of greater importance than the duty itself.
3. ID.; RULES AND REGULATIONS; MANDATORY AND DIRECTORY PROVISIONS.
It has been announced in many decisions that the rules and regulations, for the conduct of
elections, are mandatory before the election, but when it is sought to enforce them after the

elections, they are held to be directory only, if that is possible, especially where, if they are
held to be mandatory, innocent voters will be deprived of their votes without any fault on
their part. The various and numerous provisions of the Election Law were adopted to assist
the voters in their participation in the affairs of the government and not to defeat that object.
When the voters have honestly cast their ballots, the same should not be nullified simply
because the officers appointed under the law to direct the election and guard the purity of
the ballot have not done their duty. The law provides a remedy, by criminal action, against
them. They should be prosecuted criminally, and the will of the honest voter, as expressed
through his ballot, should be protected and upheld.
4. ID.; INCAPACITATED VOTERS; VOTING WITHOUT TAKING REQUIRED OATH.
When an incapacitated person offers to vote, the law requires: (a) That he take an oath to
the effect that he is disabled and the nature of the disability, together with the fact that he
desires the inspectors to assist him in the preparation of his ballot; ( b) that a record of said
oath shall be filed with the secretary with the other records of the board of inspectors after
the election; and (c) when said oath is taken then two of the inspectors, each of whom shall
belong to a different political party may assist him in the preparation of his ballot. The ballot
of an incapacitated person who voted without taking the oath, or was assisted by one
inspector alone, or by two belonging to the same party, should not be counted if such ballot
can be identified. In the absence of fraud, however, all of the ballots of the precinct should
not be invalidated by the mere fact that the inspectors did not comply with their duty.
Innocent voters should not be deprived of their participation in the election for a violation of
the law for which they were in no way responsible. Incapacitated persons are usually persons
who are unable to acquaint themselves with the provisions of the law. They are, therefore,
absolutely dependent upon the advice and counsel of others. Generally, they have no idea
whatever as to the form and requirements in casting their ballots. Their ignorance, however,
does not relieve them from their responsibility under the law nor from the effect of their
failure to comply therewith. It is the duty of the inspectors to see that the law is complied
with by the voter before he is permitted to vote. If the inspectors violate the law, they should
be punished criminally.
5. ID.; VOTING BOOTHS; PURPOSE. While the law provides the manner of
constructing voting booths, and while the provisions are in a sense mandatory yet the
purpose of the law is to require voting booths which afford the voter an opportunity, if he
desires, to prepare his ballot in absolute secrecy. Secrecy is the object of the booth. An
opportunity to prepare the ballot in private is the purpose of the provision. When the booth
affords that protection the purpose of the law is fulfilled. To hold otherwise to establish a
different rule would make the manner of performing a public duty more important than
the performance of the duty itself.

DECISION

JOHNSON, J p:
It appears from the record that an election for the office of governor of the Province
of Rizal was held on the 6th day of June, 1916. At said election Jose Lino Luna, Eulogio
Rodriguez and Servando de los Angeles were candidates for said office. The election was
closed, the votes cast in the various municipalities were counted, and a return was made by
the inspectors of said municipalities to the provincial board of Canvassers, who, after a
canvass of said returns, proclaimed the following result:
(a) That Eulogio Rodriguez received 4,321 votes; (b) Jose Lino Luna 4,157; (c)
Servando de los Angeles 3,576 votes; and (d) that Eulogio Rodriguez, having received a
plurality of said votes, was duly elected governor of said province.
Against said proclamation Jose Lino Luna presented a protest in the Court of First
Instance. Upon said protest issue was joined, hearing was had and a decision was rendered
which was, on appeal, set aside and a new trial ordered. (Lino Luna vs. Rodriguez and De los

Angeles, 37 Phil. Rep., 186.) Complying with said order, a new trial was had at which the
Honorable William E. McMahon, judge, presided. Additional evidence was adduced. After a
consideration of all of the facts and the evidence adduced at both trials, Judge McMahon
reached the conclusion that the ballots cast for the various candidates were as indicated in
the returns of the inspectors of the various municipalities except those in the municipality of
Taytay and Binangonan. In the municipality of Taytay, Judge McMahon found from the
evidence that 50 ballots cast for Eulogio Rodriguez should not have been counted for him,
and ordered that number of votes deducted from his total. In the municipality of Binangonan,
Judge McMahon found that the inspectors did not close the polls at 6 o'clock p.m., and that a
large number of persons voted after that time, and directed that the total vote of Eulogio
Rodriguez should be reduced by the number of such votes, without ascertaining how many
had been cast for Rodriguez and how many for Luna. By deducting the said votes in the
municipality of Taytay and those cast after six o'clock p. m. in the municipality of
Binangonan, Judge McMahon concluded that Jose Lino Luna had received a plurality of the
legal votes cast at said election and ordered the provincial board of canvassers to correct its
canvass accordingly. From that conclusion both parties to the contest appealed to this court
and made several assignments of error.
Considering all of said assignments of error, we find that they present, in fact, but
three questions:
(1) What is the effect of holding the polls open after the hour fixed for closing the
election?
(2) What is the effect of assistance rendered by the inspectors of the election to
incapacitated persons, without first requiring of such persons an oath to the effect that they
are incapacitated to prepare their own ballots?
(3) What is the effect of a failure on the part of the authorities to provide proper
voting booths? With reference to the first question, the law provides that "at all the elections

held under the provisions of this Act the polls shall be open from seven o'clock in the
morning until six o'clock in the afternoon, during which period not more than one member of
the board of inspectors shall be absent at one time, and then for not to exceed twenty
minutes at one time." (Sec. 21 of Act No. 1582; Sec. 11 of Act No. 2045; Sec. 543 of Act No.
2657, and Sec. 445 of Act No. 2711.) Are the provisions with reference to the time of
opening and closing the polls mandatory? It is admitted in the present case that the polls
were not closed at 6 p. m. The record shows that at 6 p.m. a large number of voters had not
yet been able to vote and that, for that reason, an agreement was made between some of
the candidates for office who were present and the board of inspectors, to the effect that the
polls should be kept open in order that such electors might vote. No objection whatever to
that agreement was made by any person at that time.
One of the reasons why all of the voters of the municipality had not voted before 6
p.m. was that the board of inspectors failed to have the list of voters properly prepared at 7
a.m., and therefore but few of the voters were able to vote before eleven or eleven-thirty in
the morning. That failure, on the part of the board of inspectors, made it impossible for many
of the voters of the municipality of Binangonan to vote before the regular time for the closing
of the polls.

Shall the ballot of an innocent voter who is prevented, through no fault of his, from
casting the same before 6 p.m. be annulled for the simple reason that the polls were kept
open, after the hour designated by the law, for the purpose of giving such voter an
opportunity to vote?
Experience and observation has taught legislatures and courts that, at the time of a
hotly contested election, the partisan spirit of ingenious and unscrupulous politicians will lead
them beyond the limits of honesty and decency and by the use of bribery, fraud and
intimidation, despoil the purity of the ballot and defeat the will of the people at the polls.
Such experience has led the legislatures to adopt very stringent rules for the purpose of
protecting the voter in the manner of preparing and casting his ballot to guard the purity of
elections. (Paulino vs. Cailles, 37 Phil. Rep., 825.)
The infinite ingenuity of violent partisan spirit in evading the rules and regulation of
elections and the use of bribery, fraud and intimidation has made necessary the
establishment of elaborate and rigid rules and regulations for the conduct of elections. The
very elaborateness of these rules has resulted in their frequent violation and the reports of
the courts are replete with cases in which the result of an election has been attacked on the
ground that some provision of the law has not been complied with. Presumably, all the
provisions of the election laws have a purpose and should therefore be observed. (Detroit vs.

Rush, 82 Mich., 532; 10 L.R.A., 171; 9 R.C.L., 1091; Patton vs. Watkins, 131 Ala., 387; 90
Am. State Rep 43, 72.)
It has been announced in many decisions that the rules and regulations, for the
conduct of elections, are mandatory before the election, but when it is sought to enforce

them after the election they are held to be directory only, if that is possible, especially where,
if they are held to be mandatory, innocent voters will be deprived of their votes without any
fault on their part. (Patton vs. Watkins, 131 Ala., 387; 90 Am. State Rep., 43, 72; Jones vs.

State, 153 Ind., 440.)

In the case of Gardiner vs. Romulo (26 Phil. Rep., 521), we held that when the

Election Law does not provide that a departure from a prescribed form will be fatal and such
departure has been due to an honest mistake or misrepresentation of the Election Law, and
such departure has not been used as a means for fraudulent practices and it is clear that
there has been a free and honest expression of the popular will, the law will be held to be
directory and such departure will be considered a harmless irregularity. However, the
irregularities may be so numerous as not to be attributed to ignorance or honest mistake, but
to a design to defeat the will of the voters or to such careless disregard of the law as to
amount not only to laches but to fraudulent intent. In such cases, the election officers should
be punished, the election should be declared null and a new election held.
It has been held, therefore, very generally, that the provisions of a statute as to the
manner of conducting the details of an election are not mandatory, but directory merely, and
irregularities, in conducting an election and counting the votes, not proceeding from any
wrongful intent and which deprives no legal voter of his vote, will not vitiate an election or
justify the rejection of the entire votes of a precinct. (Behrensmeyer vs. Kreitz, 135 Ill., 591;

Hankey vs. Bowman, 82 Minn., 328; Sprague vs. Norway, 31 Cal., 173; Webre vs. Wilton, 29
La. Ann., 610.)
The purpose of an election is to give the voters a direct participation in the affairs of
their government, either in determining who shall be their public officials or in deciding some
question of public interest; and for that purpose all of the legal voters should be permitted,
unhampered and unmolested, to cast their ballot. When that is done and no frauds have

been committed, the ballots should be counted and the election should not be declared null.
Innocent voters should not be deprived of their participation in the affairs of their
government for mere irregularities on the part of the election officers, for which they ale in
no way responsible. A different rule would make the manner and method of performing a
public duty of greater importance than the duty itself. (Loomis vs. Jackson, 6 W. Va., 613.)
The errors and irregularities which warrant the rejection of ballots and the annulment
of an election and thus deprive lawful voters of their legal right to vote, should be such as to
fully justify that result. (The People vs. Cook, 8 N. Y., 67; 59 Am. Dec., 451.) It has been

held that even great irregularities on the part of election officers will not of necessity vitiate
an election, where no fraud is committed or attempted, or no illegal vote was polled and no
legal voter was deprived of his vote. (Morris vs. Vanlaningham, 11 Kan., 269.)
No complaint is made that any fraud was committed nor that any person voted who
had no right to vote, by reason of the fact that the polls were kept open after the hour fixed
by the law. It is admitted that the polls were kept open after the hour, by the consent of all
parties concerned, for the reasons and purposes above indicated. In view of such facts,

should the vote of the innocent voter be annulled and he thereby deprived of his
participation in the affairs of the government when he was guilty of no illegal act? If the
inspectors may, for one reason or another, prevent the opening of the polls or delay the
commencement of the voting until 11 o'clock in the morning and then close the polls in the
evening so as to prevent all those who desire to vote from voting, without incurring criminal
liability for a violation of the election laws, the same motives will induce them to delay the
opening of the polls until later and thus prevent any to vote except those whom they desire.

present case. It is true, perhaps, that a number of the votes cast after the hour for closing
the polls were sufficient to change the result of the election, but the result would have been
the same had those same voters been permitted to vote, except for the negligence of the
inspectors, during the regular hours for voting. There seems to be no more reason for
annulling the votes cast, after the hour for closing the election, than for annulling the
election for the reason that the inspectors failed to provide the means for voting at the time
fixed for opening the polls in the morning.

The polls should be opened and closed in strict accord with the provisions of the law.
Voters who do not appear and offer to vote within the hours designated by the law should
not be permitted to vote after the time for closing the polls has arrived . Upon the other hand,

We are firmly of the opinion that instead of depriving the innocent voters of their
right to participate in the affairs of their government for irregularities committed by the
election inspectors, the latter should be proceeded against in a criminal action for failure, on
their part, to comply with the law and be punished in accordance with Section 29 of Act No.
1592; Section 2632 of Act No. 2657 and Section 2639 of Act No. 2711.

if the voter is prevented, during the voting hours, from voting, and is not permitted to vote
by reason of the failure of the inspectors to do their duty, then, certainly, in the absence of
some fraud, neither sue votes nor the entire vote of the precinct should be annulled simply
because some votes were cast after the regular hour. (People vs. Prewett, 124 Cal., 7;

Packwood vs. Brownell, 121 Cal., 478; Pickett vs. Russell, 42 Fla., 116.)
The decisions in the various States of the United States are not uniform upon the
effect of a failure to open and close polls at the time specified by the law. In some States
such a provision has been held to be mandatory, in others directory. The decisions seem to
be based upon the language of the particular statutes discussed .
We are not inclined to the belief that the legislature intended that a failure to comply
with the law in this jurisdiction should render the entire election void, nor nullify the votes
cast after the period mentioned in the law, unless the polls were kept open after the hour for
the purpose of permitting some fraud to be committed, or for the purpose of permitting
some person to vote who had not appeared during the regular voting hours.
The section of the law which we are discussing provides that "not more than one
member of the board of inspectors shall be absent at one time and then for not to exceed
twenty minutes at one time." Suppose that the evidence showed that two of the inspectors
were absent at one time and for a period longer than twenty minutes, would the courts be
justified in holding that the entire election was void, in the absence of fraud, for that reason?
There is little justification for holding that one provision of said section is mandatory and the
other directory.
Our conclusion upon the first question, in view of the foregoing, is that in the present
case there seems to be no justification, under the facts, there being no fraud committed, for
annulling the votes of innocent voters who were permitted by the election inspectors to cast
their votes in a legal manner after the regular hour for closing the polls. In this conclusion,

however, we do not desire to be understood to have decided that in no case should the
courts not annul and set aside an election, where fraud is clearly proved, for a violation of
the section under discussion. When the polls are kept open after the hour prescribed by the
law for the purpose of defeating the will of the people, such a violation of the law should
result in annulling and setting aside the election of that precinct. No such facts exist in the

The various and numerous provisions of the Election Law are adopted to assist the
voters in their participation in the affairs of the government, and not to defeat that object.
When the voters have honestly cast their ballots, the same should not be nullified simply
because the officers appointed, under the law to direct the election and guard the purity of
elections, have not done their duty. The law provides a remedy, by criminal action, against
them. They should be prosecuted, and the will of the honest voter, as expressed through his
ballot, should be protected and upheld.

It may be noted in this relation that, under the law, the polls are kept open from 7
a.m. until 6 p.m., or, for a period of eleven hours only. In the municipality of Binangonan the
record shows that there were 375 analfabetos (illiterate persons) and 164 other voters. The
law requires an analfabeto to take an oath and that the oath shall be filed. Naturally the
inspectors require some time in (a) ascertaining whether or not the voter is in fact an
analfabeto; and (b) in administering, preparing, signing and filing the oath. Suppose one
minute only is allowed for that work. Then two inspectors must accompany such a voter to
the booth, there assist him in preparing his ballot and then return to their position occupied
by them as inspectors. We do not think that work could be accomplished in less than another
minute and it would more than likely occupy nearer two minutes. But admitting that it could
be accomplished in one minute, we have, at least, two minutes occupied by two inspectors
for each analfabeto. There being 375 analfabetos, it would require 750 minutes to vote, or
12 1/2 hours. If the inspectors had strictly complied with the law, not all of the analfabetos of
said municipality could have voted in the eleven hours provided by the law, not to say
anything of the time necessarily occupied with the 164 other voters of the municipality who
would, at least, occupy one minute each of the time of the inspectors, or nearly 22 hours
more. With reference to this particular question of the time necessary for each analfabeto to
vote, some of the judges have estimated that it would take, at least, five minutes of the time
of the inspectors for each analfabeto. (Hontiveros vs. Mobo, R.G. No. 13959, p. 230, post.)

From the foregoing, it was practically an impossibility for all of the voters of said
municipality to have voted in the eleven hours prescribed by the law even though the polls
had been opened promptly at 7 a.m. instead of at nearly 11 a.m. The above time is
computed upon the theory that no time whatever is lost, that the voters arrive one
immediately after another and that no time is lost waiting for the arrival of the voters.
With reference to the second question above presented, the law provides that:
"A voter otherwise qualified who declares that he can not write, or that
from blindness or other physical disability he is unable to prepare his ballot,
may make an oath to the effect that he is so disabled and the nature of his
disability and that he desires the inspectors to assist him in the preparation of
such ballot. The board shall keep a record of all such oaths taken and file the
same with the municipal secretary with the other records of the board after the
election. Two of the inspectors, each of whom shall belong to a different
political party, shall ascertain the wishes of the voter, and one of them shall
prepare the ballot of the voter in proper form according to his wishes, in the
presence of the other inspector, and out of view of any other person. The
information thus obtained shall be regarded as a privileged communication."
(Section 12, Act No. 2045; Section 550, Act No. 2657; Section 453, Act No.
2711.)
Said quoted section provides the method by which a person who cannot prepare his
ballot may be assisted. The conditions are:
(a) That he must make an oath to the effect that he is disabled and the nature of his
disability together with the fact that he desires the inspectors to assist him in the preparation
of his ballot;
(b) That a record of said oath shall be filed with the municipal secretary with the
other records of the board of inspectors after the election; and
(c) When said oath is taken, then two of the inspectors. each of whom shall belong
to different political party, may assist him in the preparation of his ballot.
In view of said conditions, what shall be the effect of a failure to comply therewith?
Suppose, for example, that the voter is incapacitated; that the board of inspectors are fully
aware of that fact; that they failed to require of him the oath; that they failed to keep on file
the oath taken, or that one inspector only assisted said voter in the preparation of his ballot,
or that two assisted him which belonged to the same party, shall the ballot of such an
incapacitated person be rejected ? Shall all of the votes of the precinct be nullified because of
the failure of the inspectors to comply strictly with the letter of the law?
We held in the case of Paulino vs. Cailles (R.G. No. 12753, 37 Phil. Rep., 825) that
the ballots of incapacitated persons who voted without taking the oath or were assisted by
one inspector alone, or by two belonging to the same party, should not be counted if such
ballots could be identified. We further held that, in the absence of fraud, all of the ballots of

the precinct should not be invalidated by the mere fact that the inspectors did not comply
with their duty. Innocent voters should not be deprived of their participation in an election
for a violation of the law for which they were in no way responsible and which they could not
prevent.
The incapacitated persons mentioned in said section above noted are usually persons
who are unable to acquaint themselves with the provisions of the law. They are, therefore,
absolutely dependent upon the advice and counsel of others. Generally, they have no idea
whatever as to the form and requirements in casting their ballots. Their ignorance, however,
does not relieve them from their responsibility under the law, nor from the effect of their
failure to comply therewith. (Manalo vs. Sevilla, 24 Phil. Rep., 609; Gardiner vs. De Leon, R.

G. No. 12382 decided March 15, 1917, not published; Paulino vs. Cailles, R.G. No. 12763, 37
Phil. Rep., 825.)
The law intended that those voters only who are incapacitated in some way should
be assisted. To insure a compliance with the law an oath of incapacity is required. To prove
that only such persons have received assistance, the election board is required to keep a
record of such oath. To guarantee that such voters should not be imposed upon, the law
wisely provided that two inspectors of different political faith should assist them. Upon the
other hand, if the inspectors have failed or declined to perform a duty or obligation imposed
upon them by the Election Law, they may be punished.
The record shows that in many of the municipalities of the Province of Rizal, during
the election in question, a great many incapacitated persons voted without taking the oath
required and were assisted by one inspector only in the preparation of their ballots. But, in
view of the fact that such ballots have not been identified they cannot be rejected. The voter
cannot be punished. The remedy is by a criminal action against the inspectors for a failure to
comply with the law. (Section 29, Act No. 1582; Section 2632, Act No. 2657; Section 2639,
Act No. 2711.)
Said Section (2632) provides, among other things, that any member of a board of
registration, or board of inspectors, or board of canvassers who willfully declines or fails to
perform any duty or obligation imposed by the Election Law, shall be punished by
imprisonment for not less than one month nor more than one year, or by a fine of not less
than P200 nor more than P500 or both.
With reference to the third question above indicated, relating to what is the effect of
a failure on the part of the authorities to provide proper voting booths, it may be said that
we have held in the case of Gardiner vs. Romulo (26 Phil. Rep., 521) that the requirements

of the Election Law providing for the location of polling stations and the construction of
booths and guard rails for the latter may be departed from in some particulars and yet
preserve, in substantial form, the secrecy which the law requires. But the failure to provide
doors and guard rails for the booths and the placing of the writing shelf so that it faces the
side instead of the rear of the booths are, combined, a fatal disregard of the law, inasmuch
as such an arrangement does not offer, even in substantial form, the secrecy and seclusion

which, according to the purpose and spirit of the Election Law, is its most mandatory
requirement.
Section 9 of Act No. 1582, as amended by Section 512 of Act No. 2657 and Section
415 of Act No. 2711, provides that there shall be in each polling place, during each election,
a sufficient number of voting booths, not less than one for every fifty voters, in the election
precinct. Said section further provides how such voting booths shall be constructed. The
purpose of said provisions is to furnish each voter an opportunity to prepare his ballot in
secrecy. Suppose the board of inspectors does not prepare the voting booth in exactly the
form prescribed by law, what shall be the effect? Suppose, for example, that they construct a
booth less than one meter square as is provided by the law but yet sufficiently large to
enable the voter to enter and to prepare his ballot in secrecy; or suppose that the door
swinging outward to the booth shall extend to the floor instead of within fifty centimeters of
the floor; or suppose that the shelf upon which the voter shall prepare his ballot shall be less
than thirty centimeters wide, shall the entire election be declared null and void for such
failures when it is admitted and proved, beyond question, that even with such defects in the
fulfillment of the requirements of the election law they were in fact constructed in a manner
which provided the voter a complete opportunity to prepare his ballot in absolute secrecy ?
While there is no provision in the law, relating to the construction of booths, that they shall
be constructed in such manner as to afford the voter an opportunity to prepare his ballot in
secret, that must be the primary and ultimate object of having the booths constructed in the
manner indicated.
When we held that the law requiring the preparation of the booths in a particular
manner was mandatory, we did not mean to hold that unless they were prepared in exact
conformity with the law, that the election would be nullified. We simply held that if they were
not constructed in a manner which afforded the voters an opportunity to prepare their ballots
in secret, the election would be declared null and void on that account. If, however, upon the
other hand, the booths were so constructed, even though not in strict accord with the
provisions of the law, as to afford each voter an opportunity to prepare his ballot in secret,
the election should not be declared null and void. Secrecy is the object of the booth. An
opportunity to prepare his ballot in private is the purpose of the provision. When the booth
affords that protection, the purpose of the law is fulfilled. To hold otherwise to establish a
different rule would make the manner of performing a public duty more important than
the performance of the duty itself.

In the present case, while there is some conflict in the evidence, and while the proof
clearly shows that the booths were not constructed in strict accordance with the provisions of
the law, we are of the opinion that a large preponderance of the evidence shows that the
booths were constructed (defectively perhaps) in a manner which afforded each voter an
opportunity to prepare his ballot in absolute secrecy. That being true, we find no reason for
changing or modifying the conclusion of the lower court.

The defendant-appellant alleges, and attempts to establish the fact, that in the
municipality of San Felipe Nery many irregularities were committed which should invalidate
the election. For example, he alleges the different columns of the polling list were not
properly filled. Even granting that fact, the voter was in no way responsible. The voter not
being responsible, his ballot should not be nullified on that account. Filling the different
columns of the polling list is a duty imposed upon the election officers. If they fail to perform
their duty they are responsible; and as we have frequently said, the ballots of innocent voters
should not be nullified for a failure on the part of election officers to perform their duty in
accordance with the provisions of the law. The remedy is a criminal action against the
inspectors if they have violated the law and not to nullify the votes of innocent voters.
The defendant-appellant further alleges that in the municipality of San Felipe Nery, a
number of voters voted who were not residents of said municipality. That question was
presented to the court below, and upon a full consideration he refused to nullify the election
in said municipality upon the grounds alleged. While it is true that the proof shows that some
grave irregularities were committed by the board of inspectors, we are not persuaded that
the evidence is sufficient to justify this court in nullifying the entire vote of said municipality.
In view of that conclusion. we deem it unnecessary to discuss the other allegations of the
defendant-appellant with reference to the striking out of certain allegations in his answer.
The lower court, after hearing the evidence and after examining the ballots cast in
the municipality of Taytay, found that 50 ballots which had been counted for the defendant
appellant should not be counted for him and ordered that the total vote of the defendantappellant should be reduced by that number. The defendant-appellant in fact admits that the
said 50 votes should be deducted from his total vote. In view of that admission of the
defendant-appellant, we deem it unnecessary to discuss the reasons therefor.
Upon the various errors assigned, our conclusions are:
(1) That the total votes cast in the municipality of Binangonan should be counted for
the respective candidates; that for the special reasons given, the board of inspectors was
justified in keeping the polls open after the hour for closing. But this conclusion must not be
interpreted to mean that under other circumstances and other conditions, where the polls are
kept open after the hour for fraudulent purposes, that such act on the part of the inspectors
might not nullify the entire election (Gardiner vs. Romulo, 26 Phil. Rep., 521);
(2) That while it is irregular for the board of inspectors to permit incapacitated voters
to vote without taking the oath and for one inspector only to assist such voters, yet the
ballots of the innocent voters should not be nullified on that account; that the ballots of such
persons only should be annulled when identified;
(3) That inasmuch as the voting booths in the municipality of Antipolo were prepared
in a manner and form which permitted the voter to prepare his ballot in absolute secrecy, the
vote of that municipality should not be nullified; and

(4) That the judgment of the lower court reducing the total vote of the defendantappellant by fifty identified fraudulent ballots counted for him, in the municipality of Taytay,
should be affirmed.
As a result of the count of the ballots, cast in the various municipalities by the
provincial board of inspectors, Eulogio Rodriguez received 4,321 votes, Jose Lino Luna
received 4,157 votes and Servando de los Angeles received 3,576 votes. Servando de los
Angeles did not protest the election. From all of the foregoing, the total votes of Eulogio
Rodriguez must be reduced by 50 votes, leaving him a total of 4,271 only, or a clear majority
of 114 votes.
Therefore, with the modification herein indicated, the judgment of the lower court is
affirmed as modified, and it is hereby ordered and decreed that the record be immediately
returned to the lower court with direction that a judgment be entered directing and ordering
the provincial board of inspectors to amend its count accordingly.
It is so ordered, without any finding as to costs.

Arellano, C.J., Torres, Street, Malcolm and Avancea, JJ., concur.

||| (Luna v. Rodriguez, G.R. No. 13744, [November 29, 1918], 39 PHIL 208-226)

EN BANC
[G.R. No. 154198. January 20, 2003.]
PETRONILA S. RULLODA, petitioner, vs. COMMISSION ON ELECTIONS
(COMELEC), ELECTION OFFICER LUDIVICO L. ASUNCION OF SAN
JACINTO, PANGASINAN; BARANGAY BOARD OF CANVASSERS OF
BRGY. STO. TOMAS, SAN JACINTO, PANGASINAN, Board of Election
Tellers of Prec. Nos. 30A/30A1, 31A, 31A1, and 32A1, and REMEGIO
PLACIDO, respondents.

Pimentel Apostol Sibayan Law Office for petitioner.

The Solicitor General for public respondent.
Mario L. Cera for private respondent R. Placido.
SYNOPSIS
In the barangay elections of July, 2002, Romeo Rulloda and Remegio Placido were the
contending candidates for Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan. Before
elections were held, however, Romeo died and petitioner Petronila Rulloda sought to run as
candidate in lieu of her late husband. Petronila won the election, but the Board of Canvassers
proclaimed Placido as the winner. Hence, this petition.
Private respondent contended that under Sec. 77 of the Omnibus Elections Code, substitution of
candidates is not allowed; that inasmuch as the barangay election is non-partisan, there can be
no substitution because there is no political party from which to designate the substitute. The
Court ruled that such interpretation, aside from being non sequitur, ignored the purpose of
election laws which is to give effect to the will of the voters. The absence of a specific provision
governing substitution of candidates in barangay elections can not be inferred as a prohibition
against said substitution. Further, technicalities and procedural niceties in election cases should
not be made to stand in the way of the true will of the electorate. Petitioner should be
proclaimed as the duly elected Barangay Chairman.
SYLLABUS
1. POLITICAL LAW; ELECTION; ELUCIDATED. In our jurisdiction, an election means the choice
or selection of candidates to public office by popular vote through the use of the ballot, and the

elected officials which are determined through the will of the electorate. An election is the
embodiment of the popular will, the expression of the sovereign power of the people. The winner
is the candidate who has obtained a majority or plurality of valid votes cast in the election. Sound
policy dictates that public elective offices are filled by those who receive the highest number of
votes cast in the election for that office. For, in all republican forms of government the basic idea
is that no one can be declared elected and no measure can be declared carried unless he or it
receives a majority or plurality of the legal votes cast in the election.
2. ID.; ELECTIONS; SUBSTITUTION OF CANDIDATE IN BARANGAY ELECTIONS; NOT
PROHIBITED. Respondents base their argument that the substitution of candidates is not
allowed in barangay elections on Section 77 of the Omnibus Elections Code. Private respondent
argues that inasmuch as the barangay election is non-partisan, there can be no substitution
because there is no political party from which to designate the substitute. Such an interpretation,
aside from being non sequitur, ignores the purpose of election laws which is to give effect to,
rather than frustrate, the will of the voters. It is a solemn duty to uphold the clear and
unmistakable mandate of the people. It is well-settled that in case of doubt, political laws must
be so construed as to give life and spirit to the popular mandate freely expressed through the
ballot. Contrary to respondent's claim, the absence of a specific provision governing substitution
of candidates in barangay elections can not be inferred as a prohibition against said substitution.
Such a restrictive construction cannot be read into the law where the same is not written.
Indeed, there is more reason to allow the substitution of candidates where no political parties are
involved than when political considerations or party affiliations reign, a fact that must have been
subsumed by law. Technicalities and procedural niceties in election cases should not be made to
stand in the way of the true will of the electorate. Laws governing election contests must be
liberally construed to the end that the will of the people in the choice of public officials may not
be defeated by mere technical objections. cDTaSH

DECISION

YNARES-SANTIAGO, J p:
In the barangay elections of July 15, 2002, Romeo N. Rulloda and Remegio L. Placido were the
contending candidates for Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan. On June
22, 2002, Romeo suffered a heart attack and passed away at the Mandaluyong City Medical
Center. 1
His widow, petitioner Petronila "Betty" Rulloda, wrote a letter to the Commission on Elections on
June 25, 2002 seeking permission to run as candidate for Barangay Chairman of Sto. Tomas in
lieu of her late husband. 2 Petitioner's request was supported by the Appeal-Petition containing

several signatures of people purporting to be members of the electorate of Barangay Sto. Tomas.
3
On July 14, 2002, Election Officer Ludivico L. Asuncion issued a directive to the Chairman and
Members of the Barangay Board of Canvassers of Sto. Tomas as follows:
Just in case the names "BETTY" or "PETRONILA" or the surname "RULLODA" is
written on the ballot, read the same as it is written but add the words "NOT
COUNTED" like "BETTY NOT COUNTED" or "RULLODA NOT COUNTED." 4
Based on the tally of petitioner's watchers who were allowed to witness the canvass of votes
during the July 15, 2002 elections, petitioner garnered 516 votes while respondent Remegio
Placido received 290 votes. 5 Despite this, the Board of Canvassers proclaimed Placido as the
Barangay Chairman of Sto. Tomas. 6
After the elections, petitioner learned that the COMELEC, acting on the separate requests of
Andres Perez Manalaysay and Petronila Rulloda to be substituted as candidates for Barangay
Chairman of Barangay La Fuente, Sta. Rosa, Nueva Ecija and Barangay Sto. Tomas, San Jacinto,
Pangasinan, respectively, issued Resolution No. 5217 dated July 13, 2002 which states:
PREMISES CONSIDERED, the Commission RESOLVED, as it hereby RESOLVES,
to ADOPT the recommendation of the Law Department as follows:
1. To deny due course the Certificates of Candidacy of ANDRES PEREZ
MANALAYSAY and PETRONILA S. RULLODA; and
2. To direct the Election Officer of Sta. Rosa, Nueva Ecija and San Jacinto,
Pangasinan to delete the name of ANDRES PEREZ MANALAYSAY, candidate for
Barangay Chairman in Barangay La Fuente, Sta. Rosa, Nueva Ecija; and the
name of PETRONILA S. RULLODA, candidate for Barangay Captain in Barangay
Sto. Tomas, San Jacinto, Pangasinan.
Let the Law Department implement this resolution.
SO ORDERED. 7
The above-quoted Resolution cited as authority the COMELEC's Resolution No. 4801 dated May
23, 2002, setting forth the guidelines on the filing of certificates of candidacy in connection with
the July 15, 2002 synchronized Barangay and Sangguniang Kabataan elections, more particularly
Section 9 thereof which reads:

Sec. 9. Substitution of candidates. There shall be no substitution of

candidates for barangay and sangguniang kabataan officials. 8
Hence, petitioner filed the instant petition for certiorari, seeking to annul Section 9 of Resolution
No. 4801 and Resolution No. 5217, both of the COMELEC, insofar as they prohibited petitioner
from running as substitute candidate in lieu of her deceased husband; to nullify the proclamation
of respondent; and to proclaim her as the duly elected Barangay Chairman of Sto. Tomas, San
Jacinto, Pangasinan.
Private respondent Remegio Placido filed his Comment, arguing that since the barangay election
is non-partisan, substitution of candidates is not allowed. Moreover, petitioner did not file any
certificate of candidacy; hence, there was only one candidate for Barangay Chairman of Sto.
Tomas, namely, respondent Placido. 9

official candidate of a registered or accredited political party dies, withdraws or

is disqualified for any cause, only a person belonging to, and certified by the
same political party may file a certificate of candidacy to replace the candidate
who died, withdrew or was disqualified. The substitute candidate nominated by
the political party concerned may file his certificate of candidacy for the office
affected in accordance with the preceding sections not later than mid-day of
the election. If the death, withdrawal or disqualification should occur between
the day before the election and mid-day of election day, said certificate may be
filed with any board of election inspectors in the political subdivision where he
is a candidate or, in the case of candidates to be voted by the entire electorate
of the country, with the Commission.

Public respondent COMELEC also filed its Comment. It contends that its Resolution No. 4801 was
issued not pursuant to its quasi-judicial functions but as an incident of its inherent administrative
functions over the conduct of the barangay elections. Therefore, the same may not be the
subject of review in a petition for certiorari. Further, the COMELEC alleges that it did not commit
grave abuse of discretion in denying due course to petitioner's certificate of candidacy and in
proclaiming respondent considering that he was the only candidate for Barangay Chairman of
Sto. Tomas. 10

Private respondent argues that inasmuch as the barangay election is non-partisan, there can be
no substitution because there is no political party from which to designate the substitute. Such an
interpretation, aside from being non sequitur, ignores the purpose of election laws which is to
give effect to, rather than frustrate, the will of the voters. 12 It is a solemn duty to uphold the
clear and unmistakable mandate of the people. It is well-settled that in case of doubt, political
laws must be so construed as to give life and spirit to the popular mandate freely expressed
through the ballot. 13

We find merit in the petition.

Contrary to respondent's claim, the absence of a specific provision governing substitution of

candidates in barangay elections can not be inferred as a prohibition against said substitution.
Such a restrictive construction cannot be read into the law where the same is not written.
Indeed, there is more reason to allow the substitution of candidates where no political parties are
involved than when political considerations or party affiliations reign, a fact that must have been
subsumed by law.

At the outset, there is no dispute that petitioner garnered 516 votes while respondent got only
290 votes. Respondents did not deny this in their respective Comments.
In our jurisdiction, an election means the choice or selection of candidates to public office by
popular vote through the use of the ballot, and the elected officials which are determined
through the will of the electorate. An election is the embodiment of the popular will, the
expression of the sovereign power of the people. The winner is the candidate who has obtained a
majority or plurality of valid votes cast in the election. Sound policy dictates that public elective
offices are filled by those who receive the highest number of votes cast in the election for that
office. For, in all republican forms of government the basic idea is that no one can be declared
elected and no measure can be declared carried unless he or it receives a majority or plurality of
the legal votes cast in the election. 11
Respondents base their argument that the substitution of candidates is not allowed in barangay
elections on Section 77 of the Omnibus Elections Code, which states:
Section 77. Candidates in case of death, disqualification or withdrawal of
another. If after the last day of the filing of certificates of candidacy, an

Private respondent likewise contends that the votes in petitioner's favor can not be counted
because she did not file any certificate of candidacy. In other words, he was the only candidate
for Barangay Chairman. His claim is refuted by the Memorandum of the COMELEC Law
Department as well as the assailed Resolution No. 5217, wherein it indubitably appears that
petitioner's letter-request to be allowed to run as Barangay Chairman of Sto. Tomas in lieu of her
late husband was treated as a certificate of candidacy. 14
To reiterate, it was petitioner who obtained the plurality of votes in the contested election.
Technicalities and procedural niceties in election cases should not be made to stand in the way of
the true will of the electorate. Laws governing election contests must be liberally construed to the
end that the will of the people in the choice of public officials may not be defeated by mere
technical objections. 15

Election contests involve public interest, and technicalities and procedural

barriers must yield if they constitute an obstacle to the determination of the
true will of the electorate in the choice of their elective officials. The Court
frowns upon any interpretation of the law that would hinder in any way not
only the free and intelligent casting of the votes in an election but also the
correct ascertainment of the results. 16
WHEREFORE, in view of the foregoing, the instant petition is GRANTED. The assailed Resolution
No. 5217 of the Commission on Elections, insofar as it denied due course to petitioner's
certificate of candidacy, is declared NULL and VOID. The proclamation of respondent Remegio L.
Placido as Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan is SET ASIDE, and the
Board of Canvassers of the said Barangay is ORDERED to proclaim petitioner as the duly elected
Barangay Chairman thereof. CTDAaE

EN BANC
[G.R. No. 142907. November 29, 2000.]
JOSE EMMANUEL L. CARLOS, petitioner, vs. HON. ADORACION G.

ANGELES, IN HER CAPACITY AS THE ACTING PRESIDING JUDGE OF

THE REGIONAL TRIAL COURT IN CALOOCAN CITY (BRANCH 125) and
ANTONIO M. SERAPIO, respondents.
Pimentel Yusingco Pimentel & Garcia Law Offices for petitioner.
Pete Quirino-Quadra for private respondent.

SO ORDERED.
SYNOPSIS
||| (Rulloda v. COMELEC, G.R. No. 154198, [January 20, 2003], 443 PHIL 649-656)
On May 21, 1998, the Municipal Board of Canvassers, Valenzuela, Metro Manila, proclaimed
petitioner Jose Emmanuel L. Carlos as the duly elected mayor of Valenzuela having obtained
102,688 votes, the highest number of votes, over that of respondent Antonio M. Serapio who
obtained 77,270 votes. On June 1, 1998, respondent filed with the Regional Trial Court,
Valenzuela, Metro Manila, an election protest challenging the election results. The RTC of
Caloocan City, Branch 125, rendered its decision and set aside the final tally of valid votes
because of its finding of "significant badges of fraud." Despite the plurality of valid votes in favor
of protestee Carlos, the trial court set aside his proclamation and declared protestant Serapio as
duly elected mayor of Valenzuela City. On May 4, 2000, petitioner appealed to the Comelec, but
on May 8, 2000, petitioner filed the instant petition for certiorari and prohibition.
The Supreme Court found the petition meritorious. Both the Supreme Court and Comelec have
concurrent jurisdiction to issue writs of certiorari, prohibition and mandamus over decisions of
regional trial courts in election cases involving elective municipal officials. The court that takes
jurisdiction first shall exercise exclusive jurisdiction over the case, which in this case is the
Supreme Court. Petitioner's appeal to the Comelec would not bar the present action for certiorari
because appeal is not a speedy and adequate remedy. The proper remedy is an action before the
Comelec en banc to declare a failure of election or to annul the election. However, the case
below was an election protest case involving an elective municipal position which falls within the
jurisdiction of the regional trial court. Petitioner admittedly received 17,007 valid votes more than
the respondent and, therefore, the nullification of the election would not lie. Elections are won on
the basis of a majority or plurality of votes cast and received by the candidates. The trial court
gravely abused its discretion in rendering the decision proclaiming respondent Serapio the duly
elected mayor of Valenzuela, Metro Manila, on the basis of its perception of the voice of the
people of Valenzuela, even without a majority or plurality votes cast in his favor. Contrary to its

own finding that petitioner obtained 83,600 valid votes against 66,602 valid votes for the
respondent as second placer, or a plurality of 17,007 votes, the trial court declared the second
placer as the winner, a blatant abuse of judicial discretion.
SYLLABUS
1. POLITICAL LAW; COMMISSION ON ELECTIONS; SUPREME COURT AND COMELEC HAVE
CONCURRENT JURISDICTION TO ISSUE WRITS OF CERTIORARI, PROHIBITION AND
MANDAMUS OVER DECISIONS OF TRIAL COURT OF GENERAL JURISDICTION IN ELECTION
CASES INVOLVING ELECTIVE MUNICIPAL OFFICIALS. The Comelec has original jurisdiction to
issue writs of certiorari, prohibition and mandamus involving election cases in aid of its appellate
jurisdiction. This point has been settled in the case of Relampagos vs. Cumba, where we held:
"In the face of the foregoing disquisitions, the court must, as it now does, abandon the ruling in
the Garcia and Uy and Veloria cases. We now hold that the last paragraph of Section 50 of B.P.
Blg. 697 providing as follows: The Commission is vested with exclusive authority to hear and
decide petitions for certiorari, prohibition and mandamus involving election cases. remains in full
force and effect but only in such cases where, under paragraph (2), Section 1, Article IX-C of the
Constitution, it has exclusive appellate jurisdiction. Simply put, the COMELEC has the authority to

issue the extraordinary writs of certiorari, prohibition, and mandamus only in aid of its
appellate jurisdiction." Consequently, both the Supreme Court and Comelec have concurrent
jurisdiction to issue writs of certiorari, prohibition, and mandamus over decisions of trial courts of
general jurisdiction (regional trial courts) in election cases involving elective municipal officials.
The Court that takes jurisdiction first shall exercise exclusive jurisdiction over the case. Ergo, this
Court has jurisdiction over the present petition of certiorari as a special civil action expressly
conferred on it and provided for in the Constitution.
2. ID.; ID.; ELECTION; EXPLAINED; A DEFEATED CANDIDATE CANNOT BE DEEMED ELECTED TO
THE OFFICE. In this jurisdiction, an election means "the choice or selection of candidates to
public office by popular vote" through the use of the ballot, and the elected officials of which are
determined through the will of the electorate. "An election is the embodiment of the popular will,
the expression of the sovereign power of the people." "Specifically, the term 'election,' in the
context of the Constitution, may refer to the conduct of the polls, including the listing of voters,
the holding of the electoral campaign, and the casting and counting of votes." The winner is the
candidate who has obtained a majority or plurality of valid votes cast in the election. "Sound
policy dictates that public elective offices are filled by those who receive the highest number of
votes cast in the election for that office. For, in all republican forms of government the basic idea
is that no one can be declared elected and no measure can be declared carried unless he or it
receives a majority or plurality of the legal votes cast in the election." In case of protest, a
revision or recount of the ballots cast for the candidates decides the election protest case. The
candidate receiving the highest number or plurality of votes shall be proclaimed the winner. Even
if the candidate receiving the majority votes is ineligible or disqualified, the candidate receiving

the next highest number of votes or the second placer, can not be declared elected. "The wreath
of victory cannot be transferred from the disqualified winner to the repudiated loser because the
law then as now only authorizes a declaration of election in favor of the person who has obtained
a plurality of votes and does not entitle a candidate receiving the next highest number of votes to
be declared elected." In other words, "a defeated candidate cannot be deemed elected to the
office."
3. ID.; ID.; ELECTION; ELECTIONS ARE WON ON THE BASIS OF THE MAJORITY OR PLURALITY
OF VOTES CAST AND RECEIVED BY THE CANDIDATES. The annulment of an election on the
ground of fraud, irregularities and violations of election laws may be raised as an incident to an
election contest. Such grounds for annulment of an election may be invoked in an election
protest case. However, an election must not be nullified and the voters disenfranchised whenever
it is possible to determine a winner on the basis of valid votes cast, and discard the illegally cast
ballots. In this case, the petitioner admittedly received 17,007 valid votes more than the
protestee, and therefore the nullification of the election would not lie. The power to nullify an
election must be exercised with the greatest care with a view not to disenfranchise the voters,
and only under circumstances that clearly call for such drastic remedial measure. As heretofore
stated, in this jurisdiction, elections are won on the basis of a majority or plurality of votes cast
and received by the candidates. "The right to hold an elective office is rooted on electoral
mandate, not perceived entitlement to the office."
4. ID.; ID.; FAILURE OF ELECTIONS; INSTANCES WHERE A FAILURE OF ELECTIONS MAY BE
DECLARED. In a petition to annul an election under Section 6, Batas Pambansa Blg. 881, two
conditions must be averred in order to support a sufficient cause of action. These are: (1) the
illegality must affect more than 50% of the votes cast and (2) the good votes can be
distinguished from the bad ones. It is only when these two conditions are established that the
annulment of the election can be justified because the remaining votes do not constitute a valid
constituency. We have held that: "To declare a failure of election, two (2) conditions must occur:
first, no voting has taken place in the precincts concerned on the date fixed by law or, even if
there were voting, the election nevertheless resulted in a failure to elect; and, second, the votes
not cast would affect the result of the election." Neither of these conditions was present in the
case at bar. More recently, we clarified that, "Under the pertinent codal provision of the Omnibus
Election Code, there are only three (3) instances where a failure of elections may be declared,
namely: (a) the election in any polling place has not been held on the date fixed on account of
force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any
polling place had been suspended before the hour fixed by law for the closing of the voting on
account of force majeure, violence, terrorism, fraud, or other analogous causes; or (c) after the
voting and during the preparation and transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect on account of force majeure, violence,
terrorism, fraud, or other analogous causes."

5. ID.; ID.; PROCLAIMING A MAYORIAL CANDIDATE WINNER IN THE ELECTION ON THE BASIS
OF PERCEPTION OF THE VOICE OF THE PEOPLE, EVEN WITHOUT A MAJORITY OR PLURALITY
VOTES CAST IN HIS FAVOR IS VOID. We find that the trial court committed a grave abuse of
discretion amounting to lack or excess of jurisdiction in rendering its decision proclaiming
respondent Serapio the duly elected mayor of Valenzuela, Metro Manila, on the basis of its
perception of the voice of the people of Valenzuela, even without a majority or plurality votes
cast in his favor. In fact, without a single vote in his favor as the trial court discarded all the
votes. Thus, the decision is not supported by the highest number of valid votes cast in his favor.
This violated the right to due process of law of petitioner who was not heard on the issue of
failure of election, an issue that was not raised by the protestant. "A decision is void for lack of
due process if, as a result, a party is deprived of the opportunity of being heard." The trial court
can not decide the election protest case outside the issues raised. If it does, as in this case, the
trial court is ousted of its jurisdiction. Likewise, it is a basic principle that a decision with
absolutely nothing to support it is void. "A void decision may be assailed or impugned at any time
either directly or collaterally, by means of a petition filed in the same case or by means of a
separate action, or by resisting such decision in any action or proceeding where it is invoked."
Here, the trial court indulged in speculations on its view of the voice of the people, and decided
the case disregarding the evidence, but on its own intuition, ipse dixit. How was this voice
communicated to the trial court? Certainly not by competent evidence adduced before the court
as it should be, but by extra-sensory perception. This is invalid in law. Contrary to its own finding
that petitioner obtained 83,600 valid votes against 66,602 valid votes for the respondent as
second placer, or a plurality of 17,007 votes, the trial court declared the second placer as the
winner. This is a blatant abuse of judicial discretion by any account. It is a raw exercise of judicial
function in an arbitrary or despotic manner, amounting to evasion of the positive duty to act in
accord with law. HSCATc

6. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; EXPLAINED. In a special civil

action for certiorari, the burden is on petitioner to prove not merely reversible error, but grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the public
respondent Judge. "By grave abuse of discretion is meant capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must
be grave abuse of discretion as when the power is exercised in an arbitrary or despotic manner
by reason of passion or personal hostility, and must be so patent and so gross as to amount to
an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law." We must emphasize that election to office is determined by the highest
number of votes obtained by a candidate in the election.

DECISION

PARDO, J p:

The Case
The case before the Court is an original special civil action for certiorari and prohibition with
preliminary injunction or temporary restraining order seeking to annul the decision of the
Regional Trial Court, Caloocan City, Branch 125, the dispositive portion of which reads as follows:
"WHEREFORE, premises considered, the proclamation of the Protestee, Jose
Emmanuel Carlos, by the Board of Canvassers is accordingly SET ASIDE.
EcDTIH
"The Court hereby FINDS the Protestant, ANTONIO SERAPIO, as the DULY
ELECTED MAYOR OF VALENZUELA CITY.
"SO ORDERED." 1

The Facts
Petitioner Jose Emmanuel L. Carlos and respondent Antonio M. Serapio were candidates for the
position of mayor of the municipality of Valenzuela, Metro Manila (later converted into a City)
during the May 11, 1998 elections.
On May 21, 1998, the Municipal Board of Canvassers, Valenzuela, Metro Manila proclaimed
petitioner as the duly elected mayor of Valenzuela having obtained 102,688 votes, the highest
number of votes in the election returns.
On June 1, 1998, respondent Antonio M. Serapio who obtained 77,270 votes, the second highest
number of votes, filed with the Regional Trial Court, Valenzuela, Metro Manila, an election protest
challenging the results. Due to the inhibition of all judges of the Regional Trial Court in
Valenzuela, the case was ultimately assigned to the Regional Trial Court, Caloocan City, Branch
125, presided over by respondent Judge Adoracion G. Angeles.
On June 26, 1998, petitioner filed with the trial court an answer with affirmative defenses and
motion to dismiss. The court denied the motion to dismiss by order dated January 14, 1999.
Petitioner elevated the order to the Commission on Elections (Comelec) on petition for certiorari
and prohibition, 2 which, however, has remained unresolved up to this moment.
In the course of the protest, the municipal treasurer of Valenzuela, who by law has custody of
the ballot boxes, collected the ballot boxes and delivered them to the Regional Trial Court,
Caloocan City. The trial court conducted a pre-trial conference of the parties but it did not

produce a substantial result as the parties merely paid superficial service and only agreed on the
following:
1. Both parties admit their capacity to sue and be sued;
2. Both parties admit that the protestant was a candidate during the May 11,
1998 election;
3. Both parties admit that the protestee has been proclaimed as the elected
mayor of Valenzuela, Metro Manila, on May 21, 1998;
4. Both parties admit that the protestee allegedly obtained 102,688 votes while
the protestant obtained 77,270 votes per canvass of election returns of
the Board of Canvassers.
The pre-trial was then concluded and the parties agreed to the creation of seven (7) revision
committees consisting of a chairman designated by the court and two members representing the
protestant and the protestee.
Meantime, on May 12, 1999, petitioner filed a consolidated motion that included a prayer for
authority to photocopy all the official copies of the revision reports in the custody of the trial
court. However, the trial court denied the issuance of such authorization. 3 The court likewise
denied a motion for reconsideration of the denial. 4 Then petitioner raised the denial to the
COMELEC on petition for certiorari and mandamus, 5 which also remains unresolved until this
date. HEcaIC

The Revision Results

The revision of the ballots showed the following results:
(1) Per physical count of the ballots:
(a) protestant Serapio 76,246 votes.

(a) protestant Serapio 66,602 votes.

(b) protestee Carlos 83,609 votes, giving the latter a winning
margin of 17,007votes.

The Trial Court's Ruling

Nevertheless, in its decision, the trial court set aside the final tally of valid votes because of its
finding of "significant badges of fraud," namely:
1. The keys turned over by the City Treasurer to the court did not fit into the
padlocks of the ballot boxes that had to be forcibly opened;
2. Seven (7) ballot boxes did not contain any ballot and two (2) ballot boxes
out of the seven (7) ballot boxes did not contain any election returns;
3. Some schools where various precincts were located experienced brownouts
during the counting of votes causing delay in the counting although
there was no undue commotion or violence that occurred;
4. Some of the assigned watchers of protestant were not in their posts during
the counting of votes.
On the basis of the foregoing badges of fraud, the trial court declared that there was enough
pattern of fraud in the conduct of the election for mayor in Valenzuela. The court held that the
fraud was attributable to the protestee who had control over the election paraphernalia and the
basic services in the community such as the supply of electricity.
On April 24, 2000, the trial court rendered a judgment ruling that the perpetuation of fraud had
undoubtedly suppressed the true will of the electorate of Valenzuela and substituted it with the
will of the protestee. Notwithstanding the plurality of valid votes in favor of the protestee, the
trial court set aside the proclamation of protestee Jose Emmanuel Carlos by the Municipal Board
of Canvassers and declared protestant Antonio M. Serapio as the duly elected mayor of
Valenzuela City. 6

(b) protestee Carlos 103,551 votes.

(2) Per revision, the court invalidated 9,697 votes of the protestant but validated 53 stray votes
in his favor.
The court invalidated 19,975 votes of the protestee and validated 33 stray votes in his favor.
The final tally showed:

Hearing news that the protestant had won the election protest, protestee secured a copy of the
decision from the trial court on May 4, 2000. On the other hand, notice of the decision was
received by the protestant on May 03, 2000. CSTEHI
On May 4, 2000, protestant filed with the trial court a motion for execution pending appeal. 7 On
May 4, 2000, the trial court gave protestee five (5) days within which to submit his comment or
opposition to the motion. 8

Petitioner's Appeal to Comelec

Meantime, on May 04, 2000, petitioner filed a notice of appeal from the decision of the trial court
to the Commission on Elections. 9

On May 8, 2000, we issued a temporary restraining order ordering respondent court to cease and
desist from further taking cognizance of Election Protest No. 14-V-98 more specifically from
taking cognizance of and acting on the Motion for Execution Pending Appeal filed by respondent
Serapio on May 4, 2000. 12

The Petition at bar

Respondent's Position

On May 8, 2000, petitioner filed the present recourse. 10

Petitioner raised the following legal basis:
(1) The Supreme Court has original jurisdiction to entertain special civil actions
of certiorari and prohibition;
(2) There are important reasons and compelling circumstances which justify
petitioner's direct recourse to the Supreme Court;
(3) Respondent judge committed grave abuse of discretion when she declared
respondent Serapio as the duly elected mayor of Valenzuela despite
the fact that she found that petitioner obtained 17,007 valid votes
higher than the valid votes of respondent Serapio;

On May 15, 2000, respondent Serapio filed his comment with omnibus motion to lift the
temporary restraining order and to declare petitioner in contempt of court for violating the rule
against forum shopping. 13 He submitted that Comelec and not the Supreme Court has
jurisdiction over the present petition for certiorari assailing the decision dated April 24, 2000 of
the regional trial court. Assuming that this Court and Comelec have concurrent jurisdiction and
applying the doctrine of primary jurisdiction, the Comelec has jurisdiction since petitioner has
perfected his appeal therewith before the filing of the instant petition. Certiorari cannot be a
substitute for an appeal; the present petition is violative of Revised Circular No. 28-91 on forumshopping; issues raised are factual, not correctable by certiorari; and that the temporary
restraining order should be lifted, the petition dismissed, and petitioner and counsel should be
made to explain why they should not be punished for contempt of court. CaSHAc

The Court's Ruling

(4) The assailed decision is contrary to law, based on speculations and not
supported by the evidence as shown in the decision itself. 11

The Issues
The issues raised are the following:
1. Whether the Supreme Court has jurisdiction to review, by petition for
certiorari as a special civil action, the decision of the regional trial court
in an election protest case involving an elective municipal official
considering that it has no appellate jurisdiction over such decision.
2. Whether the trial court acted without jurisdiction or with grave abuse of
discretion when the court set aside the proclamation of petitioner and
declared respondent Serapio as the duly elected mayor of Valenzuela
City despite its finding that petitioner garnered 83,609 valid votes
while respondent obtained 66,602 valid votes, or a winning margin of
17,007 votes.

We find the petition impressed with merit. 14

I. The Supreme Court is vested with original jurisdiction to issue writs of
certiorari, prohibition and mandamus against the decision of the
regional trial court in the election protest case before it, regardless of
whether it has appellate jurisdiction over such decision.
Article VIII, Section 5 (1) of the 1987 Constitution provides that:
"SECTION 5. The Supreme Court shall have the following powers:
"(1) Exercise original jurisdiction over cases affecting ambassadors, other
public ministers and consuls, and over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus."
xxx xxx xxx
Rule 65, Section 1 of the 1997 Rules of Civil Procedure, as amended, provides that:

TRO Issued

"SECTION 1. Petition for certiorari. When any tribunal, board or officer

exercising judicial or quasi-judicial functions has acted without or in excess of
its or his jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal, or any plain, speedy, and
adequate remedy in the course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and
praying that judgment be rendered annulling or modifying the proceedings of
such tribunal, board or officer, and granting such incidental reliefs as law and
justice may require.
The petition shall be accompanied by a certified true copy of the judgment,
order or resolution subject thereof, copies of all pleadings and documents
relevant and pertinent thereto, and a sworn certification of non-forum
shopping as provided in the third paragraph of Section 3, Rule 46."
By Constitutional fiat, the Commission on Election (Comelec) has appellate jurisdiction over
election protest cases involving elective municipal officials decided by courts of general
jurisdiction, as provided for in Article IX (C), Section 2 of the 1987 Constitution:
"SECTION 2. The Commission on Elections shall exercise the following powers
and functions:

remains in full force and effect but only in such cases where, under paragraph
(2), Section 1, Article IX-C of the Constitution, it has exclusive appellate
jurisdiction. Simply put, the COMELEC has the authority to issue the

extraordinary writs of certiorari, prohibition, and mandamus only in aid of its

appellate jurisdiction." (Italics supplied).
Consequently, both the Supreme Court and Comelec have concurrent jurisdiction to issue writs of
certiorari, prohibition, and mandamus over decisions of trial courts of general jurisdiction
(regional trial courts) in election cases involving elective municipal officials. The Court that takes
jurisdiction first shall exercise exclusive jurisdiction over the case. 17

Ergo, this Court has jurisdiction over the present petition of certiorari as a special civil action
expressly conferred on it and provided for in the Constitution.
Relative to the appeal that petitioner filed with the COMELEC, the same would not bar the
present action as an exception to the rule because under the circumstances, appeal would not be
a speedy and adequate remedy in the ordinary course of law. 18 The exception is sparingly
allowed in situations where the abuse of discretion is not only grave and whimsical but also
palpable and patent, and the invalidity of the assailed act is shown on its face.
II. Certiorari lies. The trial court acted with grave abuse of discretion
amounting to lack or excess of jurisdiction. Its decision is void.

"(1) . . . .
"(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns and qualifications of all elective regional, provincial, and city
officials, and appellate jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction, or involving elective
barangay officials decided by trial courts of limited jurisdiction." DHATcE
In like manner, the Comelec has original jurisdiction to issue writs of certiorari, prohibition and
mandamus involving election cases in aid of its appellate jurisdiction. 15 This point has been
settled in the case of Relampagos vs. Cumba, 16 where we held:
"In the face of the foregoing disquisitions, the court must, as it now does,
abandon the ruling in the Garcia and Uy and Veloria cases. We now hold that
the last paragraph of Section 50 of B.P. Blg. 697 providing as follows:
The Commission is vested with exclusive authority to hear and decide
petitions for certiorari, prohibition and mandamus involving election
cases.

The next question that arises is whether certiorari lies because the trial court committed a grave
abuse of discretion amounting to lack or excess of jurisdiction in deciding the way it did Election
Protest Case No. 14-V-98, declaring respondent Serapio as the duly "elected" mayor of
Valenzuela, Metro Manila.
In this jurisdiction, an election means "the choice or selection of candidates to public office by
popular vote" 19 through the use of the ballot, and the elected officials of which are determined
through the will of the electorate. 20 "An election is the embodiment of the popular will, the
expression of the sovereign power of the people." 21 "Specifically, the term 'election,' in the
context of the Constitution, may refer to the conduct of the polls, including the listing of voters,
the holding of the electoral campaign, and the casting and counting of votes." 22 The winner is
the candidate who has obtained a majority or plurality of valid votes cast in the election. 23
"Sound policy dictates that public elective offices are filled by those who receive the highest
number of votes cast in the election for that office. For, in all republican forms of government the
basic idea is that no one can be declared elected and no measure can be declared carried unless
he or it receives a majority or plurality of the legal votes cast in the election." 24 In case of
protest, a revision or recount of the ballots cast for the candidates decides the election protest
case. The candidate receiving the highest number or plurality of votes shall be proclaimed the
winner. Even if the candidate receiving the majority votes is ineligible or disqualified, the

candidate receiving the next highest number of votes or the second placer, can not be declared
elected. 25 "The wreath of victory cannot be transferred from the disqualified winner to the
repudiated loser because the law then as now only authorizes a declaration of election in favor of
the person who has obtained a plurality of votes and does not entitle a candidate receiving the
next highest number of votes to be declared elected." 26 In other words, "a defeated candidate
cannot be deemed elected to the office." 27
"Election contests involve public interest, and technicalities and procedural barriers should not be
allowed to stand if they constitute an obstacle to the determination of the true will of the
electorate in the choice of their elective officials. Laws governing election contests must be
liberally construed to the end that the will of the people in the choice of public officials may not
be defeated by mere technical objections. In an election case, the court has an imperative duty
to ascertain by all means within its command who is the real candidate elected by the electorate.
The Supreme Court frowns upon any interpretation of the law or the rules that would hinder in
any way not only the free and intelligent casting of the votes in an election but also the correct
ascertainment of the results." 28 CDTHSI
In this case, based on the revision of ballots, the trial court found that:

court concluded that the real keys were lost or the padlocks substituted pointing to possible
tampering of the contents of the ballot boxes.
Procedurally, the keys to the ballot boxes were turned over by the Board of Election Inspectors
from the precinct level to the Municipal Board of Canvassers and finally to the municipal treasurer
for safekeeping. The three-level turn-over of the keys will not prevent the possibility of these
keys being mixed up. This is an ordinary occurrence during elections. The mere inability of the
keys to fit into the padlocks attached to the ballot boxes does not affect the integrity of the
ballots. At any rate, the trial court easily forced open the padlocks and found valid votes cast
therein;

Second: Seven (7) ballot boxes were found empty. Thus, the trial court concluded that there
were "missing ballots" and "missing election returns." This is pure speculation without factual
basis. "The sea of suspicion has no shore, and the court that embarks upon it is without rudder
or compass." 30 On the other hand, the Summary of Votes as revised does not show any
unaccounted precinct or whether there was any precinct without any ballot or election returns. It
is a standard procedure of the Commission on Elections (Comelec) to provide extra empty ballot
boxes for the use of the Board of Election Inspectors or the Board of Canvassers, in case of
necessity. ESHcTD

First, by canvass of the Municipal Board of Canvassers the results were:

Carlos 102,668 votes
Serapio 77,270
votes,
or
a
winning
margin
of
25,418 votes
Ramon Ignacio 20 votes.
and consequently, the Board of Canvassers proclaimed petitioner Carlos the duly elected
mayor of Valenzuela, Metro Manila.
Second, by physical count of the ballots, the results were:
Carlos 103,551 votes
Serapio 76,246
votes,
or
a
winning
margin
of
27,305 votes.
Third, by revision of the ballots, the trial court found in a final tally that the "valid" votes obtained
by the candidates were as follows:
Carlos 83,609 votes
Serapio 66,602
votes,
or
a
winning
margin
of 17,007 votes.
Consequently, the final tally clearly showed petitioner Carlos as the overwhelming winner in the
May 11, 1998 elections.
However, the trial court set aside the final tally of votes because of what the trial court perceived
to be "significant badges of fraud" attributable to the protestee. 29 These are:

First: The failure of the keys turned over by the City Treasurer to the trial court to fit the
padlocks on the ballot boxes that compelled the court to forcibly open the padlocks. The trial

The empty ballot boxes found could be the empty reserve ballot boxes that were not used by the
Board of Election Inspectors or the Board of Canvassers since there was neither proof nor even a
claim of missing ballots or missing election returns.

Third: Some schoolhouses experienced brownout during the counting of votes. There was
nothing extraordinary that would invite serious doubts or suspicion that fraud was committed
during the brownout that occurred. Indeed, one witness stated that it was the first time that he
observed brownout in Dalandanan Elementary School and another stated that the brownout was
localized in Coloong Elementary School. Since counting of votes lasted until midnight, the
brownouts had caused only slight delay in the canvassing of votes because the election officials
availed themselves of candles, flashlights and emergency lights. There were no reports of
cheating or tampering of the election returns. In fact, witnesses testified that the counting of
votes proceeded smoothly and no commotion or violence occurred. So, the brownouts had no
effect on the integrity of the canvass.

Fourth: The absence of watchers for candidate Serapio from their posts during the counting of
votes. This cannot be taken against candidate Carlos since it is the candidate's own look-out to
protect his interest during the counting of votes and canvassing of election returns. As long as
notices were duly served to the parties, the counting and canvassing of votes may validly
proceed in the absence of watchers. Otherwise, candidates may easily delay the counting of

votes or canvassing of returns by simply not sending their watchers. There was no incomplete
canvass of returns, contrary to what the trial court declared. The evidence showed complete
canvass in Valenzuela, Metro Manila. 31
"We cannot allow an election protest on such flimsy averments to prosper , otherwise, the whole
election process will deteriorate into an endless stream of crabs pulling at each other, racing to
disembank from the water." 32
Assuming for the nonce that the trial court was correct in holding that the final tally of valid votes
as per revision report may be set aside because of the "significant badges of fraud," the same
would be tantamount to a ruling that there were no valid votes cast at all for the candidates,
and, thus, no winner could be declared in the election protest case. In short, there was failure of
election.
In such case, the proper remedy is an action before the Commission on Elections en banc to
declare a failure of election or to annul the election. 33 However, the case below was an election
protest case involving an elective municipal position which, under Section 251 of the Election
Code, falls within the exclusive original jurisdiction of the appropriate regional trial court. 34
Nonetheless, the annulment of an election on the ground of fraud, irregularities and violations of
election laws may be raised as an incident to an election contest. Such grounds for annulment of
an election may be invoked in an election protest case. However, an election must not be
nullified and the voters disenfranchised whenever it is possible to determine a winner on the
basis of valid votes cast, and discard the illegally cast ballots. In this case, the petitioner
admittedly received 17,007 valid votes more than the protestee, and therefore the nullification of
the election would not lie. The power to nullify an election must be exercised with the greatest
care with a view not to disenfranchise the voters, and only under circumstances that clearly call
for such drastic remedial measure. 35
As heretofore stated, in this jurisdiction, elections are won on the basis of a majority or plurality
of votes cast and received by the candidates. "The right to hold an elective office is rooted on
electoral mandate, not perceived entitlement to the office." 36
More importantly, the trial court has no jurisdiction to declare a failure of election. 37
Section 6 of the Omnibus Election Code provides that:
"SECTION 6. Failure of Election. If, on account of force majeure, violence,
terrorism, fraud or other analogous causes the election in any polling place has
not been held on the date fixed, or had been suspended before the hour fixed
by law for the closing of the voting, or after the voting and during the
preparation and the transmission of the election returns or in the custody of

canvass thereof, such election results in a failure to elect, and in any of such
cases the failure or suspension of election would affect the result of the
election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or
continuation of the election not held, suspended or which resulted in a failure
to elect on a date reasonably close to the date of the election not held,
suspended or which resulted in a failure to elect but not later than thirty (30)
days after the cessation of the cause of such postponement or suspension of
the election or failure to elect." (Italics supplied) aIcHSC
Likewise, RA 7166 provides that:
"SECTION 4. Postponement, Failure of Election and Special Elections. The
postponement, declaration of failure of election and the calling of special
elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall
be decided by the Commission sitting en banc by a majority vote of its
members. The causes for the declaration of a failure of election may occur
before or after the casting of votes or on the day of the election." (Italics
supplied)
It is the Commission (Comelec) sitting en banc that is vested with exclusive jurisdiction to declare
a failure of election. 38
"In a petition to annul an election under Section 6, Batas Pambansa Blg. 881, two conditions
must be averred in order to support a sufficient cause of action. These are: (1) the illegality must
affect more than 50% of the votes cast and (2) the good votes can be distinguished from the
bad ones. It is only when these two conditions are established that the annulment of the election
can be justified because the remaining votes do not constitute a valid constituency." 39
We have held that: "To declare a failure of election, two (2) conditions must occur: first, no
voting has taken place in the precincts concerned on the date fixed by law or, even if there were
voting, the election nevertheless resulted in a failure to elect; and, second, the votes not cast
would affect the result of the election." 40 Neither of these conditions was present in the case at
bar.
More recently, we clarified that, "Under the pertinent codal provision of the Omnibus Election
Code, there are only three (3) instances where a failure of elections may be declared, namely:
(a) the election in any polling place has not been held on the date fixed on account of force
majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling
place had been suspended before the hour fixed by law for the closing of the voting on account
of force majeure, violence, terrorism, fraud, or other analogous causes; or (c) after the voting
and during the preparation and transmission of the election returns or in the custody or canvass

thereof, such election results in a failure to elect on account of force majeure, violence,
terrorism, fraud, or other analogous causes." 41
Thus, the trial court in its decision actually pronounced a failure of election by disregarding and
setting aside the results of the election. Nonetheless, as herein-above stated, the trial court erred
to the extent of ousting itself of jurisdiction because the grounds for failure of election were not
significant and even non-existent. More importantly, the commission of fraud can not be
attributed to the protestee. There was no evidence on record that protestee had a hand in any of
the irregularities that protestant averred. It is wrong for the trial court to state that the protestee
had control over the "election paraphernalia" or over electric services. The Commission on
Elections has control over election paraphernalia, through its officials and deputies. 42 The
Comelec can deputize with the concurrence of the President, law enforcement agencies and
instrumentalities of the government, including the Armed Forces of the Philippines, for the
exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. 43 On the
other hand, electric utility services in Metro Manila, including Valenzuela are under the control of
its franchise holder, particularly the Manila Electric Company, a public service company, certainly
not owned or controlled by the protestee. In fact, during election period, Comelec has control
over such utilities as electric and even telephone service. 44 What is important, however, is that
the voters of Valenzuela were able to cast their votes freely and fairly. And in the election protest
case, the trial court was able to recount and determine the valid votes cast. DaEcTC

own intuition, ipse dixit. 51 How was this voice communicated to the trial court? Certainly not by
competent evidence adduced before the court as it should be, but by extra-sensory perception.
This is invalid in law. Contrary to its own finding that petitioner obtained 83,600 valid votes
against 66,602 valid votes for the respondent as second placer, or a plurality of 17,007 votes, the
trial court declared the second placer as the winner. This is a blatant abuse of judicial discretion
by any account. It is a raw exercise of judicial function in an arbitrary or despotic manner,
amounting to evasion of the positive duty to act in accord with law. 52

In a special civil action for certiorari, the burden is on petitioner to prove not merely reversible
error, but grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the
public respondent Judge. "By grave abuse of discretion is meant capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not
enough. It must be grave abuse of discretion as when the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and must be so patent and so gross
as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined
or to act at all in contemplation of law." 53 We must emphasize that election to office is
determined by the highest number of votes obtained by a candidate in the election. DIETHS

The Judgment
Assuming that the trial court has jurisdiction to declare a failure of election, the extent of that
power is limited to the annulment of the election and the calling of special elections. 45 The
result is a failure of election for that particular office. In such case, the court can not declare a
winner. 46 A permanent vacancy is thus created. In such eventuality, the duly elected vicemayor shall succeed as provided by law. 47
We find that the trial court committed a grave abuse of discretion amounting to lack or excess of
jurisdiction in rendering its decision proclaiming respondent Serapio the duly elected mayor of
Valenzuela, Metro Manila, on the basis of its perception of the voice of the people of Valenzuela,
even without a majority or plurality votes cast in his favor. In fact, without a single vote in his
favor as the trial court discarded all the votes. Thus, the decision is not supported by the highest
number of valid votes cast in his favor. This violated the right to due process of law of petitioner
who was not heard on the issue of failure of election, an issue that was not raised by the
protestant. "A decision is void for lack of due process if, as a result, a party is deprived of the
opportunity of being heard." 48 The trial court can not decide the election protest case outside
the issues raised. If it does, as in this case, the trial court is ousted of its jurisdiction. Likewise, it
is a basic principle that a decision with absolutely nothing to support it is void. 49 "A void
decision may be assailed or impugned at any time either directly or collaterally, by means of a
petition filed in the same case or by means of a separate action, or by resisting such decision in
any action or proceeding where it is invoked." 50 Here, the trial court indulged in speculations on
its view of the voice of the people, and decided the case disregarding the evidence, but on its

WHEREFORE, the Court GRANTS the petition. The Court ANNULS and DECLARES VOID the
decision dated April 24, 2000 of the trial court in Election Protest Case No. V-14-98.
The temporary restraining order we issued on May 8, 2000, is made permanent.
Let Election Protest Case No. V-14-98 be remanded to the trial court for decision within a nonextendible period of fifteen (15) days from notice of this decision. The judge shall report to this
Court on the decision rendered within five (5) days from rendition submitting a copy thereof to
the Office of the Clerk of Court en banc.
This decision is immediately executory.
No costs.
SO ORDERED.

EN BANC
[G.R. No. 87193. June 23, 1989.]
JUAN GALLANOSA FRIVALDO, petitioner, vs. COMMISSION ON
ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON
CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT, SALVADOR
NEE ESTUYE, respondents.

J .L. Misa & Associates for petitioner.

Lladoc, Huab & Associates for private respondent.

DECISION

CRUZ, J p:
Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January
22, 1988, and assumed office in due time. On October 27, 1988, the league of Municipalities,
Sorsogon Chapter (hereafter, League), represented by its President, Salvador Estuye, who was
also suing in his personal capacity, filed with the Commission on Elections a petition for the
annulment of Frivaldo's election and proclamation on the ground that he was not a Filipino
citizen, having been naturalized in the United States on January 20,1983. In his answer dated
May 22, 1988, Frivaldo admitted that he was naturalized in the United States as alleged but
pleaded the special and affirmative defenses that he had sought American citizenship only to
protect himself against President Marcos. His naturalization, he said, was "merely forced upon
himself as a means of survival against the unrelenting persecution by the Martial Law Dictator's
agents abroad." He added that he had returned to the Philippines after the EDSA revolution to
help in the restoration of democracy. He also argued that the challenge to his title should be
dismissed, being in reality a quo warranto petition that should have been filed within ten days
from his proclamation, in accordance with Section 253 of the Omhibus Election Code. The
League, moreover, was not a proper party because it was not a voter and so could not sue under
the said section. prLL
Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent
Commission on Elections decided instead by its Order of January 20, 1988, to set the case for
hearing on the merits. His motion for reconsideration was denied in another Order dated
February 21, 1988. He then came to this Court in a petition for certiorari and prohibition to ask

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

with this Court, albeit only after a long delay. We cannot permit this delay. Such delay will be
inimical to the public interest and the vital principles of public office to be here applied.
It is true that the Commission on Elections has the primary jurisdiction over this question as the
sole judge of all contests relating to the election, returns and qualifications of the members of the
Congress and elective provincial and city officials. However, the decision on Frivaldo's citizenship
has already been made by the COMELEC through its counsel, the Solicitor General, who
categorically claims that Frivaldo is a foreigner. We assume this stance was taken by him after
consultation with the public respondent and with its approval. It therefore represents the decision
of the COMELEC itself that we may now review. Exercising our discretion to interpret the Rules of
Court and the Constitution, we shall consider the present petition as having been filed in
accordance with Article IX-A, Section 7, of the Constitution, to challenge the aforementioned
Orders of the COMELEC.
The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen of the
Philippines at the time of his election on January 18,1988, as provincial governor of Sorsogon. All
the other issues raised in this petition are merely secondary to this basic question.
The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all
public officials and employees owe the State and the Constitution "allegiance at all times" and the
specific requirement in Section 42 of the Local Government Code that a candidate for local
elective office must be inter alia a citizen of the Philippines and a qualified voter of the
constituency where he is running. Section 117 of the Omnibus Election Code provides that a
qualified voter must be, among other qualifications, a citizen of the Philippines, this being an
indispensable requirement for suffrage under Article V, Section 1, of the Constitution.
In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a
"natural-born" citizen of the Philippines, omitting mention of any subsequent loss of such status.
The evidence shows, however, that he was naturalized as a citizen of the United States in 1983
per the following certification from the United States District Court, Northern District of California,
as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San
Francisco, California, U.S.A.
OFFICE OF THE CLERK
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

Our records show that JUAN GALLANOSA FRIVALDO, born on October 20,
1915, was naturalized in this Court on January 20, 1983, and issued Certificate
of Naturalization No. 11690178.
Petition No. 280225.
Alien Registration No. A23 079 270.
Very truly yours,
WILLIAM L. WHITTAKER
Clerk
by:
(Sgd.)
ARACELI V. BARENG
Deputy Clerk
This evidence is not denied by the petitioner. In fact, he expressly admitted it in his answer.
Nevertheless, as earlier noted, he claims it was "forced" on him as a measure of protection from
the persecution of the Marcos government through his agents in the United States. cdll
The Court sees no reason not to believe that the petitioner was one of the enemies of the Marcos
dictatorship. Even so, it cannot agree that as a consequence thereof he was coerced into
embracing American citizenship. His feeble suggestion that his naturalization was not the result
of his own free and voluntary choice is totally unacceptable and must be rejected outright.
There were many other Filipinos in the United States similarly situated as Frivaldo, and some of
them subject to greater risk than he, who did not find it necessary nor do they claim to have
been coerced to abandon their cherished status as Filipinos. They did not take the oath of
allegiance to the United States, unlike the petitioner who solemnly declared "on oath, that I
absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince,
potentate, state or sovereignty of whom or which I have heretofore been a subject or citizen,"
meaning in his case the Republic of the Philippines. The martyred Ninoy Aquino heads the
impressive list of those Filipinos in exile who, unlike the petitioner, held fast to their Philippine
citizenship despite the perils of their resistance to the Marcos regime.

September 23, 1988

TO WHOM IT MAY CONCERN:

The Nottebohm case cited by the petitioner invoked the international law principle of effective
nationality which is clearly not applicable to the case at bar. This principle is expressed in Article
5 of the Hague Convention of 1930 on the Conflict of Nationality Laws as follows: prcd

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

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

repentant children. The returning renegade must show, by an express and unequivocal act, the
renewal of his loyalty and love.

EN BANC
[G.R. No. 123169. November 4, 1996]

WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is hereby declared not
a citizen of the Philippines and therefore DISQUALIFIED from serving as Governor of the Province
of Sorsogon. Accordingly, he is ordered to vacate his office and surrender the same to the duly
elected Vice-Governor of the said province once this decision becomes final and executory. The
temporary restraining order dated March 9, 1989, is LIFTED.
SO ORDERED.

DANILO E. PARAS, petitioner, vs. COMMISSION ON ELECTIONS, respondent.

RESOLUTION
FRANCISCO, J.:
Petitioner Danilo E. Paras is the incumbent Punong Barangay of Pula, Cabanatuan City who won
during the last regular barangay election in 1994. A petition for his recall as Punong Barangay
was filed by the registered voters of the barangay. Acting on the petition for recall, public
respondent Commission on Elections (COMELEC) resolved to approve the petition, scheduled the
petition signing on October 14, 1995, and set the recall election on November 13, 1995.i[1] At
least 29.30% of the registered voters signed the petition, well above the 25% requirement
provided by law. The COMELEC, however, deferred the recall election in view of petitioners
opposition. On December 6, 1995, the COMELEC set anew the recall election, this time on
December 16, 1995. To prevent the holding of the recall election, petitioner filed before the
Regional Trial Court of Cabanatuan City a petition for injunction, docketed as SP Civil Action No.
2254-AF, with the trial court issuing a temporary restraining order. After conducting a summary
hearing, the trial court lifted the restraining order, dismissed the petition and required petitioner
and his counsel to explain why they should not be cited for contempt for misrepresenting that
the barangay recall election was without COMELEC approval.ii[2]
In a resolution dated January 5, 1996, the COMELEC, for the third time, re-scheduled the recall
election on January 13, 1996; hence, the instant petition for certiorari with urgent prayer for
injunction. On January 12, 1996, the Court issued a temporary restraining order and required the
Office of the Solicitor General, in behalf of public respondent, to comment on the petition. In
view of the Office of the Solicitor Generals manifestation maintaining an opinion adverse to that
of the COMELEC, the latter through its law department filed the required comment. Petitioner
thereafter filed a reply.iii[3]
Petitioners argument is simple and to the point. Citing Section 74 (b) of Republic Act No. 7160,
otherwise known as the Local Government Code, which states that no recall shall take place

within one (1) year from the date of the officials assumption to office or one (1) year immediately
preceding a regular local election, petitioner insists that the scheduled January 13, 1996 recall
election is now barred as the Sangguniang Kabataan (SK) election was set by Republic Act No.
7808 on the first Monday of May 1996, and every three years thereafter. In support thereof,
petitioner cites Associated Labor Union v. Letrondo-Montejo, 237 SCRA 621, where the Court
considered the SK election as a regular local election. Petitioner maintains that as the SK election
is a regular local election, hence no recall election can be had for barely four months separate
the SK election from the recall election. We do not agree.

The subject provision of the Local Government Code provides:

SEC. 74. Limitations on Recall. (a) Any elective local official may be the subject of a recall
election only once during his term of office for loss of confidence.
(b) No recall shall take place within one (1) year from the date of the officials assumption to
office or one (1) year immediately preceding a regular local election.
[Emphasis added.]
It is a rule in statutory construction that every part of the statute must be interpreted with
reference to the context, i.e., that every part of the statute must be considered together with the
other parts, and kept subservient to the general intent of the whole enactment.iv[4] The evident
intent of Section 74 is to subject an elective local official to recall election once during his term of
office. Paragraph (b) construed together with paragraph (a) merely designates the period when
such elective local official may be subject of a recall election, that is, during the second year of
his term of office. Thus, subscribing to petitioners interpretation of the phrase regular local
election to include the SK election will unduly circumscribe the novel provision of the Local
Government Code on recall, a mode of removal of public officers by initiation of the people
before the end of his term. And if the SK election which is set by R.A. No. 7808 to be held every
three years from May 1996 were to be deemed within the purview of the phrase regular local
election, as erroneously insisted by petitioner, then no recall election can be conducted rendering
inutile the recall provision of the Local Government Code.
In the interpretation of a statute, the Court should start with the assumption that the legislature
intended to enact an effective law, and the legislature is not presumed to have done a vain thing
in the enactment of a statute.v[5] An interpretation should, if possible, be avoided under which a
statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed,
emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative or
nugatory.vi[6]
It is likewise a basic precept in statutory construction that a statute should be interpreted in
harmony with the Constitution.vii[7] Thus, the interpretation of Section 74 of the Local
Government Code, specifically paragraph (b) thereof, should not be in conflict with the
Constitutional mandate of Section 3 of Article X of the Constitution to enact a local government
code which shall provide for a more responsive and accountable local government structure
instituted through a system of decentralization with effective mechanisms of recall, initiative, and
referendum x x x.
Moreover, petitioners too literal interpretation of the law leads to absurdity which we cannot
countenance. Thus, in a case, the Court made the following admonition:

We admonish against a too-literal reading of the law as this is apt to constrict rather than fulfill
its purpose and defeat the intention of its authors. That intention is usually found not in the letter
that killeth but in the spirit that vivifieth x x xviii[8]
The spirit, rather than the letter of a law determines its construction; hence, a statute, as in this
case, must be read according to its spirit and intent.
Finally, recall election is potentially disruptive of the normal working of the local government unit
necessitating additional expenses, hence the prohibition against the conduct of recall election one
year immediately preceding the regular local election. The proscription is due to the proximity of
the next regular election for the office of the local elective official concerned. The electorate
could choose the officials replacement in the said election who certainly has a longer tenure in
office than a successor elected through a recall election. It would, therefore, be more in keeping
with the intent of the recall provision of the Code to construe regular local election as one
referring to an election where the office held by the local elective official sought to be recalled
will be contested and be filled by the electorate.
Nevertheless, recall at this time is no longer possible because of the limitation stated under
Section 74 (b) of the Code considering that the next regular election involving the barangay
office concerned is barely seven (7) months away, the same having been scheduled on May
1997.ix[9]
ACCORDINGLY, the petition is hereby dismissed for having become moot and academic. The
temporary restraining order issued by the Court on January 12, 1996, enjoining the recall election
should be as it is hereby made permanent.
SO ORDERED

EN BANC
[G.R. No. 113107. July 20, 1994.]
WILMAR P. LUCERO, petitioner, vs. COMMISSIONER OF ELECTIONS
and JOSE L. ONG, JR., respondents.
[G.R. No. 113509. July 20, 1994.]
JOSE L. ONG, petitioner, vs. COMMISSIONER OF ELECTIONS and
WILMAR P. LUCERO, respondents.
SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; ORDER OF INCLUSION OF VOTES
CONTAINED IN QUESTIONED ELECTION RETURNS BY THE COMELEC CONSTITUTES GRAVE
ABUSE OF DISCRETION. It is clear to us that the COMELEC, which has in its possession the
so-called "Comelec Copy" of the questioned election returns of Precinct No. 7 and heard the
witnesses who testified thereon, doubts the authenticity of the so-called "Comelec Copy" of the
election returns of Precinct No. 7; hence, it authorizes the PBC to decide the issue of a recount
"pursuant to Section 236 of the Omnibus Election Code." Since it doubts such authenticity, it
could not, without arbitrariness and abuse of discretion, order the inclusion of the "votes" of Ong
and Lucero found in the doubtful "Comelec Copy" of the election returns in the municipal
certificate of canvass.
2. POLITICAL LAW; ELECTIONS; OMNIBUS ELECTION CODE; SPECIAL ELECTION, WHEN
ALLOWED; CASE AT BAR. It is an uncontroverted fact that an election was held in Precinct No.
7. None was held in Precinct No. 13 for reasons the parties fully knew. Pursuant to Section 6 of
the Omnibus Election Code (B.P. Blg. 881), a special election may be held in Precinct No. 13 only
if the failure of the election therein "would affect the result of the election." This "result of the
election" means that the net result of the election in the rest of the precincts in a given
constituency, such that if the margin of a leading candidate over that of his closest rival in the
latter precincts is less than the total number of votes in the precinct where there was failure of
election, then such failure would certainly affect "the result of the election"; hence, a special
election must be held. Consequently, the holding of a special election in Precinct No. 13 can only
be determined after the votes in Precinct No. 7 shall have been included in the canvass by the
Provincial Board of Canvassers. Only a count then of the votes of Precinct No. 13 would
heretofore be in order. Sections 234, 235, and 236 of the Omnibus Election Code are thus still
inapplicable. And, in the light of what we stated before in relation to the holding of a special

election, such a count of the votes of Precinct No. 7 must, perforce, precede the special election
in Precinct No. 13.
3. ID.; ID.; RECOUNT; PRESUPPOSES A PRIOR COUNT; ABSENCE OF COUNTING IN CASE AT
BAR. We may further state that the so-called "Comelec Copy" of the election returns of
Precinct No. 7 can by no means be validly included in the municipal canvass. The summary of the
evidence in the "preparation" of the election returns of Precinct No. 7, both in the challenged
Resolution and in the separate Concurring and Dissenting Opinion of Commissioners Gorospe and
Claravall, leaves no room for doubt that there was actually no counting of the votes in Precinct
No. 7. Quoted in the challenged Resolution is a portion of the testimony of Sabina T. Jarito,
Precinct Chairman of Precinct No. 7, which clearly shows that on questions by COMELEC
Chairman Christian S. Monsod and Commissioner Vicente B. de Lima, the witness candidly
admitted that the election returns were prepared at the "munisipyo" or municipal building and
not at the polling place of Precinct No. 7 in barangay Camaya-an. This "munisipyo" is located at
the poblacion of Silvino Lobos. Under the law, the board of election inspectors shall prepare the
election returns simultaneously with the counting of votes in the polling place. There is no
evidence whatsoever that the COMELEC had, for valid reasons, authorized the transfer of venue
of the counting of the votes of Precinct No. 7 from the polling place in barangay Camaya-an to
the municipal building and that the counting did in fact take place at the latter. Although in the
Concurring and Dissenting Opinion of Commissioners Gorospe and Claravall there is a reference
to Exhibit "E," the Joint Affidavit of Sabina Jarito and Mevilyn Surio wherein they declare that
after the voting the Board of Election Inspectors unanimously approved to transfer the counting
of votes to the Municipal Building in the Poblacion of Silvino Lobos, which was allegedly
concurred in by all the watchers of political parties and the candidates present, the alleged
"counting" at the municipal building was denied by no less than the Municipal Election Officer of
Silvino Lobos, Antonio Tepace, and the Municipal Treasurer thereof, Mr. Gabriel Basarte, in their
affidavits marked as Exhibit "F" and Exhibit "G," respectively. Since there was no counting of the
votes of Precinct No. 7, no valid election returns could be made and any copy of election returns
purporting to come therefrom is a fabrication. A recount thereof, which presupposes a prior
count, would obviously be unwarranted.
4. REMEDIAL LAW; ACTIONS; APPEAL; FINAL AND EXECUTORY JUDGMENT CAN NO LONGER BE
RE-LITIGATED; CASE AT BAR. The order of the COMELEC for the correction of the manifest
error in the municipal certificate of canvass of Las Navas was made pursuant to the declaration
made by this Court in G.R. No. 105717 (Ong vs. COMELEC) that:"The correction of the certificate
of canvass of Las Navas is likewise in order. Even though a pre-proclamation issue is involved,
the correction of the manifest error is allowed under Sec. 15 of R.A. No. 7166."Since no motion
for reconsideration was filed in that case, the decision therein became final and entry of
judgment was made on 4 August 1993. Consequently, Ong cannot now re-litigate the issue of
the correction of the certificate of canvass of Las Navas.

5. POLITICAL LAW; OMNIBUS ELECTION CODE; SPECIAL ELECTION UNDER SECTION 6

THEREOF; REQUISITES. There are, therefore, two requisites for the holding of special
elections under Section 6 of the Omnibus Election Code, viz., (1) that there is a failure of
election, and (2) that such failure would affect the results of the election.
6. ID.; ID.; ID.; ID.; CASE AT BAR. The parties admit that the failure of the election in Precinct
No. 13 was due to ballot-box snatching and do not dispute the finding of the COMELEC as to the
necessity and inevitability of the holding of a special election in said precinct, even if the result of
Precinct No. 7 should be based on the questionable "Comelec Copy" of its election returns. On
the basis of the additional votes credited so far to the parties, the following computation is in
order: to Ong's 24,272 votes will be added 2 more from Precinct No. 16, to make a total of
24,274, while to Lucero's 24,068 votes will be added 20 more from Las Navas and 43 from
Precinct No. 16, for a total of 24,131. Ong's earlier lead will thus be reduced to 143, which is
admittedly less than the 213 registered voters in Precinct No. 13. The two requirements for a
special election under Section 6 of the Omnibus Election Code have indeed been met.
7. ID.; ID.; ID.; DATE OF SPECIAL ELECTION. In fixing the date of the special election, the
COMELEC should see to it that: (1) it should be not later than thirty days after the cessation of
the cause of the postponement or suspension of the election or the failure to elect, and (2) it
should be reasonably close to the date of the election not held, suspended, or which resulted in
failure to elect.
8. ID.; ID.; ID.; CALLING OF SPECIAL ELECTION ALMOST TWO YEARS IN A THREE (3) YEAR
TERM OF OFFICE CONSIDERED "REASONABLY CLOSE TO DATE OF ELECTION NOT HELD"; CASE
AT BAR. The first involves questions of fact. The second must be determined in the light of the
peculiar circumstances of a case. In the instant case, the delay was not attributable to the poor
voters of Precinct No. 13 or to the rest of the electorate of the Second Legislative District of
Northern Samar. The delay was, as stated in the opening paragraph of this ponencia, primarily
caused by the legal skirmishes or maneuvers of the petitioners which muddled simple issues. The
Court takes judicial notice of the fact that G.R. No. 113509 is the third case Ong has brought to
this Court. Considering then that the petitioners themselves must share the blame for the delay,
and taking into account the fact that since the term of office of the contested position is only
three years, the holding of a special election is Precinct No. 13 within the next few months may
still be considered "reasonably close to the date of the election not held." Ong's postulation
should then be rejected.
9. ID.; ID.; ID.; SPECIAL ELECTIONS PURSUANT TO SECTION 10, ARTICLE VII OF THE 1987
CONSTITUTION AND THAT OF SECOND PARAGRAPH OF SECTION 4 OF REPUBLIC ACT NO. 7166
NOT APPLICABLE THERETO; REASONS. In the course of the deliberations on these cases, the
Court considered the possible application, by analogy, of Section 10, Article VII of the 1987
Constitution providing that no special election in the event of a vacancy in the Offices of the
President and Vice President "shall be called if the vacancy occurs within eighteen months before

the date of the next presidential election," and of the second paragraph of Section 4 of R.A. No.
7166 A view was expressed that we should not hold the special election because the underlying
philosophy for the prohibition to hold the special election if the vacancy occurred within a certain
period before the next presidential election or the next regular election, as the case may be, is
obviously the avoidance of the expense to be incurred in the holding of a special election when a
regular election is, after all, less than a year away. The Court ultimately resolved that the
aforesaid constitutional and statutory proscriptions are inapplicable to special elections which
may be called under Section 6 of the Omnibus Election Code. First, the special election in the
former is to fill permanent vacancies in the Office of the President, Vice President, and Members
of Congress occurring after the election, while the special election under the latter is due to or by
reason of a failure of election. Second, a special election under Section 6 would entail minimal
costs because it is limited to only the precincts involved and to the candidates who, by the result
of the election in a particular constituency, would be affected by the failure of election. On the
hand, the special election for the Offices of the President, Vice President, and Senators would be
nation-wide, and that of a Representative, districtwide. Third, Section 6, when specifically applied
to the instant case, presupposes that no candidate had been proclaimed and theretofore the
people of the Second Legislative District of Northern Samar would be unrepresented in the House
of Representatives until the special election shall ultimately determine the winning candidate,
such that if none is held, they would have no representation until the end of the term. Under the
aforesaid constitutional and statutory provisions, the elected officials have already served their
constitutencies for more than one-half of their terms of office. Fourth, if the law had found it fit
to provide a specific and determinate time-frame for the holding of a special election under
Section 6, then it could have easily done so in Section 4 of R.A. No. 7166.

10. ID.; ID.; THERE CAN BE NO PROCLAMATION BASED ON AN INCOMPLETE CANVASS.

Another serious obstacle to Ong's proposition is that, considering the COMELEC's disposition of
Precinct No. 7 in the challenged Resolution, he would then be declared and proclaimed the duly
elected Representative of the Second legislative District of Northern Samar despite the fact that
as earlier observed, there was no counting of the votes of Precinct No. 7, and the results of the
district elections for Representative would be affected by the failure of the election in Precinct
No. 13. To accept the proposition is to allow a proclamation based on an incomplete canvass
where the final result would have been affected by the uncanvassed result of Precinct No. 7 and
by the failure of the election in Precinct No. 13 and to impose upon the people of the Second
Legislative District of Northern Samar a Representative whose mandate is, at the very least,
uncertain, and at the most, inexistent.

DECISION

DAVIDE, JR., J p:
After the issues had been joined in these consolidated cases, the Court resolved to give due
course to the petitions therein and to decide the cases on the merits. It can no longer allow the
parties to delay these cases. Their legal skirmishes, which have unduly magnified uncomplicated
issues, have effectively deprived the people of the Second Legislative District of Northern Samar
of representation in the House of Representatives for more than two years now.
These cases are sequels to G.R. No. 105717, entitled "Jose L. Ong, Jr. vs. Commission on
Elections and Wilmar P. Lucero," which we finally resolved on 22 April 1993. 1 The petitioners
were two of the five candidates 2 for the Second Legislative District of Northern Samar in the
synchronized national and local elections held on 11 May 1992. LLjur
The canvass of the Provincial Board of Canvassers (PBC) of Northern Samar credited Jose L. Ong,
Jr. with 24,272 votes and Wilmar P. Lucero with 24,068 votes, or a lead by Ong of 204 votes.
However, this tally did not include the results of Precinct No. 7 of the municipality of Silvino
Lobos, where the submitted election returns had not been canvassed because they were illegible;
of Precinct No. 13 of Silvino Lobos, where the ballot boxes were snatched and no election was
held; and of Precinct No. 16, also Silvino Lobos, where all copies of the election returns were
missing.
On 22 May 1992, Lucero asked the Commission on Elections (COMELEC), in SPA No. 92-282, to:
"1. Forthwith order Respondent Provincial Board of Canvassers for Northern
Samar to suspend the proclamation of Private Respondent Jose L. Ong, Jr.;
2. Direct Respondent Provincial Board of Canvassers for Northern Samar to
correct the Certificate of Canvass (CEF 20) for Las Navas and, accordingly, to
correct the total votes so far counted by it for Petitioner from 24,068 to
24,088, thus reducing the margin it found in favor of Private Respondent Jose
L. Ong, Jr. from 204 to 184 votes only;
3. Order a special election in Precinct 13, Barangay Gusaran, Silvino Lobos,
pursuant to Section 6 of the Omnibus Election Code; LLjur
4. Order a recount of the votes for Representative of the Second District of
Northern Samar in Precinct 16, Barangay Tubgon, and Precinct 7, Barangay
Camayaan, both of Silvino Lobos, pursuant to Section 234 of the Omnibus
Election Code;
5. Order a recount of the votes for Representative in the 52 precincts herein
above enumerated in order to correct `manifest errors' pursuant to Section 15

of Republic Act 7166 and for this purpose order the impounding and
safekeeping of the ballot boxes of all said precincts in order to preserve the
integrity of the ballots and other election paraphernalia contained therein." 3
On 2 June 1992, the COMELEC, acting on Lucero's urgent manifestation, directed the PBC to
desist from reconvening until further orders.
On 8 June 1992, Ong moved to lift the suspension of the proceedings by the PBC, which Lucero
opposed on 10 June 1992 on the ground that the canvass could not be completed even if the
PBC were to reconvene because no election was held in Precinct No. 13 (Barangay Gusaran) of
Silvino Lobos and there was no canvassing of the votes in Precinct No. 7 (Barangay Camayaan)
and Precinct No. 16 (Barangay Tubgon) both of Silvino Lobos.
On 13 June 1993, the COMELEC en banc promulgated a resolution, the dispositive portion of
which reads:
"Accordingly, the Commission hereby orders the Provincial Election Supervision
of Northern Samar to bring to the Commission within three (3) days from
receipt hereof the ballot boxes from Precinct 7 and 16 of Silvino Lobos, to be
escorted by representatives from the petitioner and the respondents as well as
other parties who have an interest to protect, and to notify said parties hereof.
The Municipal Treasurer of said town is directed to turn over custody of said
ballot boxes to the Provincial Election Supervisor, and the keys thereof shall
likewise be turned over by the appropriate officials in custody thereof to the
PES, who shall in turn give one key for each ballot box to the duly authorized
representatives of the petitioner and the respondent.
The Commission likewise orders the Election Registrar of Silvino Lobos,
Northern Samar, and the Chairman and members of the Boards of Election
Inspectors of Precincts 7 and 16 of said municipality to appear before the
Commission within three (3) days from receipt hereof."
Below the signatures of the Chairman and the six Commissioners, however, Chairman Christian
S. Monsod and Commissioners Haydee B. Yorac, Dario C. Rama, and Regalado E. Maambong
directed as follows: prcd
"We vote in favor of this resolution except that portion which denied the
correction of the Certificate of Canvass for Las Navas. Correction of the
Certificate of Canvass for Las Navas is in order in view of the testimony of the
election registrar of Las Navas to the effect that Wilmar Lucero garnered 2,537
votes for Las Navas and not 2,517. Petition for correction was duly filed by
Lucero with the Provincial Board of Canvassers of Northern Samar is therefor

directed to retabulate the total number of votes for Las Navas for Lucero and
enter the same in the Provincial Certificate of Canvass." 4
On 15 June 1992, Lucero filed an urgent motion to constitute a Special Board of Election
Inspectors (SBEI) to count the votes of Precincts Nos. 7 and 16 of Silvino Lobos. 5
On 20 June 1992, Ong, in a special civil action for certiorari filed with this Court and subsequently
docketed as G.R. No. 105717, questioned the order for the recount of ballots in Precincts No. 7
and 16. Despite the pendency of this petition, the COMELEC ordered the recount of the ballots in
Precinct No. 16 by a SBEI which recorded 43 votes for Lucero and 2 votes for Ong. 6
On 25 June 1992, this Court issued in G.R. No. 105717 a temporary restraining order against the
implementation by the COMELEC of its Order of 2 June 1992 and its Resolution of 13 June 1992.
On 23 December 1992, this Court promulgated its decision in G.R. NO. 105717, 7 the dispositive
portion of which reads:
"WHEREFORE, the petition for certiorari is GRANTED and a writ of preliminary
injunction is hereby ISSUED directing the COMELEC to CEASE and DESIST
from implementing its order of June 2, 1992, and its resolution dated June 13,
1992, and the same are hereby declared NULLIFIED. Consequently the election
returns based on the recounted ballots from Precinct 16 are hereby
DISCARDED and in lieu thereof, authentic returns from said precinct should
instead be made a basis for the canvassing. The Provincial Board of
Canvassers of Northern Samar is hereby directed to PROCEED WITH
DISPATCH in the canvassing of ballots until completed and to PROCLAIM the
duly elected winner of the congressional seat for the Second District of
Northern Samar.
This decision is immediately executory." 8
Acting on the motions for reconsideration and clarification respectively filed by the COMELEC and
Lucero, this Court, on 22 April 1993, modified 9 its aforesaid disposition in G.R. No. 105717 as
follows:
"IN VIEW OF ALL THE FOREGOING, the dispositive portion of the December
23, 1992 Decision is hereby MODIFIED to read as follows: cdphil
'WHEREFORE, THE PETITION IS GRANTED. THE JUNE 2, 1992 ORDER
OF RESPONDENT COMMISSION ON ELECTIONS IN SPA NO. 92-282 IS
HEREBY ANNULLED AND SET ASIDE. ITS JUNE 13, 1992 RESOLUTION
THEREIN IS LIKEWISE ANNULLED AND SET ASIDE INSOFAR AS IT

AFFECTS PRECINCT NO. 7 OF SILVINO LOBOS, THE RECOUNT OF

VOTES IN THE 52 OTHER PRECINCTS AND THE CORRECTION OF THE
CERTIFICATE OF CANVASS OF LAS NAVAS, BUT IS AFFIRMED WITH
RESPECT TO THE ISSUE OF HOLDING A SPECIAL ELECTION IN
PRECINCT NO. 13 AND THE RECOUNT OF THE BALLOTS IN PRECINCT
NO. 16.
THE RESPONDENT COMMISSION ON ELECTIONS IS HEREBY
DIRECTED TO ASSIGN SPA NO. 92-282 TO ANY OF ITS DIVISIONS
PURSUANT TO ITS RULE ON RAFFLE OF CASES FOR IT TO RESOLVE
THE PRE-PROCLAMATION ISSUES THEREIN, TAKING INTO ACCOUNT
THE ABOVE PRONOUNCEMENTS AND THE EXCEPTIONS PROVIDED
FOR IN SECTION 15 OF R.A. NO. 7166.
WHENEVER
WARRANTED
BY
THE
CIRCUMSTANCES,
THE
COMMISSION MAY (A) CALL A SPECIAL ELECTION IN PRECINCT NO.
13 OF SILVINO LOBOS, NORTHERN SAMAR, AND (B) RECONVENE THE
SPECIAL MUNICIPAL BOARD OF CANVASSERS AND THE SPECIAL
PROVINCIAL BOARD OF CANVASSERS IT HAD EARLIER CONSTITUTED
OR CREATE NEW ONES.
ALL THE FOREGOING SHOULD BE DONE WITH PURPOSEFUL
DISPATCH TO THE END THAT THE WINNING CANDIDATE FOR
CONGRESSMAN REPRESENTING THE SECOND CONGRESSIONAL
DISTRICT OF NORTHERN SAMAR MAY BE PROCLAIMED AS SOON AS
POSSIBLE.'" 10
As to the certificate of canvass of the municipality of Las Navas, this Court explicitly stated:
"The correction of the certificate of canvass of Las Navas is likewise in order.
Even though a pre-proclamation issue is involved, the correction of the
manifest error is allowed under Section 15 of R.A. No. 7166." 11

Conformably with the aforesaid modified judgment in G.R. No. 105717, SPA No. 92-282 was
raffled to the First Division of the COMELEC which conducted hearings thereon and received the
arguments and evidence of both parties who then submitted their respective memoranda on 25
June 1994. However, during the consultations on the case by the Members of the First Division,
the concurrence of at least two of them could not be obtained; accordingly, pursuant to the
COMELEC Rules, the case was elevated for proper disposition to the COMELEC en banc to which
the parties submitted their respective memoranda on 19 November 1993. 12

On 7 January 1994, the COMELEC en banc promulgated a resolution 13 whose dispositive portion
reads as follows: LLpr
"1. To direct the special Provincial Board of Canvassers for Northern Samar (a)
to include in the municipal certificate of canvass of Silvino Lobos the fortythree (43) votes of petitioner Lucero and the two (2) votes of private
respondent Ong as reflected in the election returns of Precinct No. 16
(Barangay Tubgon) prepared by the special Board of Election Inspectors
constituted by the Commission to recount the votes (ballots) in said precinct,
as canvassed by the special Municipal Board of Canvassers for Silvino Lobos;
(b) to include in the municipal certificate of canvass of Silvino Lobos, the sixtyone (61) votes of private respondent Ong and 29, 30, or 31 votes of petitioner
Lucero as reflected in the election returns (MBC Copy submitted as 'Comelec
Copy') of Precinct No. 7 (Barangay Camaya-an), as canvassed by the special
Municipal Board of Canvassers for Silvino Lobos; (c) to retabulate the total
number of votes of petitioner Lucero for the Municipality of Las Navas and to
enter in the provincial certificate of canvass the correct total which is two
thousand five hundred thirty-seven (2,537) as reflected in the Statement of
Votes (C.E. Form 20-A) prepared and submitted by the Municipal Board of
Canvassers for Las Navas; and (d) to submit to the Commission a computation
of the votes of the contending parties including therein all the votes of
petitioner Lucero (with alternative totals) and private respondent Ong, in
Precinct Nos. 7 and 16 of Silvino Lobos and the total votes of petitioner Lucero
in the Municipality of Las Navas as corrected. However, under no
circumstances should the Board proclaim any winning candidate until
instructed to do so by the Commission;
2. To issue an Order calling for a special election in the last remaining Precinct
No. 13 (Barangay Gusaran) of the Municipality of Silvino Lobos if justified by
the result of the canvass by the Provincial Board of Canvassers for Northern
Samar, and to notify the parties of the schedule of election activities for that
precinct; and

Both Lucero and Ong have come to this Court by way of separate special civil actions for
certiorari to challenge the Resolution. LexLib
In G.R. No. 113107, Lucero maintains that (1) the count of the ballots in Precinct No. 7 of Silvino
Lobos must be unconditional because the election returns therefrom are invalid; and (2) his
chances in the special election in Precinct No. 13 of Silvino Lobos would be spoiled if the returns
for Precinct No. 7 were to be included beforehand in the canvass.
In G.R. No. 113509, Ong questions (1) the authority of the COMELEC to order the correction of
the alleged manifest error in the Municipal Certificate of Canvass of Las Navas despite the
absence of any appeal; and (2) the authority of the COMELEC to call for a special election in
Precinct No. 13 almost two years after the regular election.
As we see it, the core issues in these consolidated cases are:
(1) Whether there should first be a count of the ballots of Precinct No. 7 of
Silvino Lobos before determining the necessity of holding a special election in
Precinct No. 13 of Silvino Lobos;
(2) Whether the COMELEC acted with grave abuse of discretion in ordering the
correction of the alleged manifest error in the Municipal Certificate of Canvass
of Las Navas; and
(3) Whether the COMELEC acted with grave abuse of discretion in calling for a
special election in Precinct No. 13 after almost two (2) years, or more
specifically after one (1) year and ten (10) months, following the day of the
synchronized elections.
We shall take up these issues seriatim.
I.
The answer to the first issue is in the affirmative.

3. After including in the tabulation the results of the special election of Precinct
No. 13, to decide the issue of the recount of the votes (ballots) of Precinct No.
7 of Silvino Lobos, pursuant to Section 236 of the Omnibus Election Code, to
resolve the discrepancy of the votes of petitioner Lucero in the same return, if
such discrepancy of votes of the candidates concerned would affect the overall results of the election after the totality of the votes contending parties shall
have been determined."

We find the COMELEC's disposition regarding Precinct No. 7 to be unclear. In the first paragraph
of the dispositive portion of the challenged resolution, it directs the Provincial Board of
Canvassers "to include in the municipal certificate of canvass of Silvino Lobos the sixty-one (61)
votes of private respondent Ong and 29, 30, or 31 votes of petitioner Lucero as reflected in the
election returns (MBC copy submitted as "COMELEC Copy") of Precinct No. 7 (Barangay Camayaan), as canvassed by the special Municipal Board of Canvassers of Silvino Lobos," and "to submit
to the Commission a computation for the votes of the contending parties including therein all the
votes of petitioner Lucero (with alternative totals) and private respondent Ong, in Precinct Nos. 7

and 16 of Silvino Lobos. . . ." On the other hand, in the fourth paragraph of the said dispositive
portion, it orders the Provincial Board of Canvassers, after "including in the tabulation the results
of the special election of Precinct No. 13," to "decide the issue of the recount of the votes
(ballots) of Precinct No. 7 of Silvino Lobos, pursuant to Section 236 of the Omnibus Election Code
[and] to resolve the discrepancy of the votes of petitioner Lucero in the same return, if such
discrepancy of votes of the candidate concerned would affect the over-all results of the election
after the totality of the votes of the contending parties shall have been determined."
Obviously, instead of ordering an outright recount of the ballots of Precinct No. 7, the COMELEC
would first give full faith and credit to the questioned election returns thereof, which it describes
as the "Comelec Copy," and, accordingly, direct the PBC to include in the municipal certificate of
canvass of Silvino Lobos the 61 votes for Ong and the uncertain votes for Lucero 29, 30, or
31. The recount would only be made if after a special election in Precinct No. 13 shall have been
held, it shall be determined that such a recount would be necessary. prcd
We fail to grasp the logic of the proposition. First, it is clear to us that the COMELEC, which has
in its possession the so-called "Comelec Copy" of the questioned election returns of Precinct No.
7 and heard the witnesses who testified thereon, doubts the authenticity of the so-called
"Comelec Copy" of the election returns of Precinct No. 7; 14 hence, it authorizes the PBC to
decide the issue of a recount "pursuant to Section 236 of the Omnibus Election Code." Since it
doubts such authenticity, it could not, without arbitrariness and abuse of discretion, order the
inclusion of the "votes" of Ong and Lucero found in the doubtful "Comelec Copy" of the election
returns in the municipal certificate of canvass. Second, it is an uncontroverted fact that an
election was held in Precinct No. 7. None was held in Precinct No. 13 for reasons the parties fully
knew. Pursuant to Section 6 of the Omnibus Election Code (B.P. Blg. 881), a special election may
be held in Precinct No. 13 only if the failure of the election therein "would affect the result of the
election." This "result of the election" means that the net result of the election in the rest of the
precincts in a given constituency, such that if the margin of a leading candidate over that of his
closest rival in the latter precincts is less than the total number of votes in the precinct where
there was failure of election, then such failure would certainly affect "the result of the election";
hence, a special election must be held. Consequently, the holding of a special election in Precinct
No. 13 can only be determined after the votes in Precinct No. 7 shall have been included in the
canvass by the Provincial Board of Canvassers.
We may further state that the so-called "Comelec Copy" of the election returns of Precinct No. 7
can by no means be validly included in the municipal canvass. The summary of the evidence in
the "preparation" of the election returns of Precinct No. 7, both in the challenged Resolution and
in the separate Concurring and Dissenting Opinion of Commissioners Gorospe and Claravall,
leaves no room for doubt that there was actually no counting of the votes in Precinct No. 7.
Quoted in the challenged Resolution is a portion of the testimony of Sabina T. Jarito, Precinct
Chairman of Precinct No. 7, which clearly shows that on questions by COMELEC Chairman
Christian S. Monsod and Commissioner Vicente B. de Lima, the witness candidly admitted that

the election returns were prepared at the "munisipyo" or municipal building and not at the polling
place of Precinct No. 7 in barangay Camaya-an. 15 This "munisipyo" is located at the poblacion of
Silvino Lobos. Under the law, the board of election inspectors shall prepare the election returns
simultaneously with the counting of votes in the polling place. 16 There is no evidence
whatsoever that the COMELEC had, for valid reasons, authorized the transfer of venue of the
counting of the votes of Precinct No. 7 from the polling place in barangay Camaya-an to the
municipal building and that the counting did in fact take place at the latter. Although in the
Concurring and Dissenting Opinion of Commissioners Gorospe and Claravall there is a reference
to Exhibit "E," the Joint Affidavit of Sabina Jarito and Mevilyn Surio wherein they declare that
after the voting the Board of Election Inspectors unanimously approved to transfer the counting
of votes to the Municipal Building in the Poblacion of Silvino Lobos, which was allegedly
concurred in by all the watchers of political parties and the candidates present, the alleged
"counting" at the municipal building was denied by no less than the Municipal Election Officer of
Silvino Lobos, Antonio Tepace, and the Municipal Treasurer thereof, Mr. Gabriel Basarte, in their
affidavits marked as Exhibit "F" and Exhibit "G," respectively. 17

Since there was no counting of the votes of Precinct No. 7, no valid election returns could be
made and any copy of election returns purporting to come therefrom is a fabrication. A recount
thereof, which presupposes a prior count, would obviously be unwarranted. LexLib
Only a count then of the votes of Precinct No. 13 would heretofore be in order. Sections 234,
235, and 236 of the Omnibus Election Code are thus still inapplicable. And, in the light of what
we stated before in relation to the holding of a special election, such a count of the votes of
Precinct No. 7 must, perforce, precede the special election in Precinct No. 13.
II.
Ong's first grievance in G.R. No. 113509 is without merit.
The order of the COMELEC for the correction of the manifest error in the municipal certificate of
canvass of Las Navas was made pursuant to the declaration made by this Court in G.R. No.
105717 (Ong vs. COMELEC) 1 8 that:
"The correction of the certificate of canvass of Las Navas is likewise in order.
Even though a pre-proclamation issue is involved, the correction of the
manifest error is allowed under Sec. 15 of R.A. No. 7166."
Since no motion for reconsideration was filed in that case, the decision therein became final and
entry of judgment was made on 4 August 1993. Consequently, Ong cannot now re-litigate the
issue of the correction of the certificate of canvass of Las Navas.

III.
On the authority of the COMELEC to order the holding of a special election, Section 6 of the
Omnibus Election Code provides:
"SECTION 6. Failure of election. If, on account of force majeure, violence,
terrorism, fraud, or other analogous causes the election in any polling place
has not been held on the date fixed, or had been suspended before the hour
fixed by law for the closing of the voting, or after the voting and during the
preparation and the transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect, and if in any of such
cases the failure or suspension of election would affect the result of the
election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or
continuation of the election not held, suspended or which resulted in a failure
to elect on a date reasonably close to the date of the election not held,
suspended or which resulted in a failure to elect but not later than thirty days
after the cessation of the cause of such postponement or suspension of the
election or failure to elect."

votes of the contending parties, the original lead of private respondent Ong of
two hundred four (204) votes against petitioner Lucero 24,272 as against
24,068 will be reduced to either 175 or 173 depending on whether Lucero
will be credited a low of 29 or a high of 31 votes as reflected in the election
returns of Precinct No. 7.
Without preempting the exact figures which only the special Provincial Board of
Canvassers can correctly determine, undoubtedly it is inevitable that a special
election will have to be held in Precinct No. 13 (Barangay Gusaran) of the
Municipality of Silvino Lobos.
xxx xxx xxx
Given the established lead of private respondent Ong over petitioner Lucero,
We answer in the affirmative. According to Comelec records, the number of
registered voters in Precinct No. 13 is two hundred thirteen (213). Since the
lead of respondent Ong is less than the number of registered voters, the votes
in that precinct could affect the existing result because of the possibility that
petitioner Lucero might get a majority over Ong in that precinct and that
majority might be more than the present lead of Ong." 19

The first paragraph of Section 4 of R.A. No. 7166 likewise provides:

"SECTION 4. Postponement, Failure of Election and Special Elections. The
postponement, declaration of failure of election and the calling of special
elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall
be decided by the Commission sitting en banc by a majority votes of its
members. The causes for the declaration of a failure of election may occur
before or after the casting of votes or on the day of the election."
There are, therefore, two requisites for the holding of special elections under Section 6 of the
Omnibus Election Code, viz., (1) that there is a failure of election, and (2) that such failure would
affect the results of the election. The parties admit that the failure of the election in Precinct No.
13 was due to ballot-box snatching and do not dispute the finding of the COMELEC as to the
necessity and inevitability of the holding of a special election in said precinct, even if the result of
Precinct No. 7 should be based on the questionable "Comelec Copy" of its election returns. The
COMELEC held: cdll
"Based on the adjudged correction of the votes in favor of petitioner Lucero in
the Municipality of Las Navas, the results of the recount of votes (ballots) of
Precinct No. 16 (Silvino Lobos), and the votes reflected in the available copy of
the election returns for Precinct No. 7 (Silvino Lobos), it is safe to predict that
when the special Provincial Board of Canvassers will reconvene to sum up the

On the basis of the additional votes credited so far to the parties, 20 the following computation is
in order: to Ong's 24,272 votes will be added 2 more from Precinct No. 16, to make a total of
24,274, while to Lucero's 24,068 votes will be added 20 more from Las Navas and 43 from
Precinct No. 16, for a total of 24,131. Ong's earlier lead will thus be reduced to 143, which is
admittedly less than the 213 registered voters in Precinct No. 13. 21
The two requirements for a special election under Section 6 of the Omnibus Election Code have
indeed been met.
In fixing the date of the special election, the COMELEC should see to it that: (1) it should be not
later than thirty days after the cessation of the cause of the postponement or suspension of the
election or the failure to elect, and (2) it should be reasonably close to the date of the election
not held, suspended, or which resulted in failure to elect. The first involves questions of fact. The
second must be determined in the light of the peculiar circumstances of a case. In the instant
case, the delay was not attributable to the poor voters of Precinct No. 13 or to the rest of the
electorate of the Second Legislative District of Northern Samar. The delay was, as stated in the
opening paragraph of this ponencia, primarily caused by the legal skirmishes or maneuvers of the
petitioners which muddled simple issues. The Court takes judicial notice of the fact that G.R. No.
113509 is the third case Ong has brought to this Court. 22 Considering then that the petitioners
themselves must share the blame for the delay, and taking into account the fact that since the
term of office of the contested position is only three years, the holding of a special election is

Precinct No. 13 within the next few months may still be considered "reasonably close to the date
of the election not held." Ong's postulation should then be rejected. cdphil
In the course of the deliberations on these cases, the Court considered the possible application,
by analogy, of Section 10, Article VII of the 1987 Constitution providing that no special election in
the event of a vacancy in the Offices of the President and Vice President "shall be called if the
vacancy occurs within eighteen months before the date of the next presidential election," and of
the second paragraph of Section 4 of R.A. No. 7166 which provides:
"In case a permanent vacancy shall occur in the Senate or House of
Representatives at least one (1) year before the expiration of the term, the
Commission shall call and hold a special election to fill the vacancy not earlier
than sixty (60) days nor longer than ninety (90) days after the occurrence of
the vacancy. However, in case of such vacancy in the Senate, the special
election shall be held simultaneously with the next succeeding regular
election."
A view was expressed that we should not hold the special election because the underlying
philosophy for the prohibition to hold the special election if the vacancy occurred within a
certain period before the next presidential election or the next regular election, as the case
may be, is obviously the avoidance of the expense to be incurred in the holding of a special
election when a regular election is, after all, less than a year away. The Court ultimately
resolved that the aforesaid constitutional and statutory proscriptions are inapplicable to
special elections which may be called under Section 6 of the Omnibus Election Code. First,
the special election in the former is to fill permanent vacancies in the Office of the President,
Vice President, and Members of Congress occurring after the election, while the special
election under the latter is due to or by reason of a failure of election. Second, a special
election under Section 6 would entail minimal costs because it is limited to only the precincts
involved and to the candidates who, by the result of the election in a particular constituency,
would be affected by the failure of election. On the hand, the special election for the Offices
of the President, Vice President, and Senators would be nation-wide, and that of a
Representative, districtwide. Third, Section 6, when specifically applied to the instant case,
presupposes that no candidate had been proclaimed and theretofore the people of the
Second Legislative District of Northern Samar would be unrepresented in the House of
Representatives until the special election shall ultimately determine the winning candidate,
such that if none is held, they would have no representation until the end of the term. Under
the aforesaid constitutional and statutory provisions, the elected officials have already served
their constitutencies for more than one-half of their terms of office. Fourth, if the law had
found it fit to provide a specific and determinate time-frame for the holding of a special
election under Section 6, then it could have easily done so in Section 4 of R.A. No. 7166. LLpr

Another serious obstacle to Ong's proposition is that, considering the COMELEC's disposition of
Precinct No. 7 in the challenged Resolution, he would then be declared and proclaimed the duly
elected Representative of the Second legislative District of Northern Samar despite the fact that
as earlier observed, there was no counting of the votes of Precinct No. 7, and the results of the
district elections for Representative would be affected by the failure of the election in Precinct
No. 13. To accept the proposition is to allow a proclamation based on an incomplete canvass
where the final result would have been affected by the uncanvassed result of Precinct No. 7 and
by the failure of the election in Precinct No. 13 and to impose upon the people of the Second
Legislative District of Northern Samar a Representative whose mandate is, at the very least,
uncertain, and at the most, inexistent.
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered:
I. DISMISSING, for lack of merit, the petition in G.R. No. 113509; and
II. In G. R. No. 113107, DIRECTING the respondent Commission on Elections to:
(1) Reconvene, in its main office in Manila, within five (5) days from notice
hereof, the Special Board of Canvassers of the municipality of Silvino
Lobos, Northern Samar, which shall then, as a special Board of Election
Inspectors of Precinct No. 7 of said municipality, within forty-eight (48)
hours from its reconvening, count the ballots of said Precinct No. 7,
and deliver to the special Provincial Board of Canvassers of the said
Province a copy of the election returns;
(2) Reconvene, in its main office in Manila, within the same period as
aforestated, the special Provincial Board of Canvassers of Northern
Samar which shall then, within seventy-two (72) hours from its
reconvening:
(a) Include in the Municipal Certificate of Canvass of Silvino Lobos (1)
the total number of votes for petitioner Wilmar P. Lucero and
for petitioner Jose L. Ong, Jr., respectively, in Precinct No. 7 of
Silvino Lobos as recorded in the election returns submitted by
the aforementioned special Municipal Board of Canvassers,
and (2) the forty-three (43) votes for petitioner Wilmar P.
Lucero and the two (2) votes for petitioner Jose L. Ong, Jr. as
reflected in the election returns of Precinct No. 16 (Barangay
Tubgon) prepared, after a recount of the ballots, by the
special Board of Canvassers; and after such inclusions to enter
the new totals of the votes for the petitioners in the Certificate
of Provincial Canvass;

(b) Retabulate the total number of votes for Wilmar P. Lucero for the
Municipality of Las Navas, Northern Samar, which shall be two
thousand and five hundred thirty-seven (2,537) as reflected in
the Statement of Votes (C.E. Form 20-A) prepared and
submitted by the Municipal Board of Canvassers of Las Navas,
and to enter the same in the Certificate of Provincial Canvass;
cdll

EN BANC
[G.R. No. 133676. April 14, 1999.]

(c) After the accomplishment of all the foregoing, to sum up anew in

the Certificate of Provincial Canvass the canvassed municipal
certificates of canvass of all the municipalities of the Second
Legislative District of Northern Samar and if the same would
establish that the difference in votes between petitioner
Wilmar P. Lucero and petitioner Jose L. Ong, Jr. is less than
two hundred and thirteen (213), hence the failure the election
in Precinct No. 13 would unavoidably and inevitably affect then
the result of the election, to report to the Commission on
Elections such fact and to furnish the latter with a certified
photocopy of the Certificate of Provincial Canvass;
(3) Within three (3) days after receipt of the aforesaid report from the special
Provincial Board of Canvassers, to CALL a special election in Precinct
No. 13 of Silvino Lobos, which shall be held not later than thirty (30)
days from such call; a copy of the election returns of said special
election shall forthwith be transmitted to the Special Provincial Board
of Canvassers of Northern Samar, which shall then enter the results
thereof in its canvass and make a final summation of the results in the
Certificate of Provincial Canvass, and thereafter, pursuant to the
Omnibus Election Code, pertinent election laws and rules and
resolutions of the Commission, proclaim the winning candidate for
Representative of the Second Legislative District of Northern Samar.
If for any reason whatsoever it would not be possible to immediately reconvene the Special
Municipal Board of Canvassers of Silvino Lobos and the Special Provincial Board of Canvasses of
Northern Samar, and the COMELEC may create new ones. LLpr
No pronouncements as to costs.
SO ORDERED.
||| (Lucero v. COMELEC, G.R. No. 113107, 113509, [July 20, 1994])

TUPAY T. LOONG, petitioner, vs. COMMISSION ON ELECTIONS and

ABDUSAKUR TAN, respondents,
YUSOP JIKIRI, intervenor.

Pete Quirino-Quadra for petitioner.

The Solicitor General for public respondent.
Juan Climaco P. Elago II for intervenor.
Brillantes Navarro Jumamil Arcilla Escolin & Martinez Law Offices for private respondent.
SYNOPSIS
In the May 11, 1998 elections held in the Autonomous Region in Muslim Mindanao (ARMM), the
automated election system was implemented pursuant to R.A. No. 8436. However when the
automated machines failed to read correctly the ballots in the municipality of Pata, a manual
count was ordered by the COMELEC. The problem in Pata was traced by the technical experts of
COMELEC and the suppliers of the automated machines to an error in the printing of the ballots
caused by the misalignment of the ovals opposite the names of candidates and while the local
ballots in the other nearby five municipalities contained the wrong sequence code. The ballot
boxes were then transported to Manila. After a manual count, respondent Tan was proclaimed
governor-elect. Petitioner Loong was third in the count and Intervenor Jakiri placed second. The
latter two questioned the resolutions of the COMELEC ordering a manual count of the votes cast
in Sulu claiming denial of due process and illegality of manual count in light of R.A. No. 8436.

cdasia
Petitioner Loong and respondent Tan who were given every opportunity to oppose the manual
count were not denied due process. They were orally heard and submitted written position

papers and their representatives escorted the transfer of ballots to Manila and watched the
manual count from the beginning to the end.
Congress obviously failed to provide a remedy where the error in counting is not machinerelated. However, COMELEC is given the broad power to "enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall".
This provision gives COMELEC all the necessary powers for it to achieve the objective of holding
free, orderly, honest, peaceful and credible elections. Embraced therein is the power to order a
manual count where automated counting fails. Furthermore, R.A. No. 8436 did not prohibit the
manual counting when machine count does not work.
SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; PROPER REMEDY TO INVALIDATE
COMMISSION ON ELECTIONS' RESOLUTIONS ORDERING MANUAL COUNT IN AUTOMATED
ELECTION. We hold that certiorari is the proper remedy of the petitioner. Section 7, Article
IX(A) of the 1987 Constitution states that "unless provided by this Constitution or by law, any
decision, order or ruling of each Commission may be brought to the Supreme Court on certiorari
by the aggrieved party within thirty days from receipt of a copy thereof." We have interpreted
this provision to mean final orders, rulings and decisions of the COMELEC rendered in the
exercise of its adjudicatory or quasi-judicial powers. Contrariwise, administrative orders of the
COMELEC are not, as a general rule, if it subjects of a petition for certiorari. The main issue in
the case at bar is whether the COMELEC gravely abused its discretion when it ordered a manual
count of the 1998 Sulu local elections. A resolution of the issue will involve an interpretation of
R.A. No. 8436 on automated election in relation to the broad power of the COMELEC under
Section 2(1), Article IX(C) of the Constitution "to enforce and administer all laws and regulations
relative to the conduct of an election . . . ." The issue is not only legal but one of first impression
and undoubtedly suffused with significance to the entire nation. It is adjudicatory of the right of
the petitioner, the private respondent and the intervenor to the position of governor of Sulu.
These are enough considerations to call for an exercise of the certiorari jurisdiction of this Court.
2. ID.; ID.; ID.; GRAVE ABUSE OF DISCRETION; ORDER OF MANUAL COUNT BY COMMISSION
ON ELECTIONS WHERE AUTOMATED MACHINES FAILED TO CORRECTLY READ BALLOTS, NOT A
GRAVE ABUSE OF DISCRETION. The big issue, one of first impression, is whether the
COMELEC committed grave abuse of discretion amounting to lack of jurisdiction when it ordered
a manual count in light of R.A. No. 8436. The post election realities on ground will show that the
order for a manual count cannot be characterized as arbitrary, capricious or whimsical. It is well
established that the automated machines failed to read correctly the ballots in the municipality of
Pata. In enacting R.A. No. 8436, Congress obviously failed to provide a remedy where the error
in counting is not machine-related for human foresight is not all-seeing. We hold, however, that
the vacuum in the law cannot prevent the COMELEC from levitating above the problem. By

means of the manual count, the will of the voters of Sulu was honestly determined. We cannot
kick away the will of the people by giving a literal interpretation to R.A. 8436. R.A. 8436 did not
prohibit manual counting when machine count does not work. Counting is part and parcel of the
conduct of an election which is under the control and supervision of the COMELEC. It ought to be
self-evident that the Constitution did not envision a COMELEC that cannot count the result of an
election. HSTCcD
3. POLITICAL LAW; ELECTIONS; SPECIAL ELECTIONS; MUST BE ADDRESSED TO COMMISSION
ON ELECTIONS ON SPECIAL GROUND; CASE AT BAR. We cannot order a special election
unless demanded by exceptional circumstances. Thus, the plea for this Court to call a special
election for the governorship of Sulu is completely off-line. The plea can only be grounded on
failure of election. Section 6 of the Omnibus Election Code tells us when there is a failure of
election. To begin with, the plea for a special election must be addressed to the COMELEC and
not to this Court. Section 6 of the Omnibus Election Code should be read in relation to Section 4
of R.A. No. 7166. The grounds for failure of election force majeure, terrorism, fraud or other
analogous causes clearly involve questions of fact. It is for this reason that they can only be
determined by the COMELEC en banc after due notice and hearing to the parties. In the case at
bar, petitioner never asked the COMELEC en banc to call for a special election in Sulu. Even in his
original petition with this Court, petitioner did not pray for a special election. His plea for a special
election is a mere afterthought. Too late in the day and too unprocedural. Worse, the grounds for
failure of election are inexistent. The records show that the voters of Sulu were able to cast their
votes freely and fairly. Their votes were counted correctly, albeit manually. The people have
spoken. Their sovereign will has to be obeyed. There is another reason why a special election
cannot be ordered by this Court. To hold a special election only for the position of Governor will
be discriminatory and will violate the right of private respondent to equal protection of the law.
The records show that all elected officials in Sulu have been proclaimed and are now discharging
their powers and duties. Thus, two (2) congressmen, a vice-governor, eight (8) members of the
Sangguniang Panlalawigan and eighteen (18) mayors, numerous vice-mayors and municipal
councilors are now serving in their official capacities. These officials were proclaimed on the basis
of the same manually counted votes of Sulu. If manual counting is illegal, their assumption of
office cannot also be countenanced. Private respondent's election cannot be singled out as invalid
for alikes cannot be treated unalikes.
PANGANIBAN, J., dissenting opinion:
1. POLITICAL LAW; ELECTION LAW; ABANDONMENT OF ONGOING AUTOMATED COUNTING OF
VOTES IN AUTOMATED ELECTION SYSTEM IN ARMM, A GRAVE ABUSE OF DISCRETION.
Republic Act (R.A.) 8436 explicitly mandates the Comelec to "use an automated election system .
. . for the process of voting, counting of votes and canvassing, consolidation of results" in the
ARMM. However, contrary to its above clear mandate, the Comelec abandoned the ongoing
automated counting of votes in Sulu during the last elections and substituted it mid-stream with
the manual system. This reversion to the manual election system is nowhere authorized in the

same or any law. Clearly, the poll body has no legislative power to modify, much less to
contravene, the law. Neither can it assume powers not granted to it either by the Constitution or
by Congress. The assailed Comelec Minute Resolutions authorizing the manual count must be set
aside and declared null and void for having been issued with the grave abuse of discretion
amounting to lack or excess of jurisdiction. ISTHED
2. ID.; ID.; ELECTION PROTEST; REMEDY WHERE THERE ARE FALSE RETURNS; CASE AT BAR.
During the canvassing (which, under the automated system, is also done separately from the
counting), the adversely affected parties could have objected to the inclusion of the questioned
election return and followed, by analogy, the procedure for pre-proclamation controversy laid
down in Section 243 of the OEC, as amended by Section 20 of R.A. 7166. Had that recourse
failed, the aggrieved candidate's remedy was an election protest. Suspending and finally stopping
the automated count were completely uncalled for. There simply was no basis was no basis for it.
3. ID.; ID.; ID.; IMMINENT VIOLENCE, NOT A GROUND FOR ABANDONMENT OF ELECTIONS IN
AUTOMATED ELECTION. Even assuming arguendo that imminent violence threatened the
counting center, such situation would justify only the transfer of the counting venue. Even then,
the concurrence of the majority of the watchers for such transfer is still required under the OEC.
It does not appear on record that the consent of the watchers was ever sought, not to say given.
On the contrary, Minute Resolution No. 98-1750 (dated May 13, 1998), which ordered the
change of venue for the counting, was issued ex parte by the Comelec en banc, without any
petition, recommendation or proper investigation for said purpose. Such arbitrary and
peremptory issuance, in violation of law, again amounted to an abusive exercise of discretion.
But, even granting arguendo that the transfer of the counting venue was valid, the abandonment
of the automated count was definitely not a necessary legal consequence thereof. In other
words, only the venue could have been changed, but not the method of counting. If the Comelec
had conducted an automated count in Manila, that may even be arguably sustained. I repeat, the
alleged imminent threat of violence did not at all justify the manualization of the counting
process; if at all, it only authorized a change of venue of the automated count.

4. ID.; ID.; COMMISSION ON ELECTIONS; HAS THE DUTY TO COMPLY WITH THE MANDATE OF
CONGRESS. Although not expressly sanctioned by law, such parallel manual count may
arguably be regarded as falling within the residual regulatory authority of the Comelec.
Unfortunately and inexplicably, however, only a manual count was done; the Resolution ordering
an automated count was simply ignored without the Comelec giving any reason therefor. To
repeat, there was no reason at all to completely abandon the automated count. The Comelec had
a duty to comply with the mandate of Congress. Yet, for unstated and, unexplainable reasons, it
simply substituted the will of Congress with its own arbitrary action. Clearly, the Comelec acted
without or in excess of its jurisdiction. EaScHT

5. ID.; ID.; R.A. NO. 8436 (AUTOMATED ELECTIONS IN ARMM); RESORT TO MANUAL
APPRECIATION OF VOTE, PRECLUDED THEREBY. The resort to a manual appreciation of the
ballots is precluded by the basic features of the automated election system, which requires
minimum human intervention, the use of a special quality of ballot paper, the use of security
codes, the mere shading of an oval corresponding to the name of the candidate voted for, and
the mechanized discrimination of genuine from spurious ballots, as well as rejection of fake or
counterfeit ones. The automated system takes away the discretion of the boards of election
inspectors (BEI) in appreciating ballots. Thus, the resort to a manual count under the facts of this
case was antithetical to the rationale and intent behind R.A. 8436. The very purpose of the law
was defeated by the cumbersome, inaccurate and error-prone manual system of counting
automated votes.
6. ID.; ID.; ID.; ORDER OF COMMISSION ON ELECTIONS ORDERING MANUAL COUNT, ISSUED
WITHOUT DUE PROCESS. While the parties may have been heard by Atty. Tolentino, their
inputs were definitely not communicated to nor required by the Commission en banc prior to its
issuance of Minute Resolution 98-1747. Besides, the Tolentino meeting took up the problems in
the Municipality of Pata only, for the alleged problems in the five other municipalities of Sulu
were discovered after that meeting was adjourned already. Such meeting, therefore, did not
serve as a sufficient basis for the Comelec to abandon the automated count in the entire
province; to transfer the counting venue from Sulu to Manila; and to totally shift to the manual
count. In making these decisions and issuing the resolutions therefor, the Comelec clearly did not
accord the parties due process. It did not give them any opportunity to be heard prior the
promulgation of its rulings. The Comelec simply acted on its own.
7. ID.; ID.; SOVEREIGN WILL MUST PREVAIL OVER TECHNICALITIES. Time and again, the
Court has held that the sovereign will must prevail over legal technicalities. But when the popular
will itself is placed in serious doubt due to the irregularity of the very method used in determining
it, we must allow the people involved another chance to express their true choice. We simply
cannot impose upon the people of Sulu one who was not their clear choice, or whose election
was, at the very least, placed in serious doubt by the spuriousness of the method used in
counting the votes. TCaAHI
8. REMEDIAL LAW; ACTIONS; ESTOPPEL; PARTY ESTOPPED FROM QUESTIONING VALIDITY OF
ASSUMPTION TO OFFICE; CASE AT BAR. The consequent loss of a legal and appropriate
means to ascertain the genuine will of the voters during the last election in Sulu necessitates the
holding of a special election. Such special election will, however, concern only the position of
governor of the Province of Sulu. Only this position was contested in the instant petition; only the
candidates therefor have timely sought relief from this Court to assail the manual count and the
subject Minute Resolutions of the Comelec. The same relief cannot be granted to the candidates
for the other positions who, insofar as they are concerned, are deemed to have accepted the
results of the manual count as truly reflective of the will of the people of Sulu. Their failure to
object in due time to the process, as well as the results, manifests their conformity and

acceptance. They are now estopped from questioning the validity of the assumption into office of

the duly proclaimed winners of the other positions in the province, whose rights cannot be
adversely affected in these proceedings without them being haled to and accorded their day in
court. Even this Court has admitted the wisdom of this caveat as it denied the late intervention of
Vice Gubernatorial Candidate Abdulwahid Sahidulla.
9. ID.; COURTS; JURISDICTION; COURTS HAVE NO JURISDICTION TO MAKE LEGISLATIVE
PRONOUNCEMENTS. Courts have no jurisdiction to make legislative pronouncements. They
have no power to fill a vacuum in the law. Thus, the Court, should not give its imprimatur to the
Comelec's resort to the manual method of determining election results, where Congress has
categorically prescribed the automated system. Only Congress, the legislative arm of the
government, can prescribe a precise remedy that will address the flaws identified in this case. For
the courts or the Comelec to do so (like a resort to manual count) would be tantamount to
judicial or administrative legislation, a course diametrical to the constitutional principle of
separation of powers. HEDSIc

DECISION

PUNO, J p:
In a bid to improve our elections, Congress enacted R.A. No. 8436 on December 22,
1997 prescribing the adoption of an automated election system. The new system was
used in the May 11, 1998 regular elections held in the Autonomous Region in Muslim
Mindanao (ARMM) which includes the Province of Sulu. Atty. Jose Tolentino, Jr. headed the
COMELEC Task Force to have administrative oversight of the elections in Sulu. cdasia
The voting in Sulu was relatively peaceful and orderly. 1 The problem started during
the automated counting of votes for the local officials of Sulu at the Sulu State College. At
about 6 a.m. of May 12, 1998, some election inspectors and watchers informed Atty.
Tolentino, Jr. of discrepancies between the election returns and the votes cast for the
mayoralty candidates in the municipality of Pata. Some ballots picked at random by Atty.
Tolentino, Jr. confirmed that votes in favor of a mayoralty candidate were not reflected in the
printed election returns. He suspended the automated counting of ballots in Pata and
immediately communicated the problem to the technical experts of COMELEC and the
suppliers of the automated machine. After consultations, the experts told him that the
problem was caused by the misalignment of the ovals opposite the names of
candidates in the local ballots. They found nothing wrong with the automated
machines. The error was in the printing of the local ballots, as a consequence of which, the
automated machines failed to read them correctly. 2

At 12:30 p.m. of the same day, Atty. Tolentino, Jr. called for an emergency
meeting of the local candidates and the military-police officials overseeing the Sulu elections.
Those who attended were the various candidates for governor, namely, petitioner Tupay
Loong, private respondent Abdusakur Tan, intervenor Yusop Jikiri and Kimar Tulawie. Also in
attendance were Brig. Gen. Edgardo Espinosa, AFP, Marine Forces, Southern Philippines,
Brig. Gen. Percival Subala, AFP, 3rd Marine Brigade, Supt. Charlemagne Alejandrino,
Provincial Director, Sulu, PNP Command and congressional candidate Bensandi Tulawie. 3
The meeting discussed how the ballots in Pata should be counted in light of the
misaligned ovals. There was lack of agreement. Those who recommended a shift to manual
count were Brig. Generals Espinosa and Subala, PNP Director Alejandrino, gubernatorial
candidates Tan and Tulawie and congressional candidate Bensandi Tulawie. Those who
insisted on an automated count were gubernatorial candidates Loong and Jikiri. In view of
their differences in opinion, Atty. Tolentino, Jr. requested the parties to submit their written
position papers. 4
Reports that the automated counting of ballots in other municipalities in
Sulu was not working well were received by the COMELEC Task Force. Local
ballots in five (5) municipalities were rejected by the automated machines. These
municipalities were Talipao, Siasi, Tudanan, Tapul and Jolo. The ballots were
rejected because they had the wrong sequence code. 5
Private respondent Tan and Atty. Tolentino, Jr. sent separate communications to the
COMELEC en banc in Manila. Still, on May 12, 1998, Tan requested for the suspension of the
automated counting of ballots throughout the Sulu province. 6 On the same day, COMELEC
issued Minute Resolution No. 98-1747 ordering a manual count but only in the municipality of
Pata. The resolution reads: 7
"xxx xxx xxx
"In the matter of the Petition dated May 12, 1998 of Abdusakur Tan,
Governor, Sulu, to suspend or stop counting of ballots through automation
(sic) machines for the following grounds, quoted to wit:
'1. The Election Returns for the Municipality of Pata, Province of SuluDistrict II do not reflect or reveal the mandate of the voters:
'DISCUSSIONS
'That the watchers called the attention of our political leaders and
candidates regarding their discovery that the election returns
generated after the last ballots for a precinct is scanned revealed that
some candidates obtained zero votes, among others the Provincial

Board Members, Mayor, Vice-Mayor, and the councilors for the LAKASNUCD-UMDP;
'That the top ballot, however, reveals that the ballots
contained votes for Anton Burahan, candidate for Municipal
Mayor while the Election Return shows zero vote;
'That further review of the Election Return reveals that John
Masillam, candidate for Mayor under the LAKAS-NUCD-UMDPMNLF obtains (sic) 100% votes of the total number of voters
who actually voted;

'The foregoing discrepancies were likewise noted and confirmed by the

chairmen, poll clerks and members of the Board of Election Inspectors
(BEI) such as Rena Jawan, Matanka Hajirul, Dulba Kadil, Teddy
Mirajuli, Rainer Talcon, Mike Jupakal, Armina Akmad, Romulo Roldan
and Lerma Marawali to mention some;
'The Pata incident can be confirmed by no less than Atty. Jose
Tolentino, Head, Task Force Sulu, whose attention was called
regarding the discrepancies;
'The foregoing is a clear evidence that the automated machine
(scanner) cannot be relied upon as to truly reflect the contents of the
ballots. If such happened in the Municipality of Pata, it is very possible
that the same is happening in the counting of votes in the other
municipalities of this province. If this will not be suspended or stopped,
the use of automated machines will serve as a vehicle to frustrate the
will of the sovereign people of Sulu;
'Wherefore, the foregoing premises considered and in the interest of
an honest and orderly election, it is respectfully prayed of this
Honorable Commission that an Order be issued immediately
suspending or stopping the use of the automated machine (scanner) in
the counting of votes for all the eighteen (18) municipalities in the
Province of Sulu and in lieu thereof, to avoid delay, counting be done
through the usual way and known and tested by us.'

votes may have been occasioned by other factors, a matter that

requires immediate investigation, but in the public interest, the
Commission,
'RESOLVED to grant the Petition dated May 12, 1998 and to
Order that the counting of votes shall be done manually in the
Municipality of PATA, the only place in Sulu where the
automated machine failed to read the ballots, subject to
notice to all parties concerned."' LLjur
Before midnight of May 12, 1998, Atty. Tolentino, Jr. was able to send to the COMELEC en
banc his report and recommendation, urging the use of the manual count in the entire
Province of Sulu, viz: 8
"The undersigned stopped the counting in the municipality of Pata
since he discovered that votes for a candidate for mayor was credited in favor
of the other candidate. Verification with the Sulu Technical Staff, including Pat
Squires of ES & S, reveals that the cause of the error is the way the ballot was
printed. Aside from misalignment of the ovals and use of codes assigned to
another municipality (which caused the rejection of all local ballots in one
precinct in Talipao), error messages appeared on the screen although the
actual condition of the ballots would have shown a different message. Because
of these, the undersigned directed that counting for all ballots in Sulu be
stopped to enable the Commission to determine the problem and rectify the
same. It is submitted that stopping the counting is more in consonance with
the Commission's mandate than proceeding with an automated but inaccurate
count.
"In view of the error discovered in Pata and the undersigned's order to
suspend the counting, the following documents were submitted to him.
"1. Unsigned letter dated May 12, 1998 submitted by Congressman Tulawie for
manual counting and canvassing;
"2. Petition of Governor Sakur Tan for manual counting;
"3. Position paper of Tupay Loong, Benjamin Loong, and Asani Tamang for
automated count;
"4. MNLF Position for automated count; and

"While the commission does not agree with the conclusions

stated in the petition, and the failure of the machine to read the

"5. Recommendation of General E. V. Espinosa, General PM Subala, and PD CS

Alejandrino for manual count;
"Additional marines have been deployed at the SSC. The undersigned is not
sure if it is merely intended to tame a disorderly crowd, inside and outside
SSC, or a show of force.
"It is submitted that since an error was discovered in a machine
which is supposed to have an error rate of 1:1,000,000, not a few
people would believe that this error in Pata would extend to the
other municipalities. Whether or not this is true, it would be more
prudent to stay away from a lifeless thing that has sown tension and
anxiety among and between the voters of Sulu.

Governor Sakur Tan and recommendation of Brigadier General

Edgardo Espinosa, General Percival Subala, P/Supt. Charlemagne
Alejandrino for manual counting. The position paper of former
Governor Tupay Loong, Mr. Benjamin Loong and Mr. Asani S. Tamang,
who are candidates for Governor and Congressman of 1st and 2nd
Districts respectively, who wanted the continuation of the automated
counting.
"While the forces of AFP are ready to provide arm (sic)
security to our Comelec officials, BEIs and other deputies, the
political tensions and imminent violence and bloodshed may not be
prevented, as per report received, the MNLF forces are readying their
forces to surround the venue for automated counting and canvassing
in Sulu in order that the automation process will continue. LLphil

Respectfully submitted:
12 May 1998
(SGD.) JOSE M. TOLENTINO, JR."
The next day, May 13, 1998, COMELEC issued Resolution No. 98-1750 approving
Atty. Tolentino, Jr.'s recommendation and the manner of its implementation as suggested by
Executive Director Resurreccion Z. Borra. The Resolution reads: 9
"In the matter of the Memorandum dated 13 May 1998 of Executive
Director Resurreccion Z. Borra, pertinent portion of which is quoted as follows:
"In connection with Min. Res. No. 98-1747 promulgated May 12, 1998
which resolved to order that the counting of votes shall be done manually in
the municipality of Pata, the only place in Sulu where the automated counting
machine failed to read the ballots, subject to notice to all parties concerned,
please find the following:
"1. Handwritten Memo of Director Jose M. Tolentino, Jr., Task Force Head,
Sulu, addressed to the Executive Director on the subject counting and
canvassing in the municipality of Pata due to the errors of the counting
of votes by the machine brought about by the error in the printing of
the ballot, causing misalignment of ovals and use of codes assigned to
another municipality.
He recommended to revert to the manual counting of votes in the
whole of Sulu. He attached the stand of Congressman Tulawie,

"Director Borra recommends, that while he supports Minute Resolution

No. 98-1747, implementation thereof shall be done as follows:
"1. That all the counting machines from Jolo, Sulu be transported
back by C130 to Manila and be located at the available space
at PICC for purposes of both automated and manual
operations. This approach will keep the COMELEC officials
away from violence and bloodshed between the two camps
who are determined to slug each other as above mentioned in
Jolo, Sulu. Only authorized political party and candidate
watchers will be allowed in PICC with proper security, both
inside and outside the perimeters of the venue at PICC.
"2. With this process, there will be an objective analysis and
supervision of the automated and manual operations by both
the MIS and Technical Expert of the ES & S away from the
thundering mortars and the sounds of sophisticated heavy
weapons from both sides of the warring factions.
"3. Lastly, it will be directly under the close supervision and control of
Commission on Elections En Banc.
"RESOLVED:
"1. To transport all counting machines from Jolo, Sulu by C130
to Manila for purposes of both automated and manual
operations, with notice to all parties concerned;

"2. To authorize the official travel of the board of canvassers

concerned for the conduct of the automated and
manual operations of the counting of votes at PICC
under the close supervision and control of the
Commission En Banc. For this purpose, to make
available a designated space at the PICC;

'3. The creation of the following Special Boards of Inspectors under the
supervision of Atty. Jose M. Tolentino, Jr., Task Force Head,
Sulu, namely:
a) Atty. Mamasapunod M. Aguam
Ms. Gloria Fernandez

"3. To authorize the presence of only the duly authorized

representative of the political parties concerned and
the candidates watchers both outside and inside the
perimeters of the venue at PICC."
Atty. Tolentino, Jr. furnished the parties with copies of Minute Resolution
No. 98-1750 and called for another meeting the next day, May 14, 1998, to
discuss the implementation of the resolution. 10 The meeting was attended by the
parties, by Lt. Gen. Joselin Nazareno, then the Chief of the AFP Southern Command, the
NAMFREL, media, and the public. Especially discussed was the manner of transporting the
ballots and the counting machines to the PICC in Manila. They agreed to allow each political
party to have at least one (1) escort/watcher for every municipality to accompany the flight.
Two C130s were used for the purpose. 11
On May 15, 1998, the COMELEC en banc issued Minute Resolution No. 981796 laying down the rules for the manual count, viz: 12
"In the matter of the Memorandum dated 15 May 1998 of Executive
Director Resurreccion Z. Borra, quoted to wit:
'In the implementation of COMELEC Min. Resolution No. 98-1750
promulgated 13 May 1998 in the manual counting of votes of Pata,
Sulu, and in view of the arrival of the counting machines, ballot boxes,
documents and other election paraphernalia for the whole province of
Sulu now stored in PICC, as well as the arrival of the Municipal Board
of Canvassers of said Municipality in Sulu, and after conference with
some members of the Senior Staff and Technical Committee of this
Commission, the following are hereby respectfully recommended:
'1. Manual counting of the local ballots of the automated election
system in Pata, Sulu;
'2. Automated counting of the national ballots considering that there
are no questions raised on the National Elective Officials as
pre-printed in the mark-sensed ballots;

Ms. Esperanza Nicolas

b) Director Ester L. Villaflor-Roxas
Ms. Celia Romero
Ms. Rebecca Macaraya
c) Atty. Zenaida S. Soriano
Ms. Jocelyn Guiang
Ma. Jacelyn Tan
d) Atty. Erlinda C. Echavia

Ms. Theresa A. Torralba

Ms. Ma. Carmen Llamas
e) Director Estrella P. de Mesa
Ms. Teresita Velasco
Ms. Nelly Jaena
'4. Additional Special Board of Inspectors may be created when
necessary.
'5. The Provincial Board of Canvassers which by standing Resolution is
headed by the Task Force Sulu Head shall consolidate the
manual and automated results as submitted by the Municipal
Boards of Canvassers of the whole province with two members
composed of Directors Estrella P. de Mesa and Ester L.
Villaflor-Roxas;

'6. The political parties and the candidates in Sulu as well as the PartyList Candidates are authorized to appoint their own watchers
upon approval of the Commission',
'RESOLVED to approve the foregoing recommendations in the
implementation of Min. Resolution No. 98-1750 promulgated
on 13 May 1998 providing for the manual counting of votes in
the municipality of Pata, Sulu.
'RESOLVED, moreover, considering the recommendation of
Comm. Manolo B. Gorospe, Commissioner-In-Charge, ARMM,
to conduct a parallel manual counting on all 18 municipalities
of Sulu as a final guidance of the reliability of the counting
machine which will serve as basis for the proclamation of the
winning candidates and for future reference on the use of the
automated counting machine."'
On May 18, 1998, petitioner filed his objection to Minute Resolution No. 98-1796, viz:
13
"1. The minute resolution under agenda No. 98-1796 violates the
provisions of Republic Act No. 8436 providing for an automated counting of the
ballots in the Autonomous Region in Muslim Mindanao. The automated
counting is mandatory and could not be substituted by a manual counting.
Where the machines are allegedly defective, the only remedy provided for by
law is to replace the machine. Manual counting is prohibited by law;
"2. There are strong indications that in the municipality of Pata the
ballots of the said municipality were rejected by the counting machine because
the ballots were tampered and/or the texture of the ballots fed to the counting
machine are not the official ballots of the Comelec;
"3. The automated counting machines of the Comelec have been
designed in such a way that only genuine official ballots could be read and
counted by the machine;
"4. The counting machines in the other municipalities are in order. In
fact, the automated counting has already started. The automated counting in
the municipalities of Lugus and Panglima Tahil has been completed. There is
no legal basis for the 'parallel manual counting' ordained in the disputed
minute resolution."

Nonetheless, COMELEC started the manual count on the same date, May 18, 1998.
cda
On May 25, 1998, petitioner filed with this Court a petition for certiorari and
prohibition under Rule 65 of the Rules of Court. He contended that: (a) COMELEC issued
Minute Resolution Nos. 98-1747, 98-1750, and 98-1798 without prior notice and hearing to
him; (b) the order for manual counting violated R.A. No. 8436; (c) manual counting gave
"opportunity to the following election cheating," namely.
"(a) The counting by human hands of the tampered, fake and
counterfeit ballots which the counting machines have been programmed to
reject (Section 7, 8 & 9 of Rep. Act 8436).
"(b) The opportunity to substitute the ballots all stored at the PICC. In
fact, no less than the head of the COMELEC Task Force of Sulu, Atty. Jose M.
Tolentino, Jr. who recommended to the COMELEC the anomalous manual
counting, had approached the watchers of petitioners to allow the retrieval of
the ballots, saying "tayo, tayo lang mga watchers, pag-usapan natin,"
clearly indicating overtures of possible bribery of the watchers of petitioner
(ANNEX E).
"(c) With the creation by the COMELEC of only 22 Boards of Election
Inspectors to manually count the 1,194 precincts, the manipulators are given
sufficient time to change and tamper the ballots to be manually counted.
"(d) There is the opportunity of delaying the proclamation of the
winning candidates through the usually dilatory moves in a pre-proclamation
controversy because the returns and certificates of canvass are already human
(sic) made. In the automated counting there is no room for any dilatory preproclamation controversy because the returns and the MBC and PBC
certificates of canvass are machine made and immediate proclamation is
ordained thereafter."
Petitioner then prayed:
"WHEREFORE, it is most especially prayed of the Honorable Court that:
"1. upon filing of this petition, a temporary restraining order be issued
enjoining the COMELEC from conducting a manual counting of the
ballots of the 1,194 precincts of the 18 municipalities of the Province of
Sulu but instead proceed with the automated counting of the ballots,
preparation of the election returns and MBC, PBC certificates of

canvass and proclaim the winning candidates on the basis of the

automated counting and consolidation of results;
"2. this petition be given due course and the respondents be required
to answer;
"3. after due hearing, the questioned COMELEC En Banc Minute
Resolutions of May 12, 13, 15, and 17, 1998 be all declared null and
void ab initio for having been issued without jurisdiction and/or with
grave abuse of discretion amounting to lack of jurisdiction and for
being in violation of due process of law;
"4. the winning candidates of the Province of Sulu be proclaimed on
the basis of the results of the automated counting, automated election
returns, automated MBC and PBC certificates of canvass;

2. Assuming the appropriateness of the remedy, whether or not COMELEC

committed grave abuse of discretion amounting to lack of jurisdiction
in ordering a manual count.
2.a. Is there a legal basis for the manual count?
2.b. Are its factual bases reasonable?
2.c. Were the petitioner and the intervenor denied due process by the
COMELEC when it ordered a manual count?
3. Assuming the manual count is illegal and that its result is unreliable,
whether or not it is proper to call for a special election for the position
of governor of Sulu.
We shall resolve the issues in seriatim.

"xxx xxx xxx."

On June 8, 1998, private respondent Tan was proclaimed governor-elect of
Sulu on the basis of the manual count. 14 Private respondent garnered 43,573
votes. Petitioner was third with 35,452 votes or a difference of 8,121 votes.
On June 23, 1998, this Court required the respondents to file their Comment to the
petition and directed the parties "to maintain the status quo prevailing at the time of the
filing of the petition." 15 The vice-governor elect was allowed to temporarily discharge the
powers and functions of governor.
On August 20, 1998, Yusop Jikiri, the LAKAS-NUCD-UMDP-MNLF candidate for
governor filed a motion for intervention and a Memorandum in Intervention. 16 The result of
the manual count showed he received 38,993 votes and placed second. Similarly, he alleged
denial of due process, lack of factual basis of the COMELEC resolutions and illegality of
manual count in light of R.A. No. 8436. The Court noted his intervention. 17 A similar petition
for intervention filed by Abdulwahid Sahidulla, a candidate for vice-governor, on October 7,
1998 was denied as it was filed too late.
In due time, the parties filed their respective Comments. On September 25, 1998,
the Court heard the parties in oral argument 18 which was followed by the submission of
their written memoranda. cdlex
The issues for resolution are the following:
1. Whether or not a petition for certiorari and prohibition under Rule 65 of the
Rules of Court is the appropriate remedy to invalidate the disputed
COMELEC resolutions.

First. We hold that certiorari is the proper remedy of the petitioner. Section 7, Article
IX (A) of the 1987 Constitution states that "unless provided by this Constitution or by law,
any decision, order or ruling of each Commission may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty days from receipt of a copy thereof." We have
interpreted this provision to mean final orders, rulings and decisions of the COMELEC
rendered in the exercise of its adjudicatory or quasi-judicial powers. 19 Contrariwise,
administrative orders of the COMELEC are not, as a general rule, fit subjects of a petition for
certiorari. The main issue in the case at bar is whether the COMELEC gravely abused its
discretion when it ordered a manual count of the 1998 Sulu local elections. A resolution of
the issue will involve an interpretation of R.A. No. 8436 on automated election in relation to
the broad power of the COMELEC under Section 2(1), Article IX(C) of the Constitution "to
enforce and administer all laws and regulations relative to the conduct of an election . . ."
The issue is not only legal but one of first impression and undoubtedly suffused with
significance to the entire nation. It is adjudicatory of the right of the petitioner, the private
respondent and the intervenor to the position of governor of Sulu. These are enough
considerations to call for an exercise of the certiorari jurisdiction of this Court.
Second. The big issue, one of first impression, is whether the COMELEC committed
grave abuse of discretion amounting to lack of jurisdiction when it ordered a manual count in
light of R.A. No. 8436. The post election realities on ground will show that the order for a
manual count cannot be characterized as arbitrary, capricious or whimsical.
a. It is well established that the automated machines failed to read correctly
the ballots in the municipality of Pata. A mayoralty candidate, Mr.
Anton Burahan, obtained zero votes despite the representations of the

Chairman of the Board of Election Inspectors and others that they

voted for him. Another candidate garnered 100% of the votes.
b. It is likewise conceded that the automated machines rejected and would not
count the local ballots in the municipalities of Talipao, Siasi, Indanan,
Tapal and Jolo.

c. These flaws in the automated counting of local ballots in the municipalities

of Pata, Talipao, Siasi, Indanan, Tapal and Jolo were carefully analyzed
by the Technical experts of COMELEC and the supplier of the
automated machines. All of them found nothing wrong with the
automated machines. They traced the problem to the printing of local
ballots by the National Printing Office. In the case of the municipality
of Pata, it was discovered that the ovals of the local ballots were
misaligned and could not be read correctly by the automated
machines. In the case of the municipalities of Talipao, Siasi, Indanan,
Tapal and Jolo, it turned out that the local ballots contained the wrong
sequence code. Each municipality was assigned a sequence code as a
security measure. Ballots with the wrong sequence code were
programmed to be rejected by the automated machines.
It is plain that to continue with the automated count in these five (5) municipalities
would result in a grossly erroneous count. It cannot also be gainsaid that the count in these
five (5) municipalities will affect the local elections in Sulu. There was no need for more
sampling of local ballots in these municipalities as they suffered from the same defects. All
local ballots in Pata with misaligned ovals will be erroneously read by the automated
machines. Similarly, all local ballots in Talipao, Siasi, Indanan, Tapal and Jolo with wrong
sequence codes are certain to be rejected by the automated machines. There is no showing
in the records that the local ballots in these five (5) municipalities are dissimilar which could
justify the call for their greater sampling.
Third. These failures of automated counting created post election tension in Sulu, a
province with a history of violent elections. COMELEC had to act decisively in view of the fast
deteriorating peace and order situation caused by the delay in the counting of votes. The
evidence of this fragile peace and order cannot be downgraded. In his handwritten report to
the COMELEC dated May 12, 1998, Atty. Tolentino, Jr. stated:
"xxx xxx xxx

"Additional marines have been deployed at the SSC. The undersigned

is not sure if it is merely intended to tame a disorderly crowd inside and
outside SSC, or a show of force.
"It is submitted that since an error was discovered in a machine which
is supposed to have an error rate of 1:1,000,000, not a few people would
believe that this error in Pata would extend to the other municipalities.
Whether or not this is true, it would be more prudent to stay away from
a lifeless thing that has sown tension and anxiety among and
between the voters of Sulu."
Executive Director Resurreccion Z. Borra, Task Force Head, ARMM in his May 13, 1998
Memorandum to the COMELEC likewise stated:
xxx xxx xxx
"While the forces of AFP are ready to provide arm (sic)
security to our COMELEC officials, BEI's and other deputies, the
political tensions and imminent violence and bloodshed may not be
prevented, as per report received, the MNLF forces are readying their
forces to surround the venue for automated counting and canvassing
in Sulu in order that automation process will continue."
Last but not the least, the military and the police authorities unanimously recommended
manual counting to preserve peace and order. Brig. Gen. Edgardo V. Espinosa, Commanding
General, Marine Forces Southern Philippines, Brig. Gen. Percival M. Subala, Commanding
General, 3rd Marine Brigade, and Supt. Charlemagne S. Alejandrino, Provincial Director, Sulu
PNP Command explained that it ". . . will not only serve the interest of majority of the
political parties involved in the electoral process but also serve the interest of the military and
police forces in maintaining peace and order throughout the province of Sulu."
An automated count of the local votes in Sulu would have resulted in a wrong count,
a travesty of the sovereignty of the electorate. Its aftermath could have been a bloodbath.
COMELEC avoided this imminent probability by ordering a manual count of the votes. It
would be the height of irony if the Court condemns COMELEC for aborting violence in the
Sulu elections.
Fourth. We also find that petitioner Loong and intervenor Jikiri were not denied due
process. The Tolentino memorandum clearly shows that they were given every opportunity
to oppose the manual count of the local ballots in Sulu. They were orally heard. They later
submitted written position papers. Their representatives escorted the transfer of the ballots
and the automated machines from Sulu to Manila. Their watchers observed the manual count
from beginning to end. We quote the Tolentino memorandum, viz:

"xxx xxx xxx

"On or about 6:00 a.m. of May 12, 1998, while automated counting of
all the ballots for the province of Sulu was being conducted at the counting
center located at the Sulu State College, the COMELEC Sulu Task Force Head
(TF Head) proceeded to the room where the counting machine assigned to the
municipality of Pata was installed to verify the cause of the commotion therein.

On or about 12:30 p.m., the TF Head presided over a conference at

Camp General Bautista (3rd Marine Brigade) to discuss the process by which
the will of the electorate could be determined. Present during the meeting
were:
1. Brig. Gen. Edgardo Espinoza
Marine Forces, Southern Philippines

"During the interview conducted by the TF Head, the members of the

Board of Election Inspectors (BEI) and watchers present in said room stated
that the counting machine assigned to the municipality of Pata did not reflect
the true results of the voting thereat. The members of the BEI complained that
their votes were not reflected in the printout of the election returns since per
election returns of their precincts, the candidate they voted for obtained
"zero". After verifying the printout of some election returns as against the
official ballots, the TF Head discovered that votes cast in favor of a mayoralty
candidate were credited in favor of his opponent.

2. Brig. Gen. Percival Subala

3rd Marine Brigade
3. Provincial Dir. Charlemagne Alejandrino
Sulu PNP Command
4. Gubernatorial Candidate Tupay Loong
LAKAS-NUCD Loong Wing

"In his attempt to remedy the situation, the TF Head suspended the
counting of all ballots for said municipality to enable COMELEC field technicians
to determine the cause of the technical error, rectify the same, and thereafter
proceed with automated counting. In the meantime, the counting of the ballots
for the other municipalities proceeded under the automated system.
"Technical experts of the supplier based in Manila were informed of
the problem and after numerous consultations through long distance calls, the
technical experts concluded that the cause of the error was in the manner the
ballots for local positions were printed by the National Printing Office (NPO),
namely, that the ovals opposite the names of the candidates were not properly
aligned. As regards the ballots for national positions, no error was found.
"Since the problem was not machine-related, it was obvious that the
use of counting machines from other municipalities to count the ballots of the
municipality of Pata would still result in the same erroneous count. Thus, it was
found necessary to determine the extent of the error in the ballot printing
process before proceeding with the automated counting.
"To avoid a situation where proceeding with automation will result in
an erroneous count, the TF Head, on or about 11:45 a.m. ordered the
suspension of the counting of all ballots in the province to enable him to call a
meeting with the heads of the political parties which fielded candidates in the
province, inform them of the technical error, and find solutions to the problem.

5. Gubernatorial Candidate Abdusakur Tan

LAKAS-NUCD Tan Wing
6. Gubernatorial Candidate Yusop Jikiri
LAKAS-NUCD-MNLF Wing
7. Gubernatorial Candidate Kimar Tulawie
LAMMP
8. Congressional Candidate Bensaudi Tulawie
LAMMP
"During said meeting, all of the above parties verbally
advanced their respective positions. Those in favor of a manual count
were:
1. Brig. Gen. Edgardo Espinoza
2. Brig. Gen. Percival Subala
3. Provincial Dir. Charlemagne Alejandrino

4. Gubernatorial Candidate Abdusakur Tan

5. Gubernatorial Candidate Kimar Tulawie
6. Congressional Candidate Bensaudi Tulawie

"Other municipalities, such as Siasi, Indanan, Tapul and Jolo also had
the same problem of rejected ballots. However, since the machine operators
were not aware that one of the reasons for rejection of ballots is the use of
wrong "sequence code", they failed to determine whether the cause for
rejection of ballots for said municipalities was the same as that for the
municipality of Talipao.

and those in favor of an automated count were:

1. Gubernatorial Candidate Tupay Loong
2. Gubernatorial Candidate Yusop Jikiri
"Said parties were then requested by the TF Head to submit
their respective position papers so that the same may be forwarded
to the Commission en banc, together with the recommendations of
the TF Head.
"The TF Head returned to the counting center at the Sulu State College
and called his technical staff to determine the extent of the technical error and
to enable him to submit the appropriate recommendation to the Commission
en banc.
"Upon consultation with the technical staff, it was discovered that in
the Municipality of Talipao, some of the local ballots were rejected by the
machine. Verification showed that while the ballots were genuine, ballot paper
bearing a wrong "sequence code" was used by the NPO during the printing
process.
Briefly, the following is the manner by which a "sequence code"
determined genuineness of a ballot. A municipality is assigned a specific
machine (except for Jolo, which was assigned two (2) machines, and sharing
of one (1) machine by two (2) municipalities, namely, H.P. Tahil and
Maimbung, Pandami and K. Caluang, Pata and Tongkil and Panamao and
Lugus). A machine is then assigned a specific "sequence code" as one of the
security features to detect whether the ballots passing through it are genuine.
Since a counting machine is programmed to read the specific "sequence code"
assigned to it, ballots which bear a "sequence code" assigned to another
machine/municipality, even if said ballots were genuine, will be rejected by the
machine.

"In the case of 'misaligned ovals', the counting machine will not reject
the ballot because all the security features, such as "sequence code", are
present in the ballot, however, since the oval is misaligned or not placed in its
proper position, the machine will credit the shaded oval for the position where
the machine is programmed to "read" the oval. Thus, instead of rejecting the
ballot, the machine will credit the votes of a candidate in favor of his
opponent, or in the adjacent space where the oval should be properly placed.
"It could not be determined if the other municipalities also had the
same technical error in their official ballots since the "misaligned ovals" were
discovered only after members of the Board of Election Inspectors of the
Municipality of Pata complained that their votes were not reflected in the
printout of the election returns.
"As the extent or coverage of the technical errors could not be
determined, the TF Head, upon consultation with his technical staff, was of the
belief that it would be more prudent to count the ballots manually than to
proceed with an automated system which will result in an erroneous count.
"The TF Head thus ordered the indefinite suspension of counting of
ballots until such time as the Commission shall have resolved the
petition/position papers to be submitted by the parties. The TF Head and his
staff returned to Camp General Bautista to await the submission of the position
papers of the parties concerned. cdll
"Upon receipt of the position papers of the parties, the TF
Head faxed the same in the evening of May 12, 1998, together with
his handwritten recommendation to proceed with a manual count.
Attached are copies of the recommendations of the TF Head (Annex "1"), and
the position papers of the Philippine Marines and Philippine National Police
(Annex "2"), LAKAS-NUCD Tan Wing Annex (Annex "3"), Lakas-NUCD Loong
Wing (Annex "4"), LAKAS-NUCD-MNLF Wing (Annex "5") and LAMMP (Annex
"6"). Said recommendations and position papers were the bases for the
promulgation of COMELEC Minute Resolution No. 98-1750 dated May 13, 1998
(Annex "7"), directing, among other things, that the ballots and counting

machines be transported by C130 to Manila for both automated and manual

operations.
"Minute Resolution No. 98-1750 was received by the TF Head
through fax on or about 5:30 in the evening of May 13, 1998. Copies
were then served through personal delivery to the heads of the
political parties, with notice to them that another conference will be
conducted at the 3rd Marine Brigade on May 14, 1998 at 9:00 o'clock
in the morning, this time, with Lt. General Joselin Nazareno, then AFP
Commander, Southern Command. Attached is a copy of said notice
(Annex "8") bearing the signatures of candidates Tan (Annex "8-A")
and Loong (Annex "8-B"), and the representatives of candidates
Tulawie (Annex "8-C") and Jikiri (Annex "8-D").

Tolentino, Jr., petitioner Tupay Loong himself submitted the names of his representatives
who would accompany the ballot boxes and other election paraphernalia, viz: 20
"Dear Atty. Tolentino:
"Submitted herewith are the names of escort(s) to accompany the
ballot boxes and other election paraphernalia to be transported to COMELEC,
Manila, to wit:
1 Jolo Joseph Lu
2. Patikul Fathie B. Loong
3. Indanan Dixon Jadi

"On May 14, 1998, the TF Head presided over said conference in the
presence of the heads of the political parties of Sulu, together with their
counsel, including Lt. Gen. Nazareno, Brig. Gen. Subala, representatives of the
NAMFREL, media and the public.
"After hearing the sides of all parties concerned, including that
of NAMFREL, the procedure by which the ballots and counting
machines were to be transported to Manila was finalized, with each
political party authorized to send at least one (1) escort/watcher for
every municipality to accompany the ballot boxes and counting
machines from the counting center at the Sulu State College to the
Sulu Airport up to the PICC, where the COMELEC was then
conducting its Senatorial Canvass. There being four parties, a total of
seventy-two (72) escorts/watchers accompanied the ballots and
counting machines.

4. Siasi Jamal Ismael

5. K. Kaluang Enjimar Abam
6. Pata Marvin Hassan
7. Parang Siyang Loong
8. Pangutaran Hji. Nasser Loong
9. Marunggas Taib Mangkabong
10. Luuk Jun Arbison
11. Pandami Orkan Osman

"Two C130s left Sulu on May 15, 1998 to transport all the
ballot boxes and counting machines, accompanied by all the
authorized escorts. Said ballots boxes reached the PICC on the same
day, with all the escorts/watchers allowed to station themselves at
the ballot box storage area. On May 17, 1998, another C130 left Sulu
to ferry the members of the board of canvassers."

12. Tongkil Usman Sahidulla

13. Tapul Alphawanis Tupay
14. Lugus Patta Alih

Fifth. The evidence is clear that the integrity of the local ballots was safeguarded
when they were transferred from Sulu to Manila and when they were manually counted.

15. Maimbong Mike Bangahan

As shown by the Tolentino memorandum, representatives of the political parties

escorted the transfer of ballots from Sulu to PICC. Indeed, in his May 14, 1992 letter to Atty.

16. P. Estino Yasir Ibba

17. Panamao Hamba Loong

18. Talipao Ismael Sali

'I. Common Provisions:

"Hoping for your kind and (sic) consideration for approval on this
matter.

'1. Open the ballot box, retrieve the Minutes of Voting and the
uncounted ballots or the envelope containing the
counted ballots as the case may be;

Thank you.
'2. Segregate the national ballots from the local ballots;
Very truly yours,
(Sgd.) Tupay T. Loong
(Sgd.) Asani S. Tamang"

'3. Count the number of pieces of both the national and local
ballots and compare the same with the number of
votes who actually voted as stated in the Minutes of
Voting:

The ballot boxes were consistently under the watchful eyes of the parties'
representatives. They were placed in an open space at the PICC. The watchers stationed
themselves some five (5) meters away from the ballot boxes. They watched 24 hours a day
and slept at the PICC. 21

If there is no Minutes of Voting, refer to the Voting Records

at the back of the VRRs to determine the number of
voters who actually voted.

The parties' watchers again accompanied the transfer of the ballot boxes from PICC
to the public schools of Pasay City where the ballots were counted. After the counting, they
once more escorted the return of the ballot boxes to PICC. 22

If there are more ballots than the number of voters who

actually voted, the poll clerk shall draw out as many
local and national ballots as may be equal to the
excess and place them in the envelope for excess
ballots.

In fine, petitioner's charge that the ballots could have been tampered with before the
manual counting is totally unfounded.
Sixth. The evidence also reveals that the result of the manual count is reliable.
It bears stressing that the ballots used in the case at bar were specially made to suit
an automated election. The ballots were uncomplicated. They had fairly large ovals opposite
the names of candidates. A voter needed only to check the oval opposite the name of his
candidate. When the COMELEC ordered a manual count of the votes, it issued special rules
as the counting involved a different kind of ballot, albeit, more simple ballots. The Omnibus
Election Code rules on appreciation of ballots cannot apply for they only apply to elections
where the names of candidates are handwritten in the ballots. The rules were spelled out in
Minute Resolution 98-1798, viz: 23
"In the matter of the Memorandum dated 17 May 1998 of Executive
Director Resurreccion Z. Borra, re procedure of the counting of votes for Sulu
for the convening of the Board of Election Inspectors, the Municipal Board of
Canvassers and the Provincial Board of Canvassers on May 18, 1998 at 9:00
a.m. at the Philippine International Convention Center (PICC),
'RESOLVED to approve the following procedure for the counting of
votes for Sulu at the PICC:

'II. Counting of Votes

'A. National Ballots:
'1. If the national ballots have already been counted, return
the same inside the envelope for counted ballots,
reseal and place the envelope inside the ballot box;
'2. If the national ballots have not yet been counted, place
them inside an envelope and give the envelope
through a liaison officer to the machine operator
concerned for counting and printing of the election
returns;
'3. The machine operator shall affix his signature and
thumbmark thereon, and return the same to the
members of the BEI concerned for their signatures
and thumbmarks;

'4. The said returns shall then be placed in corresponding

envelopes for distribution;

'2. After the consolidation, the Machine Operator shall print the
certificate of canvass by municipality and statement of
votes by precinct.

'B. Local Ballots:

'1. Group the local ballots in piles of fifty (50);
'2. The Chairman shall read the votes while the poll clerk and
the third member shall simultaneously accomplish the
election returns and the tally board respectively.
'If the voters shaded more ovals than the
number of positions to be voted for, no vote
shall be counted in favor of any candidate.

'3. To consolidate the provincial results, the MO shall load all

the diskettes used in the scanner to the ERs;
'4. The MO shall print the provincial certificate of canvass and
the SOV by municipality;
'5. In case there is system failure in the counting and/or
consolidation of the results, the POBC/MOBC shall
revert to manual consolidation.
'B. Local Ballots

'3. After all the local ballots shall have been manually counted,
the same shall be given to the machine operator
concerned for counting by the scanning machine. The
machine operator shall then save the results in a
diskette and print out the election returns for
COMELEC reference.

'1. The consolidation of votes shall be done manually by the

Provincial/Municipal Board of Canvassers;
'2. The proclamation of winning candidates shall be based on
the manual consolidation.

'4. The BEI shall accomplish the certification portion of the

election returns and announce the results;

'RESOLVED, moreover, that the pertinent provisions of

COMELEC Resolution Nos. 2971 and 3030 shall apply.

'5. Place the election returns in their respective envelopes and

distribute them accordingly;

'Let the Executive Director implement this

resolution."'

'6. Return all pertinent election documents and paraphernalia

inside the ballot box.

As aforestated, five (5) Special Boards were initially created under Atty. Tolentino, Jr.
to undertake the manual counting, 24 viz:
"a) Atty. Mamasapunod M. Aguam

'III. Consolidation of Results

'A. National Ballots
'1. The results of the counting for the national ballots for each
municipality shall be consolidated by using the ERs of
the automated election system;

Ms. Gloria Fernandez

Ms. Esperanza Nicolas
b) Director Ester L. Villaflor-Roxas
Ms. Celia Romero
Ms. Rebecca Macaraya

c) Atty. Zenaida S. Soriano

Ms. Jocelyn Guiang
Ma. Jocelyn Tan
d) Atty. Erlinda C. Echavia
Ms. Teresa A. Torralba
Ms. Ma. Carmen Llamas
e) Director Estrella P. de Mesa
Ms. Teresita Velasco
Ms. Nelly Jaena"
Later, the COMELEC utilized the services of 600 public school teachers from Pasay City to do
the manual counting. Five (5) elementary schools served as the venues of the counting, viz:
25
"1. Gotamco Elementary School, Gotamco Street, Pasay City for the
municipalities of Indanan, Pangutaran, Panglima Tahil, Maimbung;
"2. Zamora Elementary School, Zamora Street, Pasay City for the
municipalities of Jolo, Talipao, Panglima Estino, and Tapul;
"3. Epifanio Elementary School, Tramo Street, Pasay City for the
municipalities of Parang, Lugus, Panamao;
"4. Burgos Elementary School, Burgos Street, Pasay City for the
municipalities of Luuk and Tongkil;
"5. Palma Elementary School for the municipalities of Siasi and Kalingalang
Caluang."
From beginning to end, the manual counting was done with the watchers
of the parties concerned in attendance. Thereafter, the certificates of canvass
were prepared and signed by the City/Municipal Board of Canvassers composed of
the Chairman, Vice-Chairman, and Secretary. They were also signed by the
parties' watchers. 26

The correctness of the manual count cannot therefore be doubted. There was no
need for an expert to count the votes. The naked eye could see the check marks opposite
the big ovals. Indeed, nobody complained that the votes could not be read and counted. The
COMELEC representatives had no difficulty counting the votes. The 600 public school
teachers of Pasay City had no difficulty. The watchers of the parties had no difficulty.
Petitioner did not object to the rules on manual count on the ground that the ballots cannot
be manually counted. Indeed, in his original Petition, petitioner did not complain that the
local ballots could not be counted by a layman. Neither did the intervenor complain in his
petition for intervention. The allegation that it will take a trained eye to read the ballots is
more imagined than real.
This is not all. As private respondent Tan alleged, the manual count could not have
been manipulated in his favor because the results show that most of his political opponents
won. Thus, "the official results show that the two congressional seats in Sulu were won by
Congressman Hussin Amin of the LAKAS-MNLF Wing for the 1st District and Congressman
Asani Tammang of the LAKAS-Loong Wing for the 2nd District. In the provincial level, of the
eight (8) seats for the Sangguniang Panlalawigan, two (2) were won by the camp of
respondent Tan; three (3) by the camp of petitioner Loong; two (2) by the MNLF; and one
(1) by LAMMP. In the mayoral race, seven (7) out of eighteen (18) victorious municipal
mayors were identified with respondent Tan; four (4) with petitioner Loong; three (3) with
the MNLF; two (2) with LAMMP and one (1) with REPORMA." 27 There is logic to private
respondent Tan's contention that if the manual count was tampered, his candidates would
not have miserably lost.
Seventh. We further hold that petitioner cannot insist on automated counting under
R.A. No. 8436 after the machines misread or rejected the local ballots in five (5)
municipalities in Sulu. Section 9 of R.A. No. 8436 provides:
"SEC. 9. Systems Breakdown in the Counting Center. In the event of
a systems breakdown of all assigned machines in the counting center, the
Commission shall use any available machine or any component thereof from
another city/municipality upon approval of the Commission En Banc or any of
its divisions. cdtai
The transfer of such machines or any component thereof shall be
undertaken in the presence of representatives of political parties and citizens'
arm of the Commission who shall be notified by the election officer of such
transfer.
There is a systems breakdown in the counting center when the
machine fails to read the ballots or fails to store/save results or fails to print
the results after it has read the ballots; or when the computer fails to

consolidate election results/reports or fails to print election results-reports after

consolidation."
As the facts show, it was inutile for the COMELEC to use other machines to count the local
votes in Sulu. The errors in counting were due to the misprinting of ovals and the use of
wrong sequence codes in the local ballots. The errors were not machine-related. Needless to
state, to grant petitioner's prayer to continue the machine count of the local ballots will
certainly result in an erroneous count and subvert the will of the electorate.
Eighth. In enacting R.A. No. 8436, Congress obviously failed to provide a remedy
where the error in counting is not machine-related for human foresight is not all-seeing. We
hold, however, that the vacuum in the law cannot prevent the COMELEC from levitating
above the problem. Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the
broad power "to enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum and recall." Undoubtedly, the text and intent of this
provision is to give COMELEC all the necessary and incidental powers for it to achieve the
objective of holding free, orderly, honest, peaceful, and credible elections. Congruent to this
intent, this Court has not been niggardly in defining the parameters of powers of COMELEC in
the conduct of our elections. Thus, we held in Sumulong v. COMELEC: 28
"Politics is a practical matter, and political questions must be dealt with
realistically not from the standpoint of pure theory. The Commission on
Elections, because of its fact-finding facilities, its contacts with political
strategists, and its knowledge derived from actual experience in dealing with
political controversies, is in a peculiarly advantageous position to decide
complex political questions . . . . There are no ready made formulas for solving
public problems. Time and experience are necessary to evolve patterns that
will serve the ends of good government. In the matter of the administration of
laws relative to the conduct of election, . . . we must not by any excessive zeal
take away from the Commission on Elections the initiative which by
constitutional and legal mandates properly belongs to it."
In the case at bar, the COMELEC order for a manual count was not only reasonable. It was
the only way to count the decisive local votes in the six (6) municipalities of Pata, Talipao,
Siasi, Tudanan, Tapul and Jolo. The bottom line is that by means of the manual count, the
will of the voters of Sulu was honestly determined. We cannot kick away the will of the
people by giving a literal interpretation to R.A. 8436. R.A. 8436 did not prohibit manual
counting when machine count does not work. Counting is part and parcel of the conduct of
an election which is under the control and supervision of the COMELEC. It ought to be selfevident that the Constitution did not envision a COMELEC that cannot count the result of an
election.

Ninth. Our elections are not conducted under laboratory conditions. In running for
public offices, candidates do not follow the rules of Emily Post. Too often, COMELEC has to
make snap judgments to meet unforeseen circumstances that threaten to subvert the will of
our voters. In the process, the actions of COMELEC may not be impeccable, indeed, may
even be debatable. We cannot, however, engage in a swivel chair criticism of these actions
often taken under very difficult circumstances. Even more, we cannot order a special election
unless demanded by exceptional circumstances. Thus, the plea for this Court to call a special
election for the governorship of Sulu is completely off-line. The plea can only be grounded on
failure of election. Section 6 of the Omnibus Election Code tells us when there is a failure of
election, viz:
"Sec. 6. Failure of Election. If, on account of force majeure,
terrorism, fraud, or other analogous causes, the election in any polling place
has not been held on the date fixed, or had been suspended before the hour
fixed by law for the closing of the voting or after the voting and during the
preparation and the transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect, and in any of such
cases the failure or suspension of election would affect the result of the
election, the Commission shall on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or
continuation of the election, not held, suspended or which resulted in a failure
to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect."

To begin with, the plea for a special election must be addressed to the COMELEC and not to
this Court. Section 6 of the Omnibus Election Code should be read in relation to Section 4 of
R.A. No. 7166 which provides:
"Sec. 4. Postponement, Failure of Election and Special
Elections. The postponement, declaration of failure of elections and the
calling of special elections as provided in Sections 5, 6, and 7 of the Omnibus
Election Code shall be decided by the Commission en banc by a majority vote
of its members. The causes for the declaration of a failure of election may
occur before or after casting of votes or on the day of the election."
The grounds for failure of election force majeure, terrorism, fraud or other analogous
causes clearly involve questions of fact. It is for this reason that they can only be
determined by the COMELEC en banc after due notice and hearing to the parties. In the case
at bar, petitioner never asked the COMELEC en banc to call for a special election in Sulu.
Even in his original petition with this Court, petitioner did not pray for a special election. His

plea for a special election is a mere afterthought. Too late in the day and too unprocedural.
Worse, the grounds for failure of election are inexistent. The records show that the voters of
Sulu were able to cast their votes freely and fairly. Their votes were counted correctly, albeit
manually. The people have spoken. Their sovereign will has to be obeyed.
There is another reason why a special election cannot be ordered by this Court. To
hold a special election only for the position of Governor will be discriminatory and will violate
the right of private respondent to equal protection of the law. The records show that all
elected officials in Sulu have been proclaimed and are now discharging their powers and
duties. Thus, two (2) congressmen, a vice-governor, eight (8) members of the Sangguniang
Panlalawigan and eighteen (18) mayors, numerous vice-mayors and municipal councilors are
now servicing in their official capacities. These officials were proclaimed on the basis of the
same manually counted votes of Sulu. If manual counting is illegal, their assumption of office
cannot also be countenanced. Private respondent's election cannot be singled out as
invalid for alikes cannot be treated unalikes.
A final word. Our decision merely reinforces our collective efforts to endow
COMELEC with enough power to hold free, honest, orderly, and credible elections. A quick
flashback of its history is necessary lest our efforts be lost in the labyrinth of time.
The COMELEC was organized under Commonwealth Act No. 607 enacted on August
22, 1940. The power to enforce election laws was originally vested in the President and
exercised through the Department of Interior. According to Dean Sinco, 29 the view
ultimately emerged that an independent body could better protect the right of suffrage of our
people. Hence, the enforcement of our election laws, while an executive power, was
transferred to the COMELEC.
From a statutory creation, the COMELEC was transformed to a constitutional body by
virtue of the 1940 amendments to the 1935 Constitution which took effect on December 2,
1940. COMELEC was generously granted the power to "have exclusive charge of the
enforcement and administration of all laws relative to the conduct of elections . . . ." 30
Then came the 1973 Constitution. It further broadened the powers of COMELEC by
making it the sole judge of all election contests relating to the election, returns and
qualifications of members of the national legislature and elective provincial and city officials.
31 In fine, the COMELEC was given judicial power aside from its traditional administrative
and executive functions.

"xxx xxx xxx

"The purpose of the Revised Election Code is to protect the integrity of
elections and to suppress all evils that may violate its purity and defeat the will
of the voters. The purity of the elections is one of the most fundamental
requisites of popular government. The Commission on Elections, by
constitutional mandate, must do everything in its power to secure a fair and
honest canvass of the votes cast in the elections. In the performance of its
duties, the Commission must be given a considerable latitude in adopting
means and methods that will insure the accomplishment of the great objective
for which it was created to promote free, orderly, and honest elections. The
choice of means taken by the Commission on Elections, unless they
are clearly illegal or constitute grave abuse of discretion, should not
be interfered with."
In Pacis vs. COMELEC, 34 we reiterated the guiding principle that "clean elections control
the appropriateness of the remedy." The dissent, for all its depth, is out of step with this
movement. It condemns the COMELEC for exercising its discretion to resort to manual count
when this was its only viable alternative. It would set aside the results of the manual count
even when the results are free from fraud and irregularity. Worse, it would set aside the
judgment of the people electing the private respondent as Governor. Upholding the
sovereignty of the people is what democracy is all about. When the sovereignty of
the people expressed thru the ballot is at stake, it is not enough for this Court to
make a statement but it should do everything to have that sovereignty obeyed by
all. Well done is always better than well said. cdrep
IN VIEW WHEREOF, the petition of Tupay Loong and the petition in intervention of
Yusop Jikiri are dismissed, there being no showing that public respondent gravely abused its
discretion in issuing Minute Resolution Nos. 98-1748, 98-1750, 98-1796 and 98-1798. Our
status quo order of June 23, 1998 is lifted. No costs.
SO ORDERED.
||| (Loong v. Commission on Elections, G.R. No. 133676, [April 14, 1999], 365 PHIL 386-443)

The 1987 Constitution quickened this trend of strengthening the COMELEC. Today,
COMELEC enforces and administers all laws and regulations relative to the conduct of
elections, plebiscites, initiatives, referenda and recalls. Election contests involving regional,
provincial and city elective officials are under its exclusive original jurisdiction. All contests
involving elective municipal and barangay officials are under its appellate jurisdiction. 32
Our decisions have been in cadence with the movement towards empowering the
COMELEC in order that it can more effectively perform its duty of safeguarding the sanctity of
our elections. In Cauton vs. COMELEC, 33 we laid down this liberal approach, viz:

EN BANC

[G.R. No. 93054. December 4, 1990.]

Cordillera Regional Assembly Member ALEXANDER P. ORDILLO,
(Banaue), Ifugao Provincial Board Member CORAZON MONTINIG,
(Mayoyao), Former Vice-Mayor MARTIN UDAN (Banaue), Municipal
Councilors MARTIN GANO, (Lagawe), and TEODORO HEWE,
(Hingyon), Barangay Councilman PEDRO W. DULAG (Lamut);
Aguinaldo residents SANDY B. CHANGIWAN, and DONATO TIMAGO;
Lamut resident REY ANTONIO; Kiangan residents ORLANDO
PUGUON, and REYNAND DULDULAO; Lagawe residents TOMAS
KIMAYONG, GREGORIO DANGO, GEORGE B. BAYWONG, and VICENTE
LUNAG; Hingyon residents PABLO M. DULNUAN and CONSTANCIO
GANO; Mayoyao residents PEDRO M. BAOANG, LEONARDO IGADNA,
and MAXIMO IGADNA; and Banaue residents PUMA-A CULHI,
LATAYON BUTTIG, MIGUEL PUMELBAN, ANDRES ORDILLO, FEDERICO
MARIANO, SANDY BINOMNGA, GABRIEL LIMMANG, ROMEO
TONGALI, RUBEN BAHATAN, MHOMDY GABRIEL, and NADRES
GHAMANG, petitioners, vs. THE COMMISSION ON ELECTIONS; The
Honorable FRANKLIN M. DRILON, Secretary of Justice; Hon.
CATALINO MACARAIG, Executive Secretary; The Cabinet Officer for
Regional Development; Hon. GUILLERMO CARAGUE, Secretary of
Budget and Management; and Hon. ROSALINA S. CAJUCOM, OIC,
National Treasurer, respondents.

Ledesma, Saludo & Associates for petitioners.

DECISION

GUTIERREZ, JR., J p:
The question raised in this petition is whether or not the province of Ifugao, being the only
province which voted favorably for the creation of the Cordillera Autonomous Region can, alone,
legally and validly constitute such Region.
The antecedent facts that gave rise to this petition are as follows:
On January 30, 1990, the people of the provinces of Benguet, Mountain Province, Ifugao, Abra
and Kalinga-Apayao and the city of Baguio cast their votes in a plebiscite held pursuant to

Republic Act No. 6766 entitled "An Act Providing for an Organic Act for the Cordillera
Autonomous Region."
The official Commission on Elections (COMELEC) results of the plebiscite showed that the
creation of the Region was approved by a majority of 5,889 votes in only the Ifugao Province and
was overwhelmingly rejected by 148,676 votes in the rest of the provinces and city abovementioned.
Consequently, the COMELEC, on February 14, 1990, issued Resolution No. 2259 stating that the
Organic Act for the Region has been approved and/or ratified by majority of the votes cast only
in the province of Ifugao. On the same date, the Secretary of Justice issued a memorandum for
the President reiterating the COMELEC resolution and provided:
". . . [A]nd considering the proviso in Sec. 13(A) that only the provinces and
city voting favorably shall be included m the CAR, the province of Ifugao being
the only province which voted favorably then, alone, legally and validly
constitutes the CAR." (Rollo, p. 7)
As a result of this, on March 8, 1990, Congress enacted Republic Act No. 6861 setting the
elections in the Cordillera Autonomous Region of Ifugao on the first Monday of March 1991. cdll
Even before the issuance of the COMELEC resolution, the Executive Secretary on February 5,
1990 issued a Memorandum granting authority to wind up the affairs of the Cordillera Executive
Board and the Cordillera Regional Assembly created under Executive Order No. 220.
On March 9, 1990, the petitioner filed a petition with COMELEC to declare the non-ratification of
the Organic Act for the Region. The COMELEC merely noted said petition.
On March 30, 1990, the President issued Administrative Order No. 160 declaring among others
that the Cordillera Executive Board and Cordillera Regional Assembly and all the offices created
under Executive Order No. 220 were abolished in view of the ratification of the Organic Act. cda
The petitioners maintain that there can be no valid Cordillera Autonomous Region in only one
province as the Constitution and Republic Act No. 6766 require that the said Region be composed
of more than one constituent unit.
The petitioners, then, pray that the Court: (1) declare null and void COMELEC resolution No.
2259, the memorandum of the Secretary of Justice, the memorandum of the Executive Secretary,
Administrative Order No. 160, and Republic Act No. 6861 and prohibit and restrain the
respondents from implementing the same and spending public funds for the purpose and (2)
declare Executive Order No. 220 constituting the Cordillera Executive Board and the Cordillera
Regional Assembly and other offices to be still in force and effect until another organic law for

the Autonomous Region shall have been enacted by Congress and the same is duly ratified by
the voters in the constituent units. We treat the Comments of the respondents as an answer and
decide the case.
This petition is meritorious.
The sole province of Ifugao cannot validly constitute the Cordillera Autonomous Region.

"SECTION 2. The Regional Government shall exercise powers and functions

necessary for the proper governance and development of all provinces, cities,
municipalities, and barangay or ili within the Autonomous Region . . ."
From these sections, it can be gleaned that Congress never intended that a single province may
constitute the autonomous region. Otherwise, we would be faced with the absurd situation of
having two sets of officials, a set of provincial officials and another set of regional officials
exercising their executive and legislative powers over exactly the same small area.

It is explicit in Article X, Section 15 of the 1987 Constitution that:

"Section 15. There shall be created autonomous regions in Muslim Mindanao
and in the Cordillera consisting of provinces, cities, municipalities and
geographical areas sharing common and distinctive historical and cultural
heritage, economic and social structures, and other relevant characteristics
within the framework of this Constitution and the national sovereignty as well
as territorial integrity of the Republic of the Philippines." (Emphasis Supplied)
The keywords provinces, cities, municipalities and geographical areas connote that "region" is
to be made up of more than one constituent unit. The term "region" used in its ordinary sense
means two or more provinces. This is supported by the fact that the thirteen (13) regions into
which the Philippines is divided for administrative purposes are groupings of contiguous
provinces. (Integrated Reorganization Plan (1972), which was made as part of the law of the
land by P.D. No. 1; P.D. No. 742) Ifugao is a province by itself. To become part of a region, it
must join other provinces, cities, municipalities, and geographical areas. It joins other units
because of their common and distinctive historical and cultural heritage, economic and social
structures and other relevant characteristics. The Constitutional requirements are not present in
this case. llcd
The well-established rule in statutory construction that the language of the Constitution, as much
as possible should be understood in the sense it has in common use and that the words used in
constitutional provisions are to be given their ordinary meaning except where technical terms are
employed, must then, be applied in this case. (See Baranda v. Gustilo, 165 SCRA 757, 770,
[1988]; J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, 422-423 [1970]).
Aside from the 1987 Constitution, a reading of the provisions of Republic Act No. 6766
strengthens the petitioner's position that the Region cannot be constituted from only one
province.
Article III, Sections 1 and 2 of the Statute provide that the Cordillera Autonomous Region is to be
administered by the Cordillera government consisting of the Regional Government and local
government units. It further provides that:

Article V, Sections 1 and 4 of Republic Act 6766 vest the legislative power in the Cordillera
Assembly whose members shall be elected from regional assembly districts apportioned among
provinces and the cities composing the Autonomous Region. LibLex
If we follow the respondent's position, the members of such Cordillera Assembly shall then be
elected only from the province of Ifugao creating an awkward predicament of having two
legislative bodies the Cordillera Assembly and the Sangguniang Panlalawigan exercising
their legislative powers over the province of Ifugao. And since Ifugao is one of the smallest
provinces in the Philippines, population-wise, it would have too many government officials for so
few people. cdphil
Article XII, Section 10 of the law creates a Regional Planning and Development Board composed
of the Cordillera Governor, all the provincial governors and city mayors or their representatives,
two members of the Cordillera Assembly, and members representing the private sector. The
Board has a counterpart in the provincial level called the Provincial Planning and Development
Coordinator. The Board's functions (Article XII, Section 10, par. 2, Republic Act No. 6766) are
almost similar to those of the Provincial Coordinator's (Title Four, Chapter 3, Article 10, Section
220 (4), Batas Pambansa Blg. 337 Local Government Code). If it takes only one person in the
provincial level to perform such functions while on the other hand it takes an entire Board to
perform almost the same tasks in the regional level, it could only mean that a larger area must
be covered at the regional level. The respondent's theory of the Autonomous Region being made
up of a single province must, therefore, fail.
Article XXI, Section 13 (B) (c) alloting the huge amount of Ten Million Pesos (P10,000,000.00) to
the Regional Government for its initial organizational requirements can not be construed as
funding only a lone and small province.
These sections of Republic Act No. 6766 show that a one province Cordillera Autonomous Region
was never contemplated by the law creating it.
The province of Ifugao makes up only 11% of the total population of the areas enumerated in
Article I, Section 2 (b) of Republic Act No. 6766 which include Benguet, Mountain Province, Abra,
Kalinga-Apayao and Baguio City. It has the second smallest number of inhabitants from among

the provinces and city above mentioned. The Cordillera population is distributed in round figures
as follows: Abra, 185,000; Benguet, 486,000; Ifugao, 149,000; Kalinga-Apayao, 214,000;
Mountain Province, 116,000; and Baguio City, 183,000; Total population of these five provinces
and one city; 1,332,000 according to the 1990 Census (Manila Standard, September 30, 1990, p.
14).

There are other provisions of Republic Act No. 6766 which are either violated or which cannot be
complied with. Section 16 of Article V calls for a Regional Commission on Appointments with the
Speaker as Chairman and are (6) members coming from different provinces and cities in the
Region. Under the respondents' view, the Commission would have a Chairman and only one
member. It would never have a quorum. Section 3 of Article VI calls for cabinet members, as far
as practicable, to come from various provinces and cities of the Region. Section 1 of Article VII
creates a system of tribal courts for the various indigenous cultural communities of the Region.
Section 9 of Article XV requires the development of a common regional language based upon the
various languages and dialects in the region which regional language in turn is expected to enrich
the national language.
The entirety of Republic Act No. 6766 creating the Cordillera Autonomous Region is infused with
provisions which rule against the sole province of Ifugao constituting the Region. prLL
To contemplate the situation envisioned by the respondent would not only violate the letter and
intent of the Constitution and Republic Act No. 6766 but would also be impractical and illogical.
Our decision in Abbas, et al. v. COMELEC, (G.R. No. 89651, November 10, 1969), is not
applicable in the case at bar contrary to the view of the Secretary of Justice.
The Abbas case laid down the rate on the meaning of majority in the phrase "by majority of the
votes cast by the constituent units called for the purpose" found in the Constitution, Article X,
Section 18. It stated:
xxx xxx xxx
". . . [I]t is thus clear that what is required by the Constitution is simple
majority of votes approving the Organic Act in individual constituent units and
not a double majority of the votes in all constituent units put together, as well
as in the individual constituent units."
This was the pronouncement applied by the Secretary of Justice in arriving at his conclusion
stated in his Memorandum for the President that:

xxx xxx xxx

". . . [i]t is believed that the creation of the Cordillera Autonomous Region
(CAR) as mandated by R.A. No. 6766 became effective upon its approval by
the majority of the votes cast in the province of Ifugao. And considering the
proviso in Section 13 (a) that only the provinces and city voting favorably shall
be included in the CAR, the province of Ifugao being the only province which
voted favorably can, alone, legally and validly constitute the CAR." (Rollo. p.
40).
The plebiscites mandated by the Constitution and Republic Act No. 6766 for the Cordillera and
Republic Act No. 6734 for the Autonomous Region in Muslim Mindanao determine (1) whether
there shall be an autonomous region in the Cordillera and in Muslim Mindanao and (2) which
provinces and cities, among those enumerated in the two Republic Acts, shall comprise said
Autonomous Regions. (See III, Record of the Constitutional Commission, 487-492 [1986]).
The Abbas case established the rule to follow on which provinces and cities shall comprise the
autonomous region in Muslim Mindanao which is, consequently, the same rule to follow with
regard to the autonomous region in the Cordillera. However, there is nothing in the Abbas
decision which deals with the issue on whether an autonomous region, in either Muslim Mindanao
or Cordillera could exist despite the fact that only one province or one city is to constitute it.
LibLex
Stated in another way, the issue in this case is whether the sole province of Ifugao can validly
and legally constitute the Cordillera Autonomous Region. The issue is not whether the province of
Ifugao is to be included in the Cordillera Autonomous Region. It is the first issue which the Court
answers in the instant case.
WHEREFORE, the petition is hereby GRANTED. Resolution No. 2259 of the Commission on
Elections, insofar as it upholds the creation of an autonomous region, the February 14, 1990
memorandum of the Secretary of Justice, the February 5, 1990 memorandum of the Executive
Secretary, Administrative Order No. 160, and Republic Act No. 6861 are declared null and void
while Executive Order No. 220 is declared to be still in force and effect until properly repealed or
amended.
SO ORDERED.
||| (Ordillo v. COMELEC, G.R. No. 93054, [December 4, 1990], 270 PHIL 183-192)

EN BANC
[G.R. No. 191988. August 31, 2010.]
ATTY. EVILLO C. PORMENTO, petitioner, vs. JOSEPH "ERAP" EJERCITO
ESTRADA and COMMISSION ON ELECTIONS, respondents.

Private respondent was not elected President the second time he ran. Since the issue on the
proper interpretation of the phrase "any reelection" will be premised on a person's second
(whether immediate or not) election as President, there is no case or controversy to be resolved
in this case. No live conflict of legal rights exists. 6 There is in this case no definite, concrete, real
or substantial controversy that touches on the legal relations of parties having adverse legal
interests. 7 No specific relief may conclusively be decreed upon by this Court in this case that will
benefit any of the parties herein. 8 As such, one of the essential requisites for the exercise of the
power of judicial review, the existence of an actual case or controversy, is sorely lacking in this
case. HSIaAT

RESOLUTION

As a rule, this Court may only adjudicate actual, ongoing controversies. 9 The Court is not
empowered to decide moot questions or abstract propositions, or to declare principles or rules of
law which cannot affect the result as to the thing in issue in the case before it. 10 In other
words, when a case is moot, it becomes non-justiciable. 11

What is the proper interpretation of the following provision of Section 4, Article VII of the
Constitution: "[t]he President shall not be eligible for any reelection?" TADCSE

An action is considered "moot" when it no longer presents a justiciable controversy because the
issues involved have become academic or dead or when the matter in dispute has already been
resolved and hence, one is not entitled to judicial intervention unless the issue is likely to be
raised again between the parties. There is nothing for the court to resolve as the determination
thereof has been overtaken by subsequent events. 12

CORONA, C.J p:

The novelty and complexity of the constitutional issue involved in this case present a temptation
that magistrates, lawyers, legal scholars and law students alike would find hard to resist.
However, prudence dictates that this Court exercise judicial restraint where the issue before it
has already been mooted by subsequent events. More importantly, the constitutional requirement
of the existence of a "case" or an "actual controversy" for they proper exercise of they power of
judicial review constrains us to refuse the allure of making a grand pronouncement that, in the
end, will amount to nothing but a non-binding opinion.
The petition asks whether private respondent Joseph Ejercito Estrada is covered by the ban on
the President from "any reelection." Private respondent was elected President of the Republic of
the Philippines in the general elections held on May 11, 1998. He sought the presidency again in
the general elections held on May 10, 2010. Petitioner Atty. Evillo C. Pormento opposed private
respondent's candidacy and filed a petition for disqualification. However, his petition was denied
by the Second Division of public respondent Commission on Elections (COMELEC). 1 His motion
for reconsideration was subsequently denied by the COMELEC en banc. 2
Petitioner filed the instant petition for certiorari 3 on May 7, 2010. However, under the Rules of
Court, the filing of such petition would not stay the execution of the judgment, final order or
resolution of the COMELEC that is sought to be reviewed. 4 Besides, petitioner did not even pray
for the issuance of a temporary restraining order or writ of preliminary injunction. Hence, private
respondent was able to participate as a candidate for the position of President in the May 10,
2010 elections where he garnered the second highest number of votes. 5

Assuming an actual case or controversy existed prior to the proclamation of a President who has
been duly elected in the May 10, 2010 elections, the same is no longer true today. Following the
results of that elections, private respondent was not elected President for the second time. Thus,
any discussion of his "reelection" will simply be hypothetical and speculative. It will serve no
useful or practical purpose.
Accordingly, the petition is denied due course and is hereby DISMISSED.
SO ORDERED.
||| (Pormento v. Estrada, G.R. No. 191988, [August 31, 2010], 643 PHIL 735-739)

EN BANC
[G.R. No. 133495. September 3, 1998.]
BENJAMIN U. BORJA, JR., petitioner, vs. COMMISSION ON ELECTIONS
and JOSE T. CAPCO, JR., respondents.
SYLLABUS
1. POLITICAL LAW; LOCAL GOVERNMENT; TERM OF OFFICE OF ELECTIVE LOCAL OFFICIALS;
PROHIBITION AGAINST SERVING FOR MORE THAN THREE CONSECUTIVE TERMS; TO BAR THE
ELECTION OF A LOCAL OFFICIAL BECAUSE HE HAS ALREADY SERVED THREE TERMS,
ALTHOUGH THE FIRST AS A RESULT OF SUCCESSION BY OPERATION OF LAW RATHER THAN
ELECTION WOULD BE A VIOLATION OF THE PEOPLE'S RIGHT TO CHOOSE THOSE WHOM THEY
PLEASE TO GOVERN THEM. A fundamental tenet of representative democracy is that the
people should be allowed to choose those whom they please to govern them. To bar the election
of a local official because he has already served three terms, although the first as a result of
succession by operation of law rather than election, would therefore be to violate this principle.
2. ID.; ID.; ID.; ID.; ARTICLE X, SECTION 8 OF THE 1987 CONSTITUTION CONTEMPLATES
SERVICE BY LOCAL OFFICIALS FOR THREE CONSECUTIVE TERMS AS A RESULT OF ELECTION.
Not only historical examination but textual analysis as well supports the ruling of the COMELEC
that Art. X, Section 8 contemplates service by local officials for three consecutive terms as a
result of election. The first sentence speaks of "the term of office of elective local officials" and
bars "such official[s]" from serving for more than three consecutive terms. The second sentence,
in explaining when an elective local official may be deemed to have served his full term of office,
states that "voluntary renunciation of the office for any length of time shall not be considered as
an interruption in the continuity of his service for the full term for which he was elected." The
term served must therefore be one "for which [the official concerned] was elected." The purpose
of this provision is to prevent a circumvention of the limitation on the number of terms an
elective local official may serve. Conversely, if he is not serving a term for which he was elected
because he is simply continuing the service of the official he succeeds, such official cannot be
considered to have fully served the term notwithstanding his voluntary renunciation of office prior
to its expiration. DCcHAa

DECISION

MENDOZA, J p:

This case presents for determination the scope of the constitutional provision barring elective
local officials, with the exception of barangay officials, from serving more than three consecutive
terms. In particular, the question is whether a vice-mayor who succeeds to the office of mayor by
operation of law and serves the remainder of the term is considered to have served a term in
that office for the purpose of the three-term limit. cda
Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18, 1988 for
a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law,
upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor
for a term of three years which ended on June 30, 1995. On May 8, 1995, he was reelected
mayor for another term of three years ending June 30, 1998. 1
On March 27, 1998, private respondent Capco filed a
Pateros relative to the May 11, 1998 elections. Petitioner
candidate for mayor, sought Capco's disqualification on
already served as mayor for three consecutive terms by
ineligible to serve for another term after that. cdtai

certificate of candidacy for mayor of

Benjamin U. Borja, Jr., who was also a
the theory that the latter would have
June 30, 1998 and would therefore be

On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of petitioner
and declared private respondent Capco disqualified from running for reelection as mayor of
Pateros. 2 However, on motion of private respondent, the COMELEC en banc, voting 5-2,
reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998 elections.
3 The majority stated in its decision:
In both the Constitution and the Local Government Code, the three-term
limitation refers to the term of office for which the local official was elected. It
made no reference to succession to an office to which he was not elected. In
the case before the Commission, respondent Capco was not elected to the
position of Mayor in the January 18, 1988 local elections. He succeeded to
such office by operation of law and served for the unexpired term of his
predecessor. Consequently, such succession into office is not counted as one
(1) term for purposes of the computation of the three-term limitation under
the Constitution and the Local Government Code.
Accordingly, private respondent was voted for in the elections. He received 16,558 votes against
petitioner's 7,773 votes and was proclaimed elected by the Municipal Board of Canvassers. Cdpr
This is a petition for certiorari brought to set aside the resolution, dated May 7, 1998, of the
COMELEC and to seek a declaration that private respondent is disqualified to serve another term
as mayor of Pateros, Metro Manila.

Petitioner contends that private respondent Capco's service as mayor from September 2, 1989 to
June 30, 1992 should be considered as service for one full term, and since he thereafter served
from 1992 to 1998 two more terms as mayor, he should be considered to have served three
consecutive terms within the contemplation of Art. X, 8 of the Constitution and 43(b) of the
Local Government Code. Petitioner stresses the fact that, upon the death of Mayor Cesar Borja
on September 2, 1989, private respondent became the mayor and thereafter served the
remainder of the term. Petitioner argues that it is irrelevant that private respondent became
mayor by succession because the purpose of the constitutional provision in limiting the number of
terms elective local officials may serve is to prevent a monopolization of political power.
This contention will not bear analysis. Article X, 8 of the Constitution provides: cda
SEC. 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official
shall serve for more than three consecutive terms. Voluntary renunciation of
the office for any length of time shall not be considered as an interruption in
the continuity of his service for the full term for which he was elected.
This provision is restated in 43(b) of the Local Government Code (R.A. No. 7160):
SEC. 43. Term of Office.
(b) No local elective official shall serve for more than three (3) consecutive
terms in the same position. Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the continuity of service
for the full term for which the elective official concerned was elected. . .
First, to prevent the establishment of political dynasties is not the only policy embodied in the
constitutional provision in question. The other policy is that of enhancing the freedom of choice
of the people. To consider, therefore, only stay in office regardless of how the official concerned
came to that office whether by election or by succession by operation of law would be to
disregard one of the purposes of the constitutional provision in question. Cdpr
Thus, a consideration of the historical background of Art. X, 8 of the Constitution reveals that
the members of the Constitutional Commission were as much concerned with preserving the
freedom of choice of the people as they were with preventing the monopolization of political
power. Indeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia that after
serving three consecutive terms or nine years there should be no further reelection for local and
legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian
Monsod that such officials be simply barred from running for the same position in the succeeding
election following the expiration of the third consecutive term. 4 Monsod warned against
"prescreening candidates [from] whom the people will choose" as a result of the proposed

absolute disqualification, considering that the draft constitution contained provisions "recognizing
people's power." 5
Commissioner Blas F. Ople, who supported the Monsod proposal, said:
The principle involved is really whether this Commission shall impose a
temporary or a perpetual disqualification on those who have served their terms
in accordance with the limits on consecutive service as decided by the
Constitutional Commission. I would be very wary about this Commission
exercising a sort of omnipotent power in order to disqualify those who will
already have served their terms from perpetuating themselves in office. I think
the Commission achieves its purpose in establishing safeguards against the
excessive accumulation of power as a result of consecutive terms. We do put a
cap on consecutive service in the case of the President, six years; in the
case of the Vice-President, unlimited; and in the case of the Senators, one
reelection. In the case of the Members of Congress, both from the legislative
districts and from the party list and sectoral representation, this is now under
discussion and later on the policy concerning local officials will be taken up by
the Committee on Local Governments. The principle remains the same. I think
we want to prevent future situations where, as a result of continuous service
and frequent reelections, officials from the President down to the municipal
mayor tend to develop a proprietary interest in their positions and to
accumulate those powers and perquisites that permit them to stay on
indefinitely or to transfer these posts to members of their families in a
subsequent election. I think that is taken care of because we put a gap on the
continuity or the unbroken service of all of these officials. But where we now
decide to put these prospective servants of the people or politicians, if we want
to use the coarser term, under a perpetual disqualification, I have a feeling
that we are taking away too much from the people, whereas we should be
giving as much to the people as we can in terms of their own freedom of
choice. . . 6

Other commissioners went on record against "perpetually disqualifying" elective officials who
have served a certain number of terms as this would deny the right of the people to choose. As
Commissioner Yusup R. Abubakar asked, "why should we arrogate unto ourselves the right to
decide what the people want?" 7
Commissioner Felicitas S. Aquino spoke in the same vein when she called on her colleagues to
"allow the people to exercise their own sense of proportion and [rely] on their own strength to
curtail power when it overreaches itself." 8

Commissioner Teodoro C. Bacani stressed: "Why should we not leave [perpetual disqualification
after serving a number of terms] to the premise accepted by practically everybody here that our
people are politically mature? Should we use this assumption only when it is convenient for us,
and not when it may also lead to a freedom of choice for the people and for politicians who may
aspire to serve them longer?" 9
Two ideas thus emerge from a consideration of the proceedings of the Constitutional
Commission. The first is the notion of service of term, derived from the concern about the
accumulation of power as a result of a prolonged stay in office. The second is the idea of
election, derived from the concern that the right of the people to choose those whom they wish
to govern them be preserved. LLjur
It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on
the assumption that the officials concerned were serving by reason of election. This is clear from
the following exchange in the Constitutional Commission concerning term limits, now embodied
in Art. VI, 4 and 7 of the Constitution, for members of Congress: cda
MR. GASCON.
I would like to ask a question with regard to the issue after the second
term. We will allow the Senator to rest for a period of time before he
can run again?
MR. DAVIDE.
That is correct.
MR. GASCON.
And the question that we left behind before if the Gentlemen will
remember was: How long will that period of rest be? Will it be one
election which is three years or one term which is six years?
MR. DAVIDE.
If the Gentlemen will remember, Commissioner Rodrigo expressed the
view that during the election following the expiration of the first 12
years, whether such election will be on the third year or on the sixth
year thereafter, this particular member of the Senate can run. So, it is
not really a period of hibernation for six years. That was the
Committee's stand. 10

Indeed, a fundamental tenet of representative democracy is that the people should be allowed to
choose those whom they please to govern them. 11 To bar the election of a local official because
he has already served three terms, although the first as a result of succession by operation of law
rather than election, would therefore be to violate this principle.
Second, not only historical examination but textual analysis as well supports the ruling of the
COMELEC that Art. X, 8 contemplates service by local officials for three consecutive terms as a
result of election. The first sentence speaks of "the term of office of elective local officials" and
bars "such official[s]" from serving for more than three consecutive terms. The second sentence,
in explaining when an elective local official may be deemed to have served his full term of office,
states that "voluntary renunciation of the office for any length of time shall not be considered as
an interruption in the continuity of his service for the full term for which he was elected." The
term served must therefore be one "for which [the official concerned] was elected." The purpose
of this provision is to prevent a circumvention of the limitation on the number of terms an
elective local official may serve. Conversely, if he is not serving a term for which he was elected
because he is simply continuing the service of the official he succeeds, such official cannot be
considered to have fully served the term notwithstanding his voluntary renunciation of office prior
to its expiration. cdasia
Reference is made to Commissioner Bernas' comment on Art. VI, 7, which similarly bars
members of the House of Representatives from serving for more than three terms. Commissioner
Bernas states that "if one is elected Representative to serve the unexpired term of another, that
unexpired term, no matter how short, will be considered one term for the purpose of computing
the number of successive terms allowed." 12
This is actually based on the opinion expressed by Commissioner Davide in answer to a query of
Commissioner Suarez: "For example, a special election is called for a Senator, and the Senator
newly elected would have to serve the unexpired portion of the term. Would that mean that
serving the unexpired portion of the term is already considered one term? So, half a term, which
is actually the correct statement, plus one term would disqualify the Senator concerned from
running? Is that the meaning of this provision on disqualification, Madam President?"
Commissioner Davide said: "Yes, because we speak of "term," and if there is a special election,
he will serve only for the unexpired portion of that particular term plus one more term for the
Senator and two more terms for the Members of the Lower House." 13
There is a difference, however, between the case of a vice-mayor and that of a member of the
House of Representatives who succeeds another who dies, resigns, becomes incapacitated, or is
removed from office. The vice-mayor succeeds to the mayorship by operation of law." 14 On the
other hand, the Representative is elected to fill the vacancy. 15 In a real sense, therefore, such
Representative serves a term for which he was elected. As the purpose of the constitutional
provision is to limit the right to be elected and to serve in Congress, his service of the unexpired
term is rightly counted as his first term. Rather than refute what we believe to be the intendment

of Art. X, 8 with regard to elective local officials, the case of a Representative who succeeds
another confirms the theory. LexLib
Petitioner also cites Art. VII, 4 of the Constitution which provides for succession of the VicePresident to the Presidency in case of vacancy in that office. After stating that "The President
shall not be eligible for any reelection," this provision says that "No person who has succeeded as
President and has served as such for more than four years shall be qualified for election to the
same office at any time." Petitioner contends that, by analogy, the vice-mayor should likewise be
considered to have served a full term as mayor if he succeeds to the latter's office and serves for
the remainder of the term.
The framers of the Constitution included such a provision because, without it, the Vice-President,
who simply steps into the Presidency by succession, would be qualified to run for President even
if he has occupied that office for more than four years. The absence of a similar provision in Art.
X, 8 on elective local officials throws in bold relief the difference between the two cases. It
underscores the constitutional intent to cover only the terms of office to which one may have
been elected for purposes of the three-term limit on local elective officials, disregarding for this
purpose service by automatic succession.
There is another reason why the Vice-President who succeeds to the Presidency and serves in
that office for more than four years is ineligible for election as President. The Vice-President is
elected primarily to succeed the President in the event of the latter's death, permanent disability,
removal, or resignation. While he may be appointed to the cabinet, his becoming so is entirely
dependent on the good graces of the President. In running for Vice-President, he may thus be
said to also seek the Presidency. For their part, the electors likewise choose as Vice-President the
candidate who they think can fill the Presidency in the event it becomes vacant. Hence, service in
the Presidency for more than four years may rightly be considered as service for a full term. prcd
This is not so in the case of the vice-mayor. Under the Local Government Code, he is the
presiding officer of the sanggunian and he appoints all officials and employees of such local
assembly. He has distinct powers and functions, succession to mayorship in the event of vacancy
therein being only one of them. 16 It cannot be said of him, as much as of the Vice-President in
the event of a vacancy in the Presidency, that, in running for vice-mayor, he also seeks the
mayorship. His assumption of the mayorship in the event of vacancy is more a matter of chance
than of design. Hence, his service in that office should not be counted in the application of any
term limit.
To recapitulate, the term limit for elective local officials must be taken to refer to the right to be
elected as well as the right to serve in the same elective position. Consequently, it is not enough
that an individual has served three consecutive terms in an elective local office, he must also
have been elected to the same position for the same number of times before the disqualification
can apply. This point can be made clearer by considering the following cases or situations:

Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the

death of the incumbent. Six months before the next election, he resigns and is
twice elected thereafter. Can he run again for mayor in the next election?
Yes, because although he has already first served as mayor by succession and
subsequently resigned from office before the full term expired, he has not
actually served three full terms in all for the purpose of applying the term limit.
Under Art. X, 8, voluntary renunciation of the office is not considered as an
interruption in the continuity of his service for the full term only if the term is
one "for which he was elected." Since A is only completing the service of the
term for which the deceased and not he was elected, A cannot be considered
to have completed one term. His resignation constitutes an interruption of the
full term.

Case No. 2. Suppose B is elected mayor and, during his first term, he is twice
suspended for misconduct for a total of 1 year. If he is twice reelected after
that, can he run for one more term in the next election?
Yes, because he has served only two full terms successively.
In both cases, the mayor is entitled to run for reelection because the two conditions for the
application of the disqualification provisions have not concurred, namely, that the local official
concerned has been elected three consecutive times and that he has fully served three
consecutive terms. In the first case, even if the local official is considered to have served three
full terms notwithstanding his resignation before the end of the first term, the fact remains that
he has not been elected three times. In the second case, the local official has been elected three
consecutive times, but he has not fully served three consecutive terms. LibLex

Case No. 3. The case of vice-mayor C who becomes mayor by succession

involves a total failure of the two conditions to concur for the purpose of
applying Art. X, 8. Suppose he is twice elected after that term, is he qualified
to run again in the next election?
Yes, because he was not elected to the office of mayor in the first term but
simply found himself thrust into it by operation of law. Neither had he served
the full term because he only continued the service, interrupted by the death,
of the deceased mayor.
To consider C in the third case to have served the first term in full and therefore ineligible to run
a third time for reelection would be not only to falsify reality but also to unduly restrict the right

of the people to choose whom they wish to govern them. If the vice-mayor turns out to be a bad
mayor, the people can remedy the situation by simply not reelecting him for another term. But if,
on the other hand, he proves to be a good mayor, there will be no way the people can return
him to office (even if it is just the third time he is standing for reelection) if his service of the first
term is counted as one for the purpose of applying the term limit.
To consider C as eligible for reelection would be in accord with the understanding of the
Constitutional Commission that while the people should be protected from the evils that a
monopoly of political power may bring about, care should be taken that their freedom of choice is
not unduly curtailed. LLjur
WHEREFORE, the petition is DISMISSED.

EN BANC
[G.R. No. 161434. March 3, 2004]
MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners, vs. The COMMISSION
ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a. FERNANDO POE, JR.) and VICTORINO X.
FORNIER, respondents.
[G.R. No. 161634. March 3, 2004]
ZOILO ANTONIO VELEZ, petitioner, vs. RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE, JR.,
respondent.

SO ORDERED.
||| (Borja, Jr. v. Commission on Elections, G.R. No. 133495, [September 3, 1998], 356 PHIL 467-

480)

[G. R. No. 161824. March 3, 2004]

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

On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr.
(hereinafter "FPJ"), filed his certificate of candidacy for the position of President of the Republic
of the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the forthcoming
national elections. In his certificate of candidacy, FPJ, representing himself to be a natural-born
citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his date of
birth to be 20 August 1939 and his place of birth to be Manila.

Province of Pangasinan, in the name of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No.
20643, No. 23477 and No. 23478 in the name of Lorenzo Pou, f) a copy of the certificate of
death of Lorenzo Pou, g) a copy of the purported marriage contract between Fernando Pou and
Bessie Kelley, and h) a certification issued by the City Civil Registrar of San Carlos City,
Pangasinan, stating that the records of birth in the said office during the period of from 1900
until May 1946 were totally destroyed during World War II.

Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner,
versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe,
Jr., Respondents," initiated, on 09 January 2004, a petition docketed SPA No. 04-003 before the
Commission on Elections ("COMELEC") to disqualify FPJ and to deny due course or to cancel his
certificate of candidacy upon the thesis that FPJ made a material misrepresentation in his
certificate of candidacy by claiming to be a natural-born Filipino citizen when in truth, according
to Fornier, his parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his
father, Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish subject.
Granting, petitioner asseverated, that Allan F. Poe was a Filipino citizen, he could not have
transmitted his Filipino citizenship to FPJ, the latter being an illegitimate child of an alien mother.
Petitioner based the allegation of the illegitimate birth of respondent on two assertions - first,
Allan F. Poe contracted a prior marriage to a certain Paulita Gomez before his marriage to Bessie
Kelley and, second, even if no such prior marriage had existed, Allan F. Poe, married Bessie Kelly
only a year after the birth of respondent.

On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit. Three days later,
or on 26 January 2004, Fornier filed his motion for reconsideration. The motion was denied on 06
February 2004 by the COMELEC en banc. On 10 February 2004, petitioner assailed the decision
of the COMELEC before this Court conformably with Rule 64, in relation to Rule 65, of the
Revised Rules of Civil Procedure. The petition, docketed G. R. No. 161824, likewise prayed for a
temporary restraining order, a writ of preliminary injunction or any other resolution that would
stay the finality and/or execution of the COMELEC resolutions.

In the hearing before the Third Division of the COMELEC on 19 January 2004, petitioner, in
support of his claim, presented several documentary exhibits - 1) a copy of the certificate of birth
of FPJ, 2) a certified photocopy of an affidavit executed in Spanish by Paulita Poe y Gomez
attesting to her having filed a case for bigamy and concubinage against the father of respondent,
Allan F. Poe, after discovering his bigamous relationship with Bessie Kelley, 3) an English
translation of the affidavit aforesaid, 4) a certified photocopy of the certificate of birth of Allan F.
Poe, 5) a certification issued by the Director of the Records Management and Archives Office,
attesting to the fact that there was no record in the National Archives that a Lorenzo Poe or
Lorenzo Pou resided or entered the Philippines before 1907, and 6) a certification from the
Officer-In-Charge of the Archives Division of the National Archives to the effect that no available
information could be found in the files of the National Archives regarding the birth of Allan F.
Poe.
On his part, respondent, presented twenty-two documentary pieces of evidence, the more
significant ones being - a) a certification issued by Estrella M. Domingo of the Archives Division of
the National Archives that there appeared to be no available information regarding the birth of
Allan F. Poe in the registry of births for San Carlos, Pangasinan, b) a certification issued by the
Officer-In-Charge of the Archives Division of the National Archives that no available information
about the marriage of Allan F. Poe and Paulita Gomez could be found, c) a certificate of birth of
Ronald Allan Poe, d) Original Certificate of Title No. P-2247 of the Registry of Deeds for the

The other petitions, later consolidated with G. R. No. 161824, would include G. R. No. 161434,
entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The Commission on Elections,
Ronald Allan Kelley Poe (a.k.a. Fernando Poe, Jr.), and Victorino X. Fornier," and the other,
docketed G. R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald Allan Kelley Poe, a.k.a.
Fernando Poe, Jr.," both challenging the jurisdiction of the COMELEC and asserting that, under
Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had original
and exclusive jurisdiction to resolve the basic issue on the case.
Jurisdiction of the Court
In G. R. No. 161824
In seeking the disqualification of the candidacy of FPJ and to have the COMELEC deny due course
to or cancel FPJs certificate of candidacy for alleged misrepresentation of a material fact (i.e.,
that FPJ was a natural-born citizen) before the COMELEC, petitioner Fornier invoked Section 78 of
the Omnibus Election Code
Section 78. Petition to deny due course to or cancel a certificate of candidacy. --- A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any
person exclusively on the ground that any material representation contained therein as required
under Section 74 hereof is false
in consonance with the general powers of COMELEC expressed in Section 52 of the Omnibus
Election Code Section 52. Powers and functions of the Commission on Elections. In addition to the powers and
functions conferred upon it by the Constitution, the Commission shall have exclusive charge of

the enforcement and administration of all laws relative to the conduct of elections for the
purpose of ensuring free, orderly and honest elections -

Supreme Court to instead take on the petitions they directly instituted before it. The
Constitutional provision cited reads:

and in relation to Article 69 of the Omnibus Election Code which would authorize "any interested
party" to file a verified petition to deny or cancel the certificate of candidacy of any nuisance
candidate.

"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."

Decisions of the COMELEC on disqualification cases may be reviewed by the Supreme Court per
Rule 642[2] in an action for certiorari under Rule 653[3] of the Revised Rules of Civil Procedure.
Section 7, Article IX, of the 1987 Constitution also reads

The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973
Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential
contests, has constrained this Court to declare, in Lopez vs. Roxas,4[4] as not (being) justiciable
controversies or disputes involving contests on the elections, returns and qualifications of the
President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to
enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal

"Each Commission shall decide by a majority vote of all its Members any case or matter brought
before it within sixty days from the date of its submission for decision or resolution. A case or
matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief,
or memorandum, required by the rules of the Commission or by the Commission itself. Unless
otherwise provided by this Constitution or by law, any decision, order, or ruling of each
Commission may be brought to the Supreme Court on certiorari by the aggrieved party within
thirty days from receipt of a copy thereof."
Additionally, Section 1, Article VIII, of the same Constitution provides that judicial power is
vested in one Supreme Court and in such lower courts as may be established by law which power
includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly elevated to, and
could well be taken cognizance of by, this Court. A contrary view could be a gross denial to our
people of their fundamental right to be fully informed, and to make a proper choice, on who
could or should be elected to occupy the highest government post in the land.
In G. R. No. 161434 and G. R. No. 161634
Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634, invoke the
provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the
jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the

to Try, Hear and Decide Protests Contesting the Election of the President-Elect and the VicePresident-Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic
Act 1793 designated the Chief Justice and the Associate Justices of the Supreme Court to be the
members of the tribunal. Although the subsequent adoption of the parliamentary form of
government under the 1973 Constitution might have implicitly affected Republic Act No. 1793,
the statutory set-up, nonetheless, would now be deemed revived under the present Section 4,
paragraph 7, of the 1987 Constitution.
Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election
contests consist of either an election protest or a quo warranto which, although two distinct
remedies, would have one objective in view, i.e., to dislodge the winning candidate from office. A
perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential
Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992, would support
this premise Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President of the Philippines.
Rule 13. How Initiated. - An election contest is initiated by the filing of an election protest or a
petition for quo warranto against the President or Vice-President. An election protest shall not
include a petition for quo warranto. A petition for quo warranto shall not include an election
protest.
Rule 14. Election Protest. - Only the registered candidate for President or for Vice-President of
the Philippines who received the second or third highest number of votes may contest the
election of the President or the Vice-President, as the case may be, by filing a verified petition

with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the proclamation
of the winner.

active in public life and fundamentally willing to submit his private interests to the general
interest of society.

The rules categorically speak of the jurisdiction of the tribunal over contests relating to the
election, returns and qualifications of the "President" or "Vice-President", of the Philippines, and
not of "candidates" for President or Vice-President. A quo warranto proceeding is generally
defined as being an action against a person who usurps, intrudes into, or unlawfully holds or
exercises a public office.5[5] In such context, the election contest can only contemplate a postelection scenario. In Rule 14, only a registered candidate who would have received either the
second or third highest number of votes could file an election protest. This rule again
presupposes a post-election scenario.

The concept of citizenship had undergone changes over the centuries. In the 18th century, the
concept was limited, by and large, to civil citizenship, which established the rights necessary for
individual freedom, such as rights to property, personal liberty and justice.9[9] Its meaning
expanded during the 19th century to include political citizenship, which encompassed the right to
participate in the exercise of political power.10[10] The 20th century saw the next stage of the
development of social citizenship, which laid emphasis on the right of the citizen to economic
well-being and social security.11[11] The idea of citizenship has gained expression in the modern
welfare state as it so developed in Western Europe. An ongoing and final stage of development,
in keeping with the rapidly shrinking global village, might well be the internationalization of
citizenship.12[12]

It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph
7, of the 1987 Constitution, would not include cases directly brought before it, questioning the
qualifications of a candidate for the presidency or vice-presidency before the elections are held.
Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs. Commission on
Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio Velez vs. Ronald Allan Kelley Poe
a.k.a. Fernando Poe, Jr." would have to be dismissed for want of jurisdiction.
The Citizenship Issue
Now, to the basic issue; it should be helpful to first give a brief historical background on the
concept of citizenship.
Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime in
384 to 322 B.C., described the "citizen" to refer to a man who shared in the administration of
justice and in the holding of an office.6[6] Aristotle saw its significance if only to determine the
constituency of the "State," which he described as being composed of such persons who would
be adequate in number to achieve a self-sufficient existence.7[7] The concept grew to include
one who would both govern and be governed, for which qualifications like autonomy, judgment
and loyalty could be expected. Citizenship was seen to deal with rights and entitlements, on the
one hand, and with concomitant obligations, on the other.8[8] In its ideal setting, a citizen was

The Local Setting - from Spanish

Times to the Present
There was no such term as "Philippine citizens" during the Spanish regime but "subjects of Spain"
or "Spanish subjects."13[13] In church records, the natives were called 'indios', denoting a low
regard for the inhabitants of the archipelago. Spanish laws on citizenship became highly codified
during the 19th century but their sheer number made it difficult to point to one comprehensive
law. Not all of these citizenship laws of Spain however, were made to apply to the Philippine
Islands except for those explicitly extended by Royal Decrees.14[14]
Spanish laws on citizenship were traced back to the Novisima Recopilacion, promulgated in Spain
on 16 July 1805 but as to whether the law was extended to the Philippines remained to be the
subject of differing views among experts;15[15] however, three royal decrees were undisputably
made applicable to Spaniards in the Philippines - the Order de la Regencia of 14 August

1841,16[16] the Royal Decree of 23 August 1868 specifically defining the political status of
children born in the Philippine Islands,17[17] and finally, the Ley Extranjera de Ultramar of 04
July 1870, which was expressly made applicable to the Philippines by the Royal Decree of 13 July
1870.18[18]
The Spanish Constitution of 1876 was never extended to the Philippine Islands because of the
express mandate of its Article 89, according to which the provisions of the Ultramar among which
this country was included, would be governed by special laws.19[19]
It was only the Civil Code of Spain, made effective in this jurisdiction on 18 December 1889,
which came out with the first categorical enumeration of who were Spanish citizens. -

"Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the
present treaty relinquishes or cedes her sovereignty may remain in such territory or may remove
therefrom, retaining in either event all their rights of property, including the right to sell or
dispose of such property or of its proceeds; and they shall also have the right to carry on their
industry, commerce, and professions, being subject in respect thereof to such laws as are
applicable to foreigners. In case they remain in the territory they may preserve their allegiance to
the Crown of Spain by making, before a court of record, within a year from the date of the
exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance;
in default of which declaration they shall be held to have renounced it and to have adopted the
nationality of the territory in which they reside.
Thus

(a)

Persons born in Spanish territory,

(b)

Children of a Spanish father or mother, even if they were born outside of Spain,

(c)

Foreigners who have obtained naturalization papers,

(d)

Those who, without such papers, may have become domiciled inhabitants of any
town of the Monarchy.20[20]

The year 1898 was another turning point in Philippine history. Already in the state of decline as a
superpower, Spain was forced to so cede her sole colony in the East to an upcoming world
power, the United States. An accepted principle of international law dictated that a change in
sovereignty, while resulting in an abrogation of all political laws then in force, would have no
effect on civil laws, which would remain virtually intact.

"The civil rights and political status of the native inhabitants of the territories hereby ceded to the
United States shall be determined by the Congress."22[22]
Upon the ratification of the treaty, and pending legislation by the United States Congress on the
subject, the native inhabitants of the Philippines ceased to be Spanish subjects. Although they
did not become American citizens, they, however, also ceased to be "aliens" under American laws
and were thus issued passports describing them to be citizens of the Philippines entitled to the
protection of the United States.
The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of
1902, also commonly referred to as the Philippine Organic Act of 1902, the first comprehensive
legislation of the Congress of the United States on the Philippines ".... that all inhabitants of the Philippine Islands continuing to reside therein, who were Spanish

The Treaty of Paris was entered into on 10 December 1898 between Spain and the United
States.21[21] Under Article IX of the treaty, the civil rights and political status of the native
inhabitants of the territories ceded to the United States would be determined by its Congress -

subjects on the 11th day of April, 1891, and then resided in said Islands, and their children born
subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as
such entitled to the protection of the United States, except such as shall have elected to preserve
their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace
between the United States and Spain, signed at Paris, December tenth eighteen hundred and
ninety eight."23[23]
Under the organic act, a citizen of the Philippines was one who was an inhabitant of the
Philippines, and a Spanish subject on the 11th day of April 1899. The term inhabitant was taken

to include 1) a native-born inhabitant, 2) an inhabitant who was a native of Peninsular Spain, and
3) an inhabitant who obtained Spanish papers on or before 11 April 1899.24[24]
Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01
July 1902, during which period no citizenship law was extant in the Philippines. Weight was given
to the view, articulated in jurisprudential writing at the time, that the common law principle of jus
soli, otherwise also known as the principle of territoriality, operative in the United States and
England, governed those born in the Philippine Archipelago within that period.25[25] More about
this later.
In 23 March 1912, the Congress of the United States made the following amendment to the
Philippine Bill of 1902 "Provided, That the Philippine Legislature is hereby authorized to provide by law for the
acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come
within the foregoing provisions, the natives of other insular possession of the United States, and
such other persons residing in the Philippine Islands who would become citizens of the United
States, under the laws of the United States, if residing therein."26[26]
With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the
first time crystallized. The word "Filipino" was used by William H. Taft, the first Civil Governor
General in the Philippines when he initially made mention of it in his slogan, "The Philippines for
the Filipinos." In 1916, the Philippine Autonomy Act, also known as the Jones Law restated
virtually the provisions of the Philippine Bill of 1902, as so amended by the Act of Congress in
1912 That all inhabitants of the Philippine Islands who were Spanish subjects on the

eleventh day of April, eighteen hundred and ninety-nine, and then resided in said
Islands, and their children born subsequently thereto, shall be deemed and held to be
citizens of the Philippine Islands, except such as shall have elected to preserve their
allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace
between the United States and Spain, signed at Paris December tenth, eighteen hundred and
ninety-eight and except such others as have since become citizens of some other country;
Provided, That the Philippine Legislature, herein provided for, is hereby authorized to provide for
the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not
come within the foregoing provisions, the natives of the insular possessions of the United States,

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

Those whose fathers are citizens of the Philippines.

(4)
Those whose mothers are citizens of the Philippines and upon reaching the age of
majority, elect Philippine citizenship.
(5)

Those who are naturalized in accordance with law.

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

Those who are citizens of the Philippines at the time of the adoption of this Constitution.

(2)

Those whose fathers or mothers are citizens of the Philippines.

(3)
Those who elect Philippine citizenship pursuant to the provisions of the Constitution of
nineteen hundred and thirty-five.
(4)

Those who are naturalized in accordance with law.

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

Those who are citizens of the Philippines at the time of the adoption of this Constitution.

(2)

Those whose fathers or mothers are citizens of the Philippines.

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

Those who are naturalized in accordance with law.

The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of
the 1935 Constitution. Through its history, four modes of acquiring citizenship - naturalization,
jus soli, res judicata and jus sanguinis28[28] had been in vogue. Only two, i.e., jus soli and jus
sanguinis, could qualify a person to being a natural-born citizen of the Philippines. Jus soli, per
Roa vs. Collector of Customs29[29] (1912), did not last long. With the adoption of the 1935
Constitution and the reversal of Roa in Tan Chong vs. Secretary of Labor30[30] (1947), jus
sanguinis or blood relationship would now become the primary basis of citizenship by birth.
Documentary evidence adduced by petitioner would tend to indicate that the earliest established
direct ascendant of FPJ was his paternal grandfather Lorenzo Pou, married to Marta Reyes, the
father of Allan F. Poe. While the record of birth of Lorenzo Pou had not been presented in
evidence, his death certificate, however, identified him to be a Filipino, a resident of San Carlos,
Pangasinan, and 84 years old at the time of his death on 11 September 1954. The certificate of
birth of the father of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Espaol
father, Lorenzo Pou, and a mestiza Espaol mother, Marta Reyes. Introduced by petitioner was an
uncertified copy of a supposed certificate of the alleged marriage of Allan F. Poe and Paulita
Gomez on 05 July 1936. The marriage certificate of Allan F. Poe and Bessie Kelley reflected the
date of their marriage to be on 16 September 1940. In the same certificate, Allan F. Poe was
stated to be twenty-five years old, unmarried, and a Filipino citizen, and Bessie Kelley to be
twenty-two years old, unmarried, and an American citizen. The birth certificate of FPJ, would
disclose that he was born on 20 August 1939 to Allan F. Poe, a Filipino, twenty-four years old,
married to Bessie Kelly, an American citizen, twenty-one years old and married.
Considering the reservations made by the parties on the veracity of some of the entries on the
birth certificate of respondent and the marriage certificate of his parents, the only conclusions
that could be drawn with some degree of certainty from the documents would be that -

The Case Of FPJ

1.

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

Section 2, Article VII, of the 1987 Constitution expresses:

2.

FPJ was born to them on 20 August 1939;

"No person may be elected President unless he is a natural-born citizen of the Philippines, a
registered voter, able to read and write, at least forty years of age on the day of the election,
and a resident of the Philippines for at least ten years immediately preceding such election."

3.

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

4.

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

The term "natural-born citizens," is defined to include "those who are citizens of the Philippines
from birth without having to perform any act to acquire or perfect their Philippine
citizenship."27[27]

5.

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

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

most such statements, and 4) the publicity of record which makes more likely the prior exposure
of such errors as might have occurred.31[31]
The death certificate of Lorenzo Pou would indicate that he died on 11 September 1954, at the
age of 84 years, in San Carlos, Pangasinan. It could thus be assumed that Lorenzo Pou was born
sometime in the year 1870 when the Philippines was still a colony of Spain. Petitioner would
argue that Lorenzo Pou was not in the Philippines during the crucial period of from 1898 to 1902
considering that there was no existing record about such fact in the Records Management and
Archives Office. Petitioner, however, likewise failed to show that Lorenzo Pou was at any other
place during the same period. In his death certificate, the residence of Lorenzo Pou was stated to
be San Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be sound to
conclude, or at least to presume, that the place of residence of a person at the time of his death
was also his residence before death. It would be extremely doubtful if the Records Management
and Archives Office would have had complete records of all residents of the Philippines from 1898
to 1902.
Proof of Paternity and Filiation
Under Civil Law.

Section 3, Rule 130, Rules of Court states that Original document must be produced; exceptions. - When the subject of inquiry is the contents of
a document, no evidence shall be admissible other than the original document itself, except in
the following cases:
xxx

xxx

xxx

(d)
When the original is a public record in the custody of a public office or is recorded in a
public office.
Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F.
Poe and Bessie Kelly, and the birth certificate of FPJ, constitute prima facie proof of their
contents. Section 44, Rule 130, of the Rules of Court provides:

Entries in official records. Entries in official records made in the performance of his duty by a
public officer of the Philippines, or by a person in the performance of a duty specially enjoined by
law, are prima facie evidence of the facts therein stated.
The trustworthiness of public documents and the value given to the entries made therein could
be grounded on 1) the sense of official duty in the preparation of the statement made, 2) the
penalty which is usually affixed to a breach of that duty, 3) the routine and disinterested origin of

Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the child
to the father [or mother]) or paternity (relationship or civil status of the father to the child) of an
illegitimate child, FPJ evidently being an illegitimate son according to petitioner, the mandatory
rules under civil law must be used.
Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up
until the day prior to 30 August 1950 when the Civil Code of the Philippines took effect,
acknowledgment was required to establish filiation or paternity. Acknowledgment was either
judicial (compulsory) or voluntary. Judicial or compulsory acknowledgment was possible only if
done during the lifetime of the putative parent; voluntary acknowledgment could only be had in a
record of birth, a will, or a public document.32[32] Complementary to the new code was Act No.
3753 or the Civil Registry Law expressing in Section 5 thereof, that In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the
parents of the infant or only by the mother if the father refuses. In the latter case, it shall not be
permissible to state or reveal in the document the name of the father who refuses to
acknowledge the child, or to give therein any information by which such father could be
identified.

In order that the birth certificate could then be utilized to prove voluntary acknowledgment of
filiation or paternity, the certificate was required to be signed or sworn to by the father. The
failure of such requirement rendered the same useless as being an authoritative document of
recognition.33[33] In Mendoza vs. Mella,34[34] the Court ruled -

Unlike an action to claim legitimacy which would last during the lifetime of the child, and might
pass exceptionally to the heirs of the child, an action to claim acknowledgment, however, could
only be brought during the lifetime of the presumed parent.

Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic writing," so as to
"Since Rodolfo was born in 1935, after the registry law was enacted, the question here really is
whether or not his birth certificate (Exhibit 1), which is merely a certified copy of the registry
record, may be relied upon as sufficient proof of his having been voluntarily recognized. No such
reliance, in our judgment, may be placed upon it. While it contains the names of both parents,
there is no showing that they signed the original, let alone swore to its contents as required in
Section 5 of Act No. 3753. For all that might have happened, it was not even they or either of
them who furnished the data to be entered in the civil register. Petitioners say that in any event
the birth certificate is in the nature of a public document wherein voluntary recognition of a
natural child may also be made, according to the same Article 131. True enough, but in such a
case, there must be a clear statement in the document that the parent recognizes the child as his
or her own."

be an authentic writing for purposes of voluntary recognition, simply as being a genuine or

indubitable writing of the father. The term would include a public instrument (one duly
acknowledged before a notary public or other competent official) or a private writing admitted by
the father to be his.

In the birth certificate of respondent FPJ, presented by both parties, nowhere in the document
was the signature of Allan F. Poe found. There being no will apparently executed, or at least
shown to have been executed, by decedent Allan F. Poe, the only other proof of voluntary
recognition remained to be "some other public document." In Pareja vs. Pareja,35[35] this Court
defined what could constitute such a document as proof of voluntary acknowledgment:

(2)
An admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned.

"Under the Spanish Civil Code there are two classes of public documents, those executed by
private individuals which must be authenticated by notaries , and those issued by
competent public officials by reason of their office. The public document pointed out in Article
131 as one of the means by which recognition may be made belongs to the first class."
Let us leave it at that for the moment.
The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate children into
voluntary, legal or compulsory. Voluntary recognition was required to be expressedly made in a
record of birth, a will, a statement before a court of record or in any authentic writing. Legal
acknowledgment took place in favor of full blood brothers and sisters of an illegitimate child who
was recognized or judicially declared as natural. Compulsory acknowledgment could be
demanded generally in cases when the child had in his favor any evidence to prove filiation.

The Family Code has further liberalized the rules; Article 172, Article 173, and Article 175
provide:
Art. 172.
(1)

The filiation of legitimate children is established by any of the following:

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

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1)

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

(2)

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

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

xxx

x x x.

Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the
same, evidence as legitimate children.
The action must be brought within the same period specified in Article 173, except when the
action is based on the second paragraph of Article 172, in which case the action may be brought
during the lifetime of the alleged parent.

The provisions of the Family Code are retroactively applied; Article 256 of the code reads:
"Art. 256.
This Code shall have retroactive effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with the Civil Code or other laws.
Thus, in Vda. de Sy-Quia vs. Court of Appeals,36[36] the Court has ruled:
"We hold that whether Jose was a voluntarily recognized natural child should be decided under
Article 278 of the Civil Code of the Philippines. Article 2260 of that Code provides that 'the
voluntary recognition of a natural child shall take place according to this Code, even if the child
was born before the effectivity of this body of laws' or before August 30, 1950. Hence, Article
278 may be given retroactive effect."
It should be apparent that the growing trend to liberalize the acknowledgment or recognition of
illegitimate children is an attempt to break away from the traditional idea of keeping well apart
legitimate and non-legitimate relationships within the family in favor of the greater interest and
welfare of the child. The provisions are intended to merely govern the private and personal
affairs of the family. There is little, if any, to indicate that the legitimate or illegitimate civil status
of the individual would also affect his political rights or, in general, his relationship to the State.
While, indeed, provisions on "citizenship" could be found in the Civil Code, such provisions must
be taken in the context of private relations, the domain of civil law; particularly "Civil Law is that branch of law which has for its double purpose the organization of the family
and the regulation of property. It has thus [been] defined as the mass of precepts which
determine and regulate the relations of assistance, authority and obedience among members of a
family, and those which exist among members of a society for the protection of private
interests."37[37]

causes for divorce, the extent of the latter, the authority to decree it, and, in general, the civil
effects of marriage and divorce upon the persons and properties of the spouses, are questions
that are governed exclusively by the national law of the husband and wife."
The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of the
Civil Code, stating that "Laws relating to family rights and duties, or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines, even though living abroad" that explains the need to incorporate in the code a reiteration of the Constitutional provisions on
citizenship. Similarly, citizenship is significant in civil relationships found in different parts of the
Civil Code,39[39] such as on successional rights and family relations.40[40] In adoption, for
instance, an adopted child would be considered the child of his adoptive parents and accorded
the same rights as their legitimate child but such legal fiction extended only to define his rights
under civil law41[41] and not his political status.
Civil law provisions point to an obvious bias against illegitimacy. This discriminatory attitude may
be traced to the Spanish family and property laws, which, while defining proprietary and
successional rights of members of the family, provided distinctions in the rights of legitimate and
illegitimate children. In the monarchial set-up of old Spain, the distribution and inheritance of
titles and wealth were strictly according to bloodlines and the concern to keep these bloodlines
uncontaminated by foreign blood was paramount.
These distinctions between legitimacy and illegitimacy were codified in the Spanish Civil Code,
and the invidious discrimination survived when the Spanish Civil Code became the primary source
of our own Civil Code. Such distinction, however, remains and should remain only in the sphere
of civil law and not unduly impede or impinge on the domain of political law.

In Yaez de Barnuevo vs. Fuster,38[38] the Court has held:

"In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating to family rights
and duties, or to the status, condition and legal capacity of persons, govern Spaniards although
they reside in a foreign country; that, in consequence, 'all questions of a civil nature, such as
those dealing with the validity or nullity of the matrimonial bond, the domicile of the husband and
wife, their support, as between them, the separation of their properties, the rules governing
property, marital authority, division of conjugal property, the classification of their property, legal

The proof of filiation or paternity for purposes of determining his citizenship status should thus be
deemed independent from and not inextricably tied up with that prescribed for civil law purposes.
The Civil Code or Family Code provisions on proof of filiation or paternity, although good law, do
not have preclusive effects on matters alien to personal and family relations. The ordinary rules
on evidence could well and should govern. For instance, the matter about pedigree is not
necessarily precluded from being applicable by the Civil Code or Family Code provisions.

Section 39, Rule 130, of the Rules of Court provides -

9.

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

10.

Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more
children after Ronald Allan Poe.

Act or Declaration about pedigree. The act or declaration of a person deceased, or unable to
testify, in respect to the pedigree of another person related to him by birth or marriage, may be
received in evidence where it occurred before the controversy, and the relationship between the
two persons is shown by evidence other than such act or declaration. The word `pedigree
includes relationship, family genealogy, birth, marriage, death, the dates when and the places
where these facts occurred, and the names of the relatives. It embraces also facts of family
history intimately connected with pedigree.
For the above rule to apply, it would be necessary that (a) the declarant is already dead or
unable to testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a
relative of the person whose pedigree is in question, (d) declaration must be made before the
controversy has occurred, and (e) the relationship between the declarant and the person whose
pedigree is in question must be shown by evidence other than such act or declaration.

xxx
18.

xxx

xxx

I am executing this Declaration to attest to the fact that my nephew, Ronald

Allan Poe is a natural born Filipino, and that he is the legitimate child of
Fernando Poe, Sr.

Done in City of Stockton, California, U.S.A., this 12th day of January 2004.

Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe
submitted as Exhibit 20 before the COMELEC, might be accepted to prove the acts of Allan F.
Poe, recognizing his own paternal relationship with FPJ, i.e, living together with Bessie Kelley and
his children (including respondent FPJ) in one house, and as one family -

Ruby Kelley Mangahas

Declarant
DNA Testing

"I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in Stockton, California,
U.S.A., after being sworn in accordance with law do hereby declare that:
1.

I am the sister of the late Bessie Kelley Poe.

2.

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

3.

Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more
popularly known in the Philippines as `Fernando Poe, Jr., or `FPJ.

4.

Ronald Allan Poe `FPJ was born on August 20, 1939 at St. Luke's Hospital,
Magdalena Street, Manila.
xxx

xxx

xxx

7.

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

8.

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

In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be

difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the
illegitimate child and any physical residue of the long dead parent could be resorted to. A positive
match would clear up filiation or paternity. In Tijing vs. Court of Appeals,42[42] this Court has
acknowledged the strong weight of DNA testing "Parentage will still be resolved using conventional methods unless we adopt the modern and
scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for
identification and parentage testing. The University of the Philippines Natural Science Research
Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using
short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a
child/person has two (2) copies, one copy from the mother and the other from the father. The
DNA from the mother, the alleged father and the child are analyzed to establish parentage. Of
course, being a novel scientific technique, the use of DNA test as evidence is still open to
challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the
admissibility of DNA evidence. For it was said, that courts should apply the results of science

when competently obtained in aid of situations presented, since to reject said result is to deny
progress."

before the 1935 Constitution pursuant to Article IV, Section 1(2) of the 1935 Constitution. No one
was illegitimate here.

Petitioners Argument For

Jurisprudential Conclusiveness

Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino father. Serra
was an illegitimate child of a Chinese father and a Filipino mother. The issue was whether one
who was already a Filipino because of his mother who still needed to be naturalized. There is
nothing there about invidious jus sanguinis.

Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have
transmitted his citizenship to respondent FPJ, the latter being an illegitimate child. According to
petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe, on July 5, 1936, contracted
marriage with a certain Paulita Gomez, making his subsequent marriage to Bessie Kelley
bigamous and respondent FPJ an illegitimate child. The veracity of the supposed certificate of
marriage between Allan F. Poe and Paulita Gomez could be most doubtful at best. But the
documentary evidence introduced by no less than respondent himself, consisting of a birth
certificate of respondent and a marriage certificate of his parents showed that FPJ was born on
20 August 1939 to a Filipino father and an American mother who were married to each other a
year later, or on 16 September 1940. Birth to unmarried parents would make FPJ an illegitimate
child. Petitioner contended that as an illegitimate child, FPJ so followed the citizenship of his
mother, Bessie Kelley, an American citizen, basing his stand on the ruling of this Court in Morano
vs. Vivo,43[43] citing Chiongbian vs. de Leon44[44] and Serra vs. Republic.45[45]
On the above score, the disquisition made by amicus curiae Joaquin G. Bernas, SJ, is most
convincing; he states -

Finally, Paa vs. Chan.46[46] This is a more complicated case. The case was about the citizenship
of Quintin Chan who was the son of Leoncio Chan. Quintin Chan claimed that his father, Leoncio,
was the illegitimate son of a Chinese father and a Filipino mother. Quintin therefore argued that
he got his citizenship from Leoncio, his father. But the Supreme Court said that there was no
valid proof that Leoncio was in fact the son of a Filipina mother. The Court therefore concluded
that Leoncio was not Filipino. If Leoncio was not Filipino, neither was his son Quintin. Quintin
therefore was not only not a natural-born Filipino but was not even a Filipino.
The Court should have stopped there. But instead it followed with an obiter dictum. The Court
said obiter that even if Leoncio, Quintin's father, were Filipino, Quintin would not be Filipino
because Quintin was illegitimate. This statement about Quintin, based on a contrary to fact
assumption, was absolutely unnecessary for the case. x x x It was obiter dictum, pure and
simple, simply repeating the obiter dictum in Morano vs. Vivo.
xxx

"We must analyze these cases and ask what the lis mota was in each of them. If the
pronouncement of the Court on jus sanguinis was on the lis mota, the pronouncement would be
a decision constituting doctrine under the rule of stare decisis. But if the pronouncement was
irrelevant to the lis mota, the pronouncement would not be a decision but a mere obiter dictum
which did not establish doctrine. I therefore invite the Court to look closely into these cases.
First, Morano vs. Vivo. The case was not about an illegitimate child of a Filipino father. It was
about a stepson of a Filipino, a stepson who was the child of a Chinese mother and a Chinese
father. The issue was whether the stepson followed the naturalization of the stepfather. Nothing
about jus sanguinis there. The stepson did not have the blood of the naturalized stepfather.
Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a Filipino father.
It was about a legitimate son of a father who had become Filipino by election to public office

xxx

xxx

"Aside from the fact that such a pronouncement would have no textual foundation in the
Constitution, it would also violate the equal protection clause of the Constitution not once but
twice. First, it would make an illegitimate distinction between a legitimate child and an
illegitimate child, and second, it would make an illegitimate distinction between the illegitimate
child of a Filipino father and the illegitimate child of a Filipino mother.
The doctrine on constitutionally allowable distinctions was established long ago by People vs.
Cayat.47[47] I would grant that the distinction between legitimate children and illegitimate
children rests on real differences. x x x But real differences alone do not justify invidious
distinction. Real differences may justify distinction for one purpose but not for another purpose.
x x x What is the relevance of legitimacy or illegitimacy to elective public service? What possible
state interest can there be for disqualifying an illegitimate child from becoming a public officer. It

was not the fault of the child that his parents had illicit liaison. Why deprive the child of the
fullness of political rights for no fault of his own? To disqualify an illegitimate child from holding
an important public office is to punish him for the indiscretion of his parents. There is neither
justice nor rationality in that. And if there is neither justice nor rationality in the distinction, then
the distinction transgresses the equal protection clause and must be reprobated.
The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this Court), Professor
Ruben Balane and Dean Martin Magallona, at bottom, have expressed similar views. The thesis of
petitioner, unfortunately hinging solely on pure obiter dicta, should indeed fail.
Where jurisprudence regarded an illegitimate child as taking after the citizenship of its mother, it
did so for the benefit the child. It was to ensure a Filipino nationality for the illegitimate child of
an alien father in line with the assumption that the mother had custody, would exercise parental
authority and had the duty to support her illegitimate child. It was to help the child, not to
prejudice or discriminate against him.

respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the affirmative,
whether or not the alleged illegitimacy of respondent prevents him from taking after the Filipino
citizenship of his putative father. Any conclusion on the Filipino citizenship of Lorenzo Pou could
only be drawn from the presumption that having died in 1954 at 84 years old, Lorenzo would
have been born sometime in the year 1870, when the Philippines was under Spanish rule, and
that San Carlos, Pangasinan, his place of residence upon his death in 1954, in the absence of any
other evidence, could have well been his place of residence before death, such that Lorenzo Pou
would have benefited from the en masse Filipinization that the Philippine Bill had effected in
1902. That citizenship (of Lorenzo Pou), if acquired, would thereby extend to his son, Allan F.
Poe, father of respondent FPJ. The 1935 Constitution, during which regime respondent FPJ has
seen first light, confers citizenship to all persons whose fathers are Filipino citizens regardless of
whether such children are legitimate or illegitimate.

The fact of the matter perhaps the most significant consideration is that the 1935 Constitution,
the fundamental law prevailing on the day, month and year of birth of respondent FPJ, can never
be more explicit than it is. Providing neither conditions nor distinctions, the Constitution states
that among the citizens of the Philippines are those whose fathers are citizens of the Philippines.
There utterly is no cogent justification to prescribe conditions or distinctions where there clearly
are none provided.

(4)
But while the totality of the evidence may not establish conclusively that respondent FPJ
is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in his
favor enough to hold that he cannot be held guilty of having made a material misrepresentation
in his certificate of candidacy in violation of Section 78, in relation to Section 74, of the Omnibus
Election Code. Petitioner has utterly failed to substantiate his case before the Court,
notwithstanding the ample opportunity given to the parties to present their position and
evidence, and to prove whether or not there has been material misrepresentation, which, as so
ruled in Romualdez-Marcos vs. COMELEC,48[48] must not only be material, but also deliberate
and willful.

In Sum

WHEREFORE, the Court RESOLVES to DISMISS

(1)
The Court, in the exercise of its power of judicial review, possesses jurisdiction over the
petition in G. R. No. 161824, filed under Rule 64, in relation to Rule 65, of the Revised Rules of
Civil Procedure. G.R. No. 161824 assails the resolution of the COMELEC for alleged grave abuse
of discretion in dismissing, for lack of merit, the petition in SPA No. 04-003 which has prayed for
the disqualification of respondent FPJ from running for the position of President in the 10 th May
2004 national elections on the contention that FPJ has committed material representation in his
certificate of candidacy by representing himself to be a natural-born citizen of the Philippines.

1.
G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr.,
Petitioners, versus Commission on Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando Poe, Jr.,)
and Victorino X. Fornier, Respondents," and G. R. No. 161634, entitled "Zoilo Antonio Velez,
Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr., Respondent," for want of
jurisdiction.

(2)
The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in G. R. No.
161434 and No. 161634 both having been directly elevated to this Court in the latters capacity as
the only tribunal to resolve a presidential and vice-presidential election contest under the
Constitution. Evidently, the primary jurisdiction of the Court can directly be invoked only after,
not before, the elections are held.

2.
G. R. No. 161824, entitled Victorino X. Fornier, Petitioner, versus Hon. Commission on
Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr., for failure to show grave
abuse of discretion on the part of respondent Commission on Elections in dismissing the petition
in SPA No. 04-003.
No Costs.
SO ORDERED.

(3)
In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been
committed by the COMELEC, it is necessary to take on the matter of whether or not respondent
FPJ is a natural-born citizen, which, in turn, depended on whether or not the father of

EN BANC

unequivocally emerged is the fact that residence for election purposes is used synonymously with
domicile.

[G.R. No. 119976. September 18, 1995.]

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

ON

Estelito P. Mendoza for petitioner.

The Solicitor General for public respondent.
Paquito N . Ochoa, Jr. and Gracelda N . Andres for private respondent.
SYLLABUS
1. CIVIL LAW; DOMICILE; CONSTRUED. Article 50 of the Civil Code decrees that "[f]or the
exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is
their place of habitual residence." In Ong vs. Republic this court took the concept of domicile to
mean an individual's "permanent home," "a place to which, whenever absent for business or for
pleasure, one intends to return, and depends on facts and circumstances in the sense that they
disclose intent." Based on the foregoing, domicile includes the twin elements of "the fact of
residing or physical presence in a fixed place" and animus manendi, or the intention of returning
there permanently.
2. ID.; ID.; RESIDENCE, CONSTRUED. Residence, in its ordinary conception, implies the
factual relationship of an individual to a certain place. It is the physical presence of a person in a
given area, community or country.
3. ID.; ID.; DIFFERENTIATED FROM RESIDENCE. The essential distinction between residence
and domicile in law is that residence involves the intent to leave when the purpose for which the
resident has taken up his abode ends. One may seek a place for purposes such as pleasure,
business, or health. If a person's intent be to remain, it becomes his domicile; if his intent is to
leave as soon as his purpose is established it is residence. It is thus, quite perfectly normal for an
individual to have different residences in various places. However, a person can only have a
single domicile, unless, for various reasons, he successfully abandons his domicile in favor of
another domicile of choice.
4. POLITICAL LAW; ELECTIONS; RESIDENCE USED SYNONYMOUSLY WITH DOMICILE. For
political purposes the concepts of residence and domicile are dictated by the peculiar criteria of
political laws. As these concepts have evolved in our election law, what has clearly and

5. ID.; ID.; ID.; ABSENCE FROM PERMANENT RESIDENCE WITHOUT INTENTION TO ABANDON
IT DOES NOT RESULT IN LOSS OR CHANGE OF DOMICILE. So settled is the concept (of
domicile) in our election law that in these and other election law cases, this Court has stated that
the mere absence of an individual from his permanent residence without the intention to
abandon it does not result in a loss or change of domicile. The deliberations of the 1987
Constitution on the residence qualification for certain elective positions have placed beyond doubt
the principle that when the Constitution speaks of "residence" in election law, it actually means
only "domicile."
6. ID.; ID.; ID.; FACT OF RESIDENCE, NOT STATEMENT IN CERTIFICATE OF CANDIDACY,
DECISIVE FACTOR IN DETERMINING RESIDENCY QUALIFICATION REQUIREMENT. It is the
fact of residence, not a statement in a certificate of candidacy which ought to be decisive in
determining whether or not an individual has satisfied the constitution's residency qualification
requirement. The said statement becomes material only when there is or appears to be a
deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a
candidate ineligible. It would be plainly ridiculous for a candidate to deliberately and knowingly
make a statement in a certificate of candidacy which would lead to his or her disqualification.
cdlex
7. ID.; ID.; ID.; ID.; CASE AT BAR. It stands to reason therefore, that petitioner merely
committed an honest mistake in jotting down the word "seven" in the space provided for the
residency qualification requirement. The circumstances leading to her filing the questioned entry
obviously resulted in the subsequent confusion which prompted petitioner to write down the
period of her actual stay in Tolosa, Leyte instead of her period of residence in the First district,
which was "since childhood" in the space provided. These circumstances and events are amply
detailed in the COMELEC's Second Division's questioned resolution, albeit with a different
interpretation. For instance, when herein petitioner announced that she would be registering in
Tacloban City to make her eligible to run in the First District, private respondent Montejo opposed
the same, claiming that petitioner was a resident of Tolosa, not Tacloban City. Petitioner then
registered in her place of actual residence in the First District, which was Tolosa, Leyte, a fact
which she subsequently noted down in her Certificate of Candidacy. A close look at said
certificate would reveal the possible source of the confusion: the entry for residence (Item No. 7)
is followed immediately by the entry for residence in the constituency where a candidate seeks
election. Having been forced by private respondent to register in her place of actual residence in
Leyte instead of petitioner's claimed domicile, it appears that petitioner had jotted down her
period of stay in her legal residence or domicile. The juxtaposition of entries in Item 7 and Item 8
the first requiring actual residence and the second requiring domicile coupled with the
circumstances surrounding petitioner's registration as a voter in Tolosa obviously led to her
writing down an unintended entry for which she could be disqualified. This honest mistake should

not, however, be allowed to negate the fact of residence in the First District if such fact were
established by means more convincing than a mere entry on a piece of paper. cdll
8. ID.; ID.; ID.; ABSENCE FROM LEGAL RESIDENCE OR DOMICILE OF A TEMPORARY OR SEMIPERMANENT NATURE DOES NOT CONSTITUTE LOSS OF RESIDENCE. We have stated, many
times in the past, that an individual does not lose his domicile even if he has lived and
maintained residences in different places. Residence, it bears repeating, implies a factual
relationship to a given place for various purposes. The absence from legal residence or domicile
to pursue a profession, to study or to do other things of a temporary or semi-permanent nature
does not constitute loss of residence. Thus, the assertion by the COMELEC that "she could not
have been a resident of Tacloban City since childhood up to the time she filed her certificate of
candidacy because she became a resident of many places" flies in the face of settled
jurisprudence in which this Court carefully made distinctions between (actual) residence and
domicile for election law purposes.
9. CIVIL LAW; DOMICILE; A MINOR FOLLOWS THE DOMICILE OF HIS PARENTS; CASE AT
BENCH. A minor follows the domicile of his parents. As domicile, once acquired is retained
until a new one is gained, it follows that in spite of the fact of petitioner's being born in Manila,
Tacloban, Leyte was her domicile of origin by operation of law. This domicile was not established
only when her father brought his family back to Leyte contrary to private respondent's
averments.
10. ID.; ID.; REQUISITES TO EFFECT CHANGE OF DOMICILE. Domicile of origin is not easily
lost. To successfully effect a change of domicile, one must demonstrate: 1. An actual removal or
an actual change of domicile; 2. A bona fide intention of abandoning the former place of
residence and establishing a new one; and 3. Acts which correspond with the purpose.
11. ID.; ID.; ID.; CASE AT BENCH. In the absence of clear and positive proof based on these
criteria, the residence of origin should be deemed to continue. Only with evidence showing
concurrence of all three requirements can the presumption of continuity or residence be
rebutted, for a change of residence requires an actual and deliberate abandonment, and one
cannot have two legal residences at the same time. In the case at bench, the evidence adduced
by private respondent plainly lacks the degree of persuasiveness required to convince this court
that an abandonment of domicile of origin in favor of a domicile of choice indeed occurred. To
effect an abandonment requires the voluntary act of relinquishing petitioner's former domicile
with an intent to supplant the former domicile with one of her own choosing (domicilium
voluntarium).
12. ID.; ID.; ID.; MARRIAGE, NOT A CAUSE FOR LOSS OF DOMICILE. In this connection, it
cannot be correctly argued that petitioner lost her domicile of origin by operation of law as a
result of her marriage to the late President Ferdinand E. Marcos in 1954. For there is a clearly
established distinction between the Civil Code concepts of "domicile" and "residence." The

presumption that the wife automatically gains the husband's domicile by operation of law upon
marriage cannot be inferred from the use of the term "residence" in Article 110 of the Civil Code
because the Civil Code is one area where the two concepts are well delineated. A survey of
jurisprudence relating to Article 110 or to the concepts of domicile or residence as they affect the
female spouse upon marriage yields nothing which would suggest that the female spouse
automatically loses her domicile of origin in favor of the husband's choice of residence upon
marriage. Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889: La
mujer esta obligada a seguir a su marido donde quiera que fije su residencia . Los Tribunales, sin
embargo, podran con justa causa eximirla de esta obligacion cuando el marido transende su
residencia a ultramar o' a pais extranjero. Note the use of the phrase "donde quiera su fije de
residencia" in the aforequoted article, which means wherever (the husband) wishes to establish
residence. This part of the article clearly contemplates only actual residence because it refers to a
positive act of fixing a family home or residence. Moreover, this interpretation is further
strengthened by the phrase "cuando el marido translade su residencia" in the same provision
which means, "when the husband shall transfer his residence," referring to another positive act
of relocating the family to another home or place of actual residence. The article obviously
cannot be understood to refer to domicile which is a fixed, fairly-permanent concept when it
plainly connotes the possibility of transferring from one place to another not only once, but as
often as the husband may deem fit to move his family, a circumstance more consistent with the
concept of actual residence. Very significantly, Article 110 of the Civil Code is found under Title V
under the heading: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately
preceding Article 110 is Article 109 which obliges the husband and wife to live together. The duty
to live together can only be fulfilled if the husband and wife are physically together. This takes
into account the situations where the couple has many residences (as in the case of petitioner).
If the husband has to stay in or transfer to any one of their residences, the wife should
necessarily be with him in order that they may "live together." Hence, it is illogical to conclude
that Art. 110 refers to "domicile" and not to "residence." Otherwise, we shall be faced with a
situation where the wife is left in the domicile while the husband, for professional or other
reasons, stays in one of their (various) residences.

13. ID.; ID.; TERM RESIDENCE REFERS TO "ACTUAL RESIDENCE." The term residence may
mean one thing in civil law (or under the Civil Code) and quite another thing in political law.
What stands clear is that insofar as the Civil Code is concerned affecting the rights and
obligations of husband and wife the term residence should only be interpreted to mean "actual
residence." The inescapable conclusion derived from this unambiguous civil law delineation
therefore, is that when petitioner married the former President in 1954, she kept her domicile of
origin and merely gained a new home, not a domicilium necessarium.
14. STATUTORY CONSTRUCTION; STATUTE REQUIRING RENDITION OF JUDGMENT WITHIN
SPECIFIED TIME, MERELY DIRECTORY. It is a settled doctrine that a statute requiring

rendition of judgment within a specified time is generally construed to be merely directory, "so
that non-compliance with them does not invalidate the judgment on the theory that if the statute
had intended such result it would have clearly indicated it." The difference between a mandatory
and a directory provision is often made on grounds of necessity.
15. CONSTITUTIONAL
LAW;
COMELEC;
JURISDICTION
TO
DECIDE
PENDING
DISQUALIFICATION CASE NOT LOST BY HOLDING OF ELECTIONS. With the enactment of
Sections 6 and 7 of R.A. 6646 in relation to Section 78 of B.P. 881, it is evident that the
respondent Commission does not lose jurisdiction to hear and decide a pending disqualification
case under Section 78 of B.P. 881 even after the elections.
16. ID.; LEGISLATURE; HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET); SOLE
JUDGE OF ALL CONTESTS RELATING TO ELECTIONS, RETURNS AND QUALIFICATIONS OF
MEMBERS OF CONGRESS; CANDIDATE MUST HAVE BEEN PROCLAIMED. As to the House of
Representatives Electoral Tribunal's supposed assumption of jurisdiction over the issue of
petitioner's qualifications after the May 8, 1995 elections, suffice it to say that HRET's jurisdiction
as the sole judge of all contests relating to the elections, returns and qualifications of members of
Congress begins only after a candidate has become a member of the House of Representatives.
Petitioner not being a member of the House of Representatives, it is obvious that the HRET at
this point has no jurisdiction over the question.
PUNO, J ., concurring opinion:
1. CIVIL LAW; DOMICILE; DOMICILE OF ORIGIN AND DOMICILE OF CHOICE; ESTABLISHED BY
CANDIDATE'S CONTINUED STAY IN HER PARENT'S RESIDENCE. There is no question that
petitioner's original domicile is in Tacloban, Leyte. Her parents were domiciled in Tacloban. Their
ancestral house is in Tacloban. They have vast real estate in the place. Petitioner went to school,
and thereafter worked there. Justice Puno considers Tacloban as her initial domicile, both her
domicile of origin and her domicile of choice. Her domicile of origin as it was the domicile of her
parents when she was a minor; and her domicile of choice, as she continued living there even
after reaching the age of majority.
2. ID.; ID.; DOMICILE BY OPERATION OF LAW; ACQUIRED BY MARRIAGE AND DELIBERATE
CHOICE OF A DIFFERENT DOMICILE BY THE HUSBAND. There is also no question that in May,
1954, petitioner married the late President Ferdinand E. Marcos. By contracting marriage, her
domicile became subject to change by law, and the right to change it was given by Article 110 of
the Civil Code. The difficult issues start as we determine whether petitioner's marriage to former
President Marcos ipso facto resulted in the loss of her Tacloban domicile. Justice Puno
respectfully submits that her marriage by itself alone did not cause her to lose her Tacloban
domicile. Article 110 of the Civil Code merely gave the husband the right to fix the domicile of the
family. In the exercise of the right, the husband may explicitly choose the prior domicile of his
wife, in which case, the wife's domicile remains unchanged. The husband can also implicitly

acquiesce to his wife's prior domicile even if it is different. It is not, therefore, the mere fact of
marriage but the deliberate choice of a different domicile by the husband that will change the
domicile of a wife from what it was prior to their marriage. The domiciliary decision made by the
husband in the exercise of the right conferred by Article 110 of the Civil Code binds the wife. Any
and all acts of a wife during her coverture contrary to the domiciliary choice of the husband
cannot change in any way the domicile legally fixed by the husband. These acts are void not only
because the wife lacks the capacity to choose her domicile but also because they are contrary to
law and public policy. prLL
3. ID.; ID.; ID.; CASE AT BENCH. In the case at bench, it is not disputed that former President
Marcos exercised his right to fix the family domicile and established it in Batac, Ilocos Norte,
where he was then the congressman. At that particular point of time and throughout their
married life, petitioner lost her domicile in Tacloban, Leyte. Since petitioner's Batac domicile has
been fixed by operation of law, it was not affected in 1959 when her husband was elected as
Senator, when they lived in San Juan, Rizal and where she registered as a voter. It was not also
affected in 1965 when her husband was elected President, when they lived in Malacaang
Palace, and when she registered as a voter in San Miguel, Manila. Nor was it affected when she
served as a member of the Batasang Pambansa, Minister of Human Settlements and Governor of
Metro Manila during the incumbency of her husband as President of the nation. Under Article 110
of the Civil Code, it was only her husband who could change the family domicile in Batac and the
evidence shows he did not effect any such change. To a large degree, this follows the common
law that "a woman on her marriage loses her own domicile and by operation of law, acquires that
of her husband, no matter where the wife actually lives or what she believes or intends."
4. ID.; ID.; ID.; PRINCIPLE THAT AFTER THE HUSBAND'S DEATH, WIFE RETAINS LAST
DOMICILE OF HER HUSBAND, SHOULD NOW BE ABANDONED. The more difficult task is how
to interpret the effect of the death on September 28, 1989 of former President Marcos on
petitioner's Batac domicile. The issue is of first impression in our jurisdiction and two (2) schools
of thought contend for acceptance. One is espoused by our distinguished colleague, Mr. Justice
Davide, Jr., heavily relying on American authorities. He echoes the theory that after the
husband's death, the wife retains the last domicile of her husband until she makes an actual
change. The American case law that the wife still retains her dead husband's domicile is based on
ancient common law which we can no longer apply in the Philippine setting today . The
presumption that the wife retains the domicile of her deceased husband is an extension of this
common law concept. The concept and its extension have provided some of the most iniquitous
jurisprudence against women. The rulings relied upon by Mr. Justice Davide in CJS and AM JUR
2d are American state court decisions handed down between the years 1917 and 1938, or before
the time when women were accorded equality of rights with men. Undeniably, the women's
liberation movement resulted in far-ranging state legislations in the United States to eliminate
gender inequality. However, it has been declared that under modern statutes changing the status
of married women and departing from the common law theory of marriage, there is no reason
why a wife may not acquire a separate domicile for every purpose known to the law . In

publishing in 1969 the Restatement of the Law, Second (Conflict of Laws 2d), the reputable
American Law Institute also categorically stated that the view of Blackstone ". . . is no longer
held.As the result of statutes and court decisions, a wife now possesses practically the same
rights and powers as her unmarried sister." In light of the Family Code which abrogated the
inequality between husband and wife as started and perpetuated by the common law, there is no

reason in espousing the anomalous rule that the wife still retains the domicile of her dead
husband. Article 110 of the Civil Code which provides the statutory support for this stance has
been repealed by Article 69 of the Family Code. By its repeal, it becomes a dead-letter law, and
we are not free to resurrect it by giving it further effect in any way or manner such as by ruling
that the petitioner is still bound by the domiciliary determination of her dead husband.
5. ID.; ID.; ID.; WIFE REACQUIRED DOMICILE OF ORIGIN UPON DEATH OF HUSBAND.
Prescinding from these premises, Justice Puno respectfully submits that the better stance is to
rule that petitioner reacquired her Tacloban domicile upon the death of her husband in 1989 .
This is the necessary consequence of the view that petitioner's Batac dictated domicile did not
continue after her husband's death; otherwise, she would have no domicile and that will violate
the universal rule that no person can be without a domicile at any point of time. This stance also
restores the right of petitioner to choose her domicile before it was taken away by Article 110 of
the Civil Code, a right now recognized by the Family Code and protected by the Constitution.
Likewise, Justice Puno cannot see the fairness of the common law requiring petitioner to choose
again her Tacloban domicile before she could be released from her Batac domicile. She lost her
Tacloban domicile not through her act but through the act of her deceased husband when he
fixed their domicile in Batac. Her husband is dead and he cannot rule her beyond the grave. The
law disabling her to choose her own domicile has been repealed. Considering all these, common
law should not put the burden on petitioner to prove she has abandoned her dead husband's
domicile. There is neither rhyme nor reason for this gender-based burden. Llibris
6. ID.; ID.; ID.; ID.; DELIBERATE CHOICE BY WIFE MANIFEST IN CASE AT BAR. But even

assuming arguendo that there is need for convincing proof that petitioner chose to reacquire her
Tacloban domicile, still, the records reveal ample evidence to this effect. In her affidavit
submitted to the respondent COMELEC, petitioner averred among others that: "I was not
permitted, however, to live and stay in the Sto. Nio Shrine residence in Tacloban City where I
wanted to stay and reside, after repairs and renovations were completed. In August 1994, I
transferred from San Jose, Tacloban City, to my residence in Barangay Olot, Tolosa, Leyte, when
PCGG permitted me to stay and live there." It is then clear that in 1992 petitioner reestablished
her domicile in the First District of Leyte. It is not disputed that in 1992, she first lived at the
house of her brother in San Jose, Tacloban City and later, in August 1994, she transferred her
residence in Barangay Olot, Tolosa, Leyte. Both Tacloban City and the municipality of Olot are
within the First District of Leyte. Since petitioner reestablished her old domicile in 1992 in the
First District of Leyte, she more than complied with the constitutional requirement of residence ".
. . for a period of not less than one year immediately preceding the day of the election," i.e., the
May 8, 1995 elections.

7. POLITICAL LAW; ELECTIONS; CERTIFICATE OF CANDIDACY; AMENDMENT TO CORRECT A

BONA FIDE MISTAKE, ALLOWED AS A MATTER OF RIGHT. The amendment of a certificate of
candidacy to correct a bona fide mistake has been allowed by this Court as a matter of course
and as a matter of right. (Alialy v. COMELEC , 2 SCRA 957, 960 [1961]; Canceran v. COMELEC ,
107 Phil. 607 [1960]; Gabaldon v. COMELEC , 99 Phil. 898 [1956])
8. CONSTITUTIONAL LAW; FREEDOM FROM HARASSMENT AND DISCRIMINATION OF BONA
FIDE CANDIDATES FOR PUBLIC OFFICE; RIGHT VIOLATED BY LEGAL AND EXTRA-LEGAL
OBSTACLES AGAINST CANDIDATE TO PREVENT HER FROM RUNNING. Section 10, Article IX-C
of the Constitution mandates that "bona fide candidates for any public office shall be free from
any form of harassment and discrimination." A detached reading of the records of the case at
bench will show that all forms of legal and extra-legal obstacles have been thrown against
petitioner to prevent her from running as the people's representative in the First District of Leyte.
In petitioner's Answer to the petition to disqualify her, she averred that when respondent
(petitioner herein) announced that she was intending to register as a voter in Tacloban City and
run for Congress in the First District of Leyte, petitioner (Montejo) immediately opposed her
intended registration by writing a letter stating that she is not a resident of said city but of
Barangay Olot, Tolosa, Leyte. After respondent (petitioner herein) had registered as a voter in
Tolosa following completion of her six-month actual residence therein, petitioner (Montejo) filed a
petition with the COMELEC to transfer the town of Tolosa from the First District to the Second
District and pursued such move up to the Supreme Court in G.R. No. 118702, his purpose being
to remove respondent (petitioner herein) as petitioner's (Montejo's) opponent in the
congressional election in the First District. He also filed a bill, along with other Leyte
Congressmen, seeking to create another legislative district, to remove the town of Tolosa out of
the First District and to make it a part of the new district, to achieve his purpose. However, such
bill did not pass the Senate. Having failed on such moves, petitioner now filed the instant
petition, for the same objective, as it is obvious that he is afraid to submit himself along with
respondent (petitioner herein) for the judgment and verdict of the electorate of the First District
of Leyte in an honest, orderly, peaceful, free and clean elections on May 8, 1995. All these

attempts to misuse our laws and legal processes are forms of rank harassments and invidious
discriminations against petitioner to deny her equal access to a public office. We cannot commit
any hermeneutic violence to the Constitution by torturing the meaning of equality, the end result
of which will allow the harassment and discrimination of petitioner who has lived a controversial
life, a past of alternating light and shadow. There is but one Constitution for all Filipinos.
Petitioner cannot be adjudged by a "different" Constitution, and the worst way to interpret the
Constitution is to inject in its interpretation, bile and bitterness.
9. POLITICAL LAW; ELECTIONS; ONE YEAR RESIDENCY REQUIREMENT; RATIONALE;
CANDIDATE'S LIFETIME CONTACTS WITH FIRST DISTRICT OF LEYTE SATISFIES INTENT. In
Gallego v. Vera, we explained that the reason for this residence requirement is "to exclude a

stranger or newcomer, unacquainted with the conditions and needs of a community and not
identified with the latter, from an elective office to serve that community. . . ." Petitioner's
lifetime contacts with the First District of Leyte cannot be contested. Nobody can claim that she is
not acquainted with its problems because she is a stranger to the place. None can argue she
cannot satisfy the intent of the Constitution.
10. ID.; ID.; ELECTION CASES; DOMINANT CONSIDERATION IN RESOLUTION THEREOF IS THE
NEED TO EFFECTUATE WILL OF THE ELECTORATE. In resolving election cases, a dominant
consideration is the need to effectuate the will of the electorate. The election results show that
petitioner received Seventy Thousand Four Hundred Seventy-One (70,471) votes, while private
respondent got only Thirty-Six Thousand Eight Hundred Thirty-Three (36,833) votes. Petitioner is
clearly the overwhelming choice of the electorate of the First District of Leyte and this is not a
sleight of statistics. We cannot frustrate this sovereign will on highly arguable technical
considerations. In case of doubt, we should lean towards a rule that will give life to the people's
political judgment.
FRANCISCO, J ., concurring opinion:
1. CIVIL LAW; DOMICILE; DEFINED. Domicile has been defined as that place in which a
person's habitation is fixed, without any present intention of removing therefrom, and that place
is properly the domicile of a person in which he has voluntarily fixed his abode, or habitation, not
for a mere special or temporary purpose, but with a present intention of making it his permanent
home (28 C.J.S. 1). It denotes a fixed permanent residence to which when absent for business,
or pleasure, or for like reasons one intends to return, and depends on facts and circumstances, in
the sense that they disclose intent. (Ong Huan Tin v. Republic, 19 SCRA 966, 969)
2. ID.; ID.; CLASSIFICATIONS. Domicile is classified into domicile of origin and domicile of
choice. The law attributes to every individual a domicile of origin, which is the domicile of his
parents, or of the head of his family, or of the person on whom he is legally dependent at the
time of his birth. While the domicile of origin is generally the place where one is born or reared, it
maybe elsewhere (28 C.J.S. 5). Domicile of choice, on the other hand, is the place which the
person has elected and chosen for himself to displace his previous domicile; it has for its true
basis or foundation the intention of the person (28 C.J.S. 6). A third classification is domicile by
operation of law which attributes to a person a domicile independent of his own intention or
actual residence, ordinarily resulting from legal domestic relations, as that of the wife arising
from marriage, or the relation of a parent and a child (28 C.J.S. 7).
3. ID.; ID.; CHANGE OF DOMICILE; REQUISITES. In order to hold that a person has
abandoned his domicile and acquired a new one called domicile of choice, the following requisites
must concur, namely, (a) residence or bodily presence in the new locality, (b) intention to remain
there or animus manendi, and (c) an intention to abandon the old domicile or animus non
revertendi (Romualdez v. RTC , Br. 7, Tacloban City, 226 SCRA 408, 415).

4. POLITICAL LAW; ELECTIONS; RESIDENCE SYNONYMOUS WITH DOMICILE. In election law,

when our Constitution speaks of residence for election purposes it means domicile ( Co v.
Electoral Tribunal of the House of Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52 Phil.
645, 651).
5. ID.; ID.; ID.; NOT ABANDONED OR LOST BY REGISTRATION OF VOTER IN A PLACE OTHER
THAN HIS PLACE OF ORIGIN. In several decisions, though, the Court has laid down the rule
that registration of a voter in a place other than his place of origin is not sufficient to constitute
abandonment or loss of such residence (Faypon v. Quirino, 96 Phil. 294, 300). Respondent
Commission offered no cogent reason to depart from this rule except to surmise petitioner's
intent of abandoning her domicile of origin.
6. ID.; ID.; ID.; MARITAL DOMICILE; LOST UPON DEATH OF HUSBAND; WIFE REVERTED TO
HER ORIGINAL DOMICILE; CASE AT BAR. Tacloban, Leyte, is petitioner's domicile of origin
which was involuntarily supplanted with another, i.e., Batac, Ilocos Norte, upon her marriage in
1954 with then Congressman Marcos. By legal fiction she followed the domicile of her husband.
In my view, the reason for the law is for the spouses to fully and effectively perform their marital
duties and obligations to one another. The question of domicile, however, is not affected by the
fact that it was the legal or moral duty of the individual to reside in a given place (28 C.J.S. 11).
Thus, while the wife retains her marital domicile so long as the marriage subsists, she
automatically loses it upon the latter's termination, for the reason behind the law then ceases.
Otherwise, petitioner, after her marriage was ended by the death of her husband, would be
placed in a quite absurd and unfair situation of having been freed from all wifely obligations yet
made to hold on to one which no longer serves any meaningful purpose. It is my view therefore
that petitioner reverted to her original domicile of Tacloban, Leyte upon her husband's death
without even signifying her intention to that effect.
7. ID.; ID.; ID.; PARTY CLAIMING THAT A PERSON HAS ABANDONED OR LOST HIS RESIDENCE
OF ORIGIN MUST SHOW AND PROVE SUCH LOSS OR ABANDONMENT. It is for the private
respondent to prove, not for petitioner to disprove, that petitioner has effectively abandoned
Tacloban, Leyte for Batac, Ilocos Norte or for some other place/s. The clear rule is that it is the
party (herein private respondent) claiming that a person has abandoned or lost his residence of
origin who must show and prove preponderantly such abandonment or loss (Faypon v. Quirino,
supra at 298; 28 C.J.S. 16), because the presumption is strongly in favor of an original or former
domicile, as against an acquired one (28 C.J.S. 16). Private respondent unfortunately failed to
discharge this burden as the record is devoid of convincing proof that petitioner has acquired,
whether voluntarily or involuntarily, a new domicile to replace her domicile of origin.
8. ID.; ID.; ID.; ONE-YEAR RESIDENCE REQUIREMENT; REQUIREMENT MET IN CASE AT BENCH.
The records, on the contrary, clearly show that petitioner has complied with the constitutional
one-year residence requirement. After her exile abroad, she returned to the Philippines in 1991 to
reside in Olot, Tolosa, Leyte, but the Presidential Commission on Good Government which

sequestered her residential house and other properties forbade her necessitating her transient
stay in various places in Manila. In 1992, she ran for the position of president writing in her
certificate of candidacy her residence as San Juan, Metro Manila. After her loss therein, she went
back to Tacloban City, acquired her residence certificate and resided with her brother in San
Jose. She resided in San Jose, Tacloban City until August of 1994 when she was allowed by the
PCGG to move and reside in her sequestered residential house in Olot, Tolosa, Leyte. It was in
the same month of August when she applied for the cancellation of her previous registration in
San Juan, Metro Manila in order to register anew as voter of Olot, Tolosa, Leyte, which she did
on January 28, 1995. From this sequence of events, I find it quite improper to use as the
reckoning period of the one-year residence requirement the date when she applied for the
cancellation of her previous registration in San Juan, Metro Manila. The fact which private
respondent never bothered to disprove is that petitioner transferred her residence after the 1992
presidential election from San Juan, Metro Manila to San Jose, Tacloban City, and resided therein
until August of 1994. She later transferred to Olot, Tolosa, Leyte. It appearing that both Tacloban
City and Tolosa, Leyte are within the First Congressional District of Leyte, it indubitably stands
that she had more than a year of residence in the constituency she sought to be elected.
Petitioner, therefore, has satisfactorily complied with the one-year qualification required by the
1987 Constitution.

PADILLA, J ., dissenting opinion:

1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; COMELEC DID NOT COMMIT GRAVE
ABUSE OF DISCRETION IN DISQUALIFYING CANDIDATE FOR FAILURE TO COMPLY WITH THE
ONE YEAR RESIDENCE QUALIFICATION. The one year residence period is crucial regardless of
whether or not the term "residence" is to be synonymous with "domicile." In other words, the
candidate's intent and actual presence in one district must in all situations satisfy the length of
time prescribed by the fundamental law. And this, because of a definite Constitutional purpose.
He must be familiar with the environment and problems of a district he intends to represent in
Congress and the one-year residence in said district would be the minimum period to acquire
such familiarity, if not versatility. Petitioner's certificate of candidacy filed on 8 March 1995
contains the decisive component or seed of her disqualification. It is contained in her answer
under oath of "seven months" to the query of "residence in the constituency wherein I seek to be
elected immediately preceding the election." It follows from all the above that the Comelec
committed no grave abuse of discretion in holding that petitioner is disqualified from the position
of representative for the 1st congressional district of Leyte in the elections of 8 May 1995, for
failure to meet the "not less than one-year residence in the constituency (1st district, Leyte)
immediately preceding the day of election (8 May 1995)."
2. POLITICAL LAW; ELECTIONS; DISQUALIFICATION; CANDIDATE WHO OBTAINED THE
SECOND HIGHEST NUMBER OF VOTES CAN NOT BE DECLARED WINNER OF ELECTIVE OFFICE

WHERE CANDIDATE WHO OBTAINED THE HIGHEST NUMBER OF VOTES IS DECLARED

DISQUALIFIED OR NOT ELIGIBLE FOR OFFICE. The fact that the candidate who obtained the
highest number of votes is later declared to be disqualified or not eligible for the office to which
he was elected does not necessarily entitle the candidate who obtained the second highest
number of votes to be declared the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him
there. However, in the absence of a statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was
alive, qualified, or eligible, they should not be treated as stray,void or meaningless. (Labo vs.
Comelec, G.R. 86564, August 1, 1989, 176 SCRA 1)
3. ID.; ID.; REPUBLIC ACT NO. 6646 (AN ACT INTRODUCING REFORMS IN THE ELECTORAL
SYSTEM AND FOR OTHER PURPOSES); VOTES CAST FOR A CANDIDATE DECLARED
DISQUALIFIED BY FINAL JUDGMENT SHALL NOT BE COUNTED; CANDIDATE WHO OBTAINED
THE SECOND HIGHEST NUMBER OF VOTES WHERE THE WINNING CANDIDATE IS DECLARED
DISQUALIFIED DEEMED THE WINNER. Under Sec. 6 of RA 6646, (An Act Introducing
Additional Reforms in the Electoral System and for other purposes) (84 O.G. 905, 22 February
1988) it is provided that: . . . Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. The law is
clear that in all situations, the votes cast for a disqualified candidate SHALL NOT BE COUNTED.
The law has also validated the jurisdiction of the Court or Commission on Election to continue
hearing the petition for disqualification in case a candidate is voted for and receives the highest
number of votes, if for any reason, he is not declared by final judgment before an election to be
disqualified. What happens then when after the elections are over, one is declared disqualified?
Then, votes cast for him "shall not be counted" and in legal contemplation, he no longer received
the highest number of votes. It stands to reason that Section 6 of RA 6646 does not make the
second placer the winner simply because a "winning candidate is disqualified," but that the law
considers him as the candidate who had obtained the highest number of votes as a result of the
votes cast for the disqualified candidate not being counted or considered. As this law clearly
reflects the legislative policy on the matter, then there is no reason why this Court should not reexamine and consequently abandon the doctrine in the Jun Labo case. It has been stated that
"the qualifications prescribed for elective office cannot be erased by the electorate alone. The will
of the people as expressed through the ballot cannot cure the vice of ineligibility" most especially
when it is mandated by no less than the Constitution. ACCORDINGLY, I vote to DISMISS the
petition and to order the Provincial Board of Canvassers of Leyte to proclaim the candidate
receiving the highest number of votes, from among the qualified candidates, as the duly elected
representative of the 1st district of Leyte.
REGALADO, J ., dissenting opinion:

1. CIVIL LAW; DOMICILE; DOMICILE OF ORIGIN; CONSTRUED. The domicile of the parents at
the time of birth, or what is termed the "domicile of origin," constitutes the domicile of an infant
until abandoned, or until the acquisition of a new domicile in a different place.
2. ID.; ID.; KINDS. Domicile is said to be of three kinds, that is, domicile by birth, domicile by
choice, and domicile by operation of law. The first is the common case of the place of birth or
domicilium originis; the second is that which is voluntarily acquired by a party or domicilium
proprio motu; the last which is consequential, as that of a wife arising from marriage, is
sometimes called domicilium necesarium.
3. ID.; ID.; DOMICILE BY OPERATION OF LAW; ACQUIRED BY MARRIAGE. When petitioner
contracted marriage in 1954 with then Rep. Marcos, by operation of law, not only international or
American but of our own enactment, she acquired her husband's domicile of origin in Batac,
Ilocos Norte and correspondingly lost her own domicile of origin in Tacloban City.
4. ID.; ID.; REQUISITES FOR CHANGE OF DOMICILE. To successfully effect a change of
domicile, one must demonstrate (a) an actual removal or an actual change of domicile, (b) a
bona fide intention of abandoning the former place of residence and establishing a new one, and
(c) acts which correspond with the purpose.
5. ID.; ID.; ONCE LOST CAN BE RECOVERED IN ACCORDANCE WITH LAW; NO AUTOMATIC
REVERSION OR REACQUISITION OF DOMICILE. Domicile once lost in accordance with law can
only be recovered likewise in accordance with law. However, we are here being titillated with the
possibility of an automatic reversion to or reacquisition of a domicile of origin after the
termination of the cause for its loss by operation of law. The majority agrees that since petitioner
lost her domicile of origin by her marriage, the termination of the marriage also terminates that
effect thereof. I am impressed by the ingeniousness of this theory which proves that, indeed,
necessity is the mother of inventions. Regretfully, I find some difficulty in accepting either the
logic or the validity of this argument.
6. ID.; ID.; VOLUNTARY ABANDONMENT OF DOMICILE DOES NOT AUTOMATICALLY RESTORE
DOMICILE OF ORIGIN. If a party loses his domicile of origin by obtaining a new domicile of
choice, he thereby voluntarily abandons the former in favor of the latter. If, thereafter, he
abandons that chosen domicile, he does not per se recover his original domicile unless, by
subsequent acts legally indicative thereof, he evinces his intent and desire to establish the same
as his new domicile, which is precisely what petitioner belatedly and, evidently just for purposes
of her candidacy, unsuccessfully tried to do. One's subsequent abandonment of his domicile of
choice cannot automatically restore his domicile of origin, not only because there is no legal
authority therefor but because it would be absurd. Pursued to its logical consequence, that
theory of ipso jure reversion would rule out the fact that said party could already very well have
obtained another domicile, either of choice or by operation of law, other than his domicile of
origin. Significantly and obviously for this reason, the Family Code, which the majority

inexplicably invokes, advisedly does not regulate this contingency since it would impinge on one's
freedom of choice.
7. ID.; ID.; ID.; CASE AT BAR. In the instant case, petitioner not only voluntarily abandoned
her domicile of choice (unless we assume that she entered into the marital state against her will)
but, on top of that, such abandonment was further affirmed through her acquisition of a new
domicile by operation of law. In fact, this is even a case of both voluntary and legal
abandonment of a domicile of origin. With much more reason, therefore, should we reject the
proposition that with the termination of her marriage in 1989, petitioner had supposedly per se
and ipso facto reacquired her domicile of origin which she lost in 1954. Otherwise, this would be
tantamount to saying that during the period of marital coverture, she was simultaneously in
possession and enjoyment of a domicile of origin which was only in a state of suspended
animation. LexLibris
8. ID.; ID.; DOMICILE BY OPERATION OF LAW; AFTER THE HUSBAND'S DEATH, THE WIFE HAS
THE RIGHT TO ELECT HER OWN DOMICILE. The American rule is likewise to the effect that
while after the husband's death the wife has the right to elect her own domicile, she nevertheless
retains the last domicile of her deceased husband until she makes an actual change. In the
absence of affirmative evidence, to the contrary, the presumption is that a wife's domicile or legal
residence follows that of her husband and will continue after his death.
9. ID.; FAMILY CODE; RIGHT AND POWER TO FIX FAMILY HOME CAN NOT AFFECT DOMICILE
FIXED BY LAW. I cannot appreciate the premises advanced in support of the majority's theory
based on Articles 68 and 69 of the Family Code. All that is of any relevance therein is that under
this new code, the right and power to fix the family domicile is now shared by the spouses. I
cannot perceive how that joint right, which in the first place was never exercised by the spouses,
could affect the domicile fixed by the law for petitioner in 1954 and, for her husband, long prior
thereto. It is true that a wife now has the coordinate power to determine the conjugal or family
domicile, but that has no bearing on this case. With the death of her husband, and each of her
children having gotten married and established their own respective domiciles, the exercise of
that joint power was and is no longer called for or material in the present factual setting of this
controversy. Instead, what is of concern in petitioner's case was the matter of her having
acquired or not her own domicile of choice.

10. POLITICAL LAW; ELECTIONS; ONE YEAR RESIDENCY REQUIREMENT; NOT MET BY
CANDIDATE'S RESIDENCY FOR SEVEN (7) MONTHS IMMEDIATELY PRECEDING ELECTION;
PREVIOUS RESIDENCY AT DOMICILE OF ORIGIN NOT COUNTED WHERE THE SAME WAS LOST
DUE TO MARRIAGE AND NOT REACQUIRED AFTER HUSBAND'S DEATH. In sum, petitioner
having lost Tacloban City as her domicile of origin since 1954 and not having automatically
reacquired any domicile therein, she cannot legally claim that her residency in the political

constituency of which it is a part continued since her birth up to the present. Respondent
commission was, therefore, correct in rejecting her pretension to that effect in her
amended/corrected certificate of candidacy, and in holding her to her admission in the original
certificate that she had actually resided in that constituency for only seven months prior to the
election.
DAVIDE, JR., J ., dissenting opinion:
1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; PROPER REMEDY FROM A
DECISION, ORDER OR RULING OF THE COMELEC. Under Section 7, Subdivision A, Article IX of
the Constitution, decisions, orders, or rulings of the COMELEC may be brought to this Court only
by the special civil action for certiorari under Rule 65 of the Rules of Court (Aratuc vs. COMELEC,
88 SCRA 251 [1979]; Dario vs. Mison, 176 SCRA 84 [1989]).
2. ID.; ID.; ID.; ID.; WRIT OF CERTIORARI; MAY BE GRANTED ONLY IN ABSENCE OR EXCESS
OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION. A writ of certiorari may be
granted only if the COMELEC has acted without or in excess of jurisdiction or with grave abuse of
discretion (Section 1, Rule 65, Rules of Court).
3. ID.; ID.; ID.; ID.; ID.; ID.; CASE AT BENCH, NOT A CASE FOR ISSUANCE OF WRIT. Since
the COMELEC has, undoubtedly, jurisdiction over the private respondent's petition, the only issue
left is whether it acted with grave abuse of discretion in disqualifying the petitioner. My careful
and meticulous perusal of the challenged resolution of 24 April 1995 of the COMELEC Second
Division and the En Banc resolution of 7 May 1995 discloses total absence of abuse of discretion,
much less grave abuse thereof. The resolution of the Second Division dispassionately and
objectively discussed in minute details the facts which established beyond cavil that herein
petitioner was disqualified as a candidate on the ground of lack of residence in the First
Congressional District of Leyte. It has not misapplied, miscomprehended, or misunderstood facts
or circumstances of substance pertinent to the issue of her residence.
4. POLITICAL LAW; ELECTIONS; DOMICILE; LOSS OR ABANDONMENT THEREOF IN CASE AT
BAR. I respectfully submit that the petitioner herself has provided the COMELEC, either by
admission or by documentary evidence, overwhelming proof of the loss or abandonment of her
domicile of origin, which is Tacloban City and not Tolosa, Leyte. Assuming that she decided to
live again in her domicile of origin, that became her second domicile of choice, where her stay,
unfortunately, was for only seven months before the day of the election. She was then
disqualified to be a candidate for the position of Representative of the First Congressional District
of Leyte. A holding to the contrary would be arbitrary.
5. ID.; ID.; ID.; DOMICILE OF CHOICE LOST BY OPERATION OF LAW BY MARRIAGE. It may
indeed be conceded that the petitioner's domicile of choice was either Tacloban City or Tolosa,
Leyte. Nevertheless, she lost it by operation of law sometime in May 1954 upon her marriage to

the then Congressman (later, President) Ferdinand E. Marcos. A domicile by operation of law is
that domicile which the law attributes to a person, independently of his own intention or actual
residence, as results from legal domestic relations as that of the wife arising from marriage (28
C.J.S. Domicile 7, 11). Under the governing law then, Article 110 of the Civil Code, her new
domicile or her domicile of choice was the domicile of her husband, which was Batac, Ilocos
Norte. Under common law, a woman upon her marriage loses her own domicile and, by
operation of law, acquires that of her husband, no matter where the wife actually lives or what
she believes or intends. Her domicile is fixed in the sense that it is declared to be the same as
his, and subject to certain limitations, he can change her domicile by changing his own (25 Am
Jur 2d Domicile 48, 37).
6. CIVIL LAW; FAMILY CODE; FAMILY DOMICILE; FIXING THEREOF, A JOINT DECISION OF
SPOUSES. It must, however, be pointed out that under Article 69 of the Family Code, the
fixing of the family domicile is no longer the sole prerogative of the husband, but is now a joint
decision of the spouses, and in case of disagreement the court shall decide. The said article uses
the term "family domicile," and not family residence, as "the spouses may have multiple
residences, and the wife may elect to remain in one of such residences, which may destroy the
duty of the spouses to live together and its corresponding benefits" (ALICIA V. SEMPIO-DIY,
Handbook on the Family Code of the Philippines, [1988], 102).
7. ID.; DOMICILE, DOMICILE BY OPERATION OF LAW; DEATH OF HUSBAND REVIVES POWER
OF WIFE TO ACQUIRE HER OWN DOMICILE; NO AUTOMATIC RESTORATION OF WOMAN'S
DOMICILE OF ORIGIN. The theory of automatic restoration of a woman's domicile of origin
upon the death of her husband, which the majority opinion adopts to overcome the legal effect
of the petitioner's marriage on her domicile, is unsupported by law and by jurisprudence. The
settled doctrine is that after the husband's death the wife has a right to elect her own domicile,
but she retains the last domicile of her husband until she makes an actual change (28 C.J.S.
Domicile 12, 27). Or, on the death of the husband, the power of the wife to acquire her own
domicile is revived, but until she exercises the power her domicile remains that of the husband at
the time of his death (25 Am Jur 2d Domicile 62, 45). Note that what is revived is not her
domicile of origin but her power to acquire her own domicile.
8. ID.; ID.; LOSS OF DOMICILE; MARRIAGE, NOT A GROUND. I find to be misplaced the
reliance by the majority opinion on Faypon vs. Quirino (96 Phil. 294 [1954]), and the subsequent
cases which established the principle that absence from original residence or domicile of origin to
pursue studies, practice one's profession, or engage in business in other states does not
constitute loss of such residence or domicile. So is the reliance on Section 117 of the Omnibus
Election Code which provides that transfer of residence to any other place by reason of one's
"occupation; profession; employment in private and public service; educational activities; work in
military or naval reservations; service in the army, navy or air force, the constabulary or national
police force; or confinement or detention in government institutions in accordance with law" is
not deemed as loss of original residence. Those cases and legal provision do not include marriage

of a woman. The reason for the exclusion is, of course, Article 110 of the Civil Code. If it were
the intention of this Court or of the legislature to consider the marriage of a woman as a
circumstance which would not operate as an abandonment of domicile (of origin or of choice),
then such cases and legal provision should have expressly mentioned the same.
9. ID.; ID.; ABANDONMENT THEREOF IN CASE AT BENCH. This Court should not accept as
gospel truth the self-serving claim of the petitioner in her affidavit that her "domicile or residence
of origin is Tacloban City," and that she "never intended to abandon this domicile or residence of
origin to which [she] always intended to return whenever absent." Such a claim of intention
cannot prevail over the effect of Article 110 of the Civil Code. Besides, the facts and
circumstances or the vicissitudes of the petitioner's life after her marriage in 1954 conclusively
establish that she had indeed abandoned her domicile of origin and had acquired a new one
animo et facto (KOSSUTH KENT KENNAN, A Treatise on Residence and Domicile, [1934], 214,
326). aisadc
10. REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY; SELF-SERVING STATEMENT,
WITHOUT PROBATIVE VALUE. Neither should this Court place complete trust on the
petitioner's claim that she "merely committed an honest mistake" in writing down the word
"seven" in the space provided for the residency qualification requirement in the certificate of
candidacy. Such a claim is self-serving and, in the light of the foregoing disquisitions, would be all
sound and fury signifying nothing. To me, she did not commit any mistake, honest or otherwise;
what she stated was the truth.
11. ID.; ID.; BURDEN OF PROOF; ONE WHO ASSERTS A FACT HAS THE BURDEN OF PROVING
IT. The majority opinion also disregards a basic rule in evidence that he who asserts a fact or
the affirmative of an issue has the burden of proving it (Imperial Victory Shipping Agency vs.
NLRC, 200 SCRA 178 [1991]; P.T . Cerna Corp. vs. Court of Appeals, 221 SCRA 19 [1993]).
Having admitted marriage to the then Congressman Marcos, the petitioner could not deny the
legal consequence thereof on the change of her domicile to that of her husband. The majority
opinion rules or at least concludes that "[b]y operation of law (domicilium necesarium), her legal
domicile at the time of her marriage automatically became Batac, Ilocos Norte." That conclusion
is consistent with Article 110 of the Civil Code. Since she is presumed to retain her deceased
husband's domicile until she exercises her revived power to acquire her own domicile, the burden
is upon her to prove that she has exercised her right to acquire her own domicile. She miserably
failed to discharge that burden. cdlex
ROMERO, J ., separate opinion:
POLITICAL LAW; ELECTIONS; RESIDENCE; DOMICILE BY OPERATION OF LAW; WIDOW NO
LONGER BOUND BY THE DOMICILE OF THE DEPARTED HUSBAND; WIDOW MAY CHOOSE
DOMICILE; ONE YEAR RESIDENCE REQUIREMENT, MET IN CASE AT BAR. Bearing in mind
that the term "resident" has been held to be synonymous with "domicile" for election purposes, it

is important to determine whether petitioner's domicile was in the First District of Leyte and if so,
whether she had resided there for at least a period of one year. Undisputed is her domicile of
origin, Tacloban, where her parents lived at the time of her birth. Depending on what theory one
adopts, the same may have been changed when she married Ferdinand E. Marcos, then
domiciled in Batac, by operation of law. Assuming it did, his death certainly released her from the
obligation to live with him at the residence fixed by him during his lifetime. What may confuse
the layman at this point is the fact that the term "domicile" may refer to "domicile of origin,"
"domicile of choice," or "domicile by operation of law," which subject we shall not belabor since it
has been amply discussed by the ponente and in the other separate opinions. A widow, like the
petitioner and others similarly situated, can no longer be bound by the domicile of the departed
husband, if at all she was before. Neither does she automatically revert to her domicile of origin,
but exercising free will, she may opt to reestablish her domicile of origin. In returning to
Tacloban and subsequently, to Barangay Olot, Tolosa, both of which are located in the First
District of Leyte, petitioner amply demonstrated by overt acts, her election of a domicile of
choice, in this case, a reversion to her domicile of origin. Added together, the time when she set
up her domicile in the two places sufficed to meet the one-year requirement to run as
Representative of the First District of Leyte.

VITUG, J., separate opinion:

1. CONSTITUTIONAL LAW; CONSTITUTIONAL PROVISIONS, GENERALLY MANDATORY IN
CHARACTER. Constitutional provisions must be taken to be mandatory in character unless,
either by express statement or by necessary implication, a different intention is manifest (see
Marcelino vs. Cruz, 121 SCRA 51).
2. ID.; COMELEC; WITH JURISDICTION OVER PRE-PROCLAMATION CONTROVERSIES. The
Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer "all
laws and regulations relative to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that,
there being nothing said to the contrary, should include its authority to pass upon the
qualification and disqualification prescribed by law of candidates to an elective office. Indeed,
pre-proclamation controversies are expressly placed under the COMELEC's jurisdiction to hear
and resolve (Art. IX, C, Sec. 3, Constitution).
3. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT ON THE OBSERVANCE OF ONE-YEAR
RESIDENCY REQUIREMENT OF THE COMELEC, GENERALLY UPHELD ON APPEAL. The matter
before us specifically calls for the observance of the constitutional one-year residency
requirement. This issue (whether or not there is here such compliance), to my mind, is basically a
question of fact or at least inextricably linked to such determination. The findings and judgment
of the COMELEC, in accordance with the long established rule and subject only to a number of
exceptions under the basic heading of "grave abuse of discretion," are not reviewable by this

Court. Using the above tests, I am not convinced that we can charge the COMELEC with having
committed grave abuse of discretion in its assailed resolution.
4. CIVIL LAW; DOMICILE; PLACE OF HABITUAL RESIDENCE. For civil law purposes, i.e., as
regards the exercise of civil rights and the fulfillment of civil obligations, the domicile of a natural
person is the place of his habitual residence (see Article 50, Civil Code).
5. POLITICAL LAW; ELECTIONS; DOMICILE SYNONYMOUS WITH RESIDENCE. In election
cases, the Court treats domicile and residence as synonymous terms, thus: '(t)he term 'residence'
as used in the election law is synonymous with 'domicile,' which imports not only an intention to
reside in a fixed place but also personal presence in that place, coupled with conduct indicative of
such intention.' 'Domicile' denotes a fixed permanent residence to which when absent for
business or pleasure, or for like reasons, one intends to return. . . . (Romualdez vs. Regional Trial
Court, Branch 7, Tacloban City [226 SCRA 408, 409])
6. ID.; ID.; ID.; ELEMENTS FOR CHANGE OF DOMICILE. Residence thus acquired, however,
may be lost by adopting another choice of domicile. In order, in turn, to acquire a new domicile
by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention
to remain there, and (3) an intention to abandon the old domicile. In other words, there must
basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at
the domicile of choice must be for an indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new domicile must be actual.
7. CONSTITUTIONAL LAW; COMELEC; ITS JURISDICTION ENDS WHEN JURISDICTION OF
ELECTORAL TRIBUNAL BEGINS. The COMELEC's jurisdiction, in the case of congressional
elections, ends when the jurisdiction of the Electoral Tribunal concerned begins. It signifies that
the protestee must have theretofore been duly proclaimed and has since become a "member" of
the Senate or the House of Representatives. LexLibris
8. ID.; ID.; PROCLAMATION OF CANDIDATE, NOT A MINISTERIAL FUNCTION. The question
can be asked on whether or not the proclamation of a candidate is just a ministerial function of
the Commission on Elections dictated solely on the number of votes cast in an election exercise. I
believe, it is not. A ministerial duty is an obligation the performance of which, being adequately
defined, does not allow the use of further judgment or discretion. The COMELEC, in its particular
case, is tasked with the full responsibility of ascertaining all the facts and conditions such as may
be required by law before a proclamation is properly done.
9. POLITICAL LAW; ELECTIONS; CANDIDATE WHO OBTAINED THE SECOND HIGHEST NUMBER
OF VOTES NOT NECESSARILY ENTITLED TO BE DECLARED WINNER OF ELECTIVE OFFICE
WHERE CANDIDATE WHO OBTAINED THE HIGHEST NUMBER OF VOTES IS LATER DECLARED
DISQUALIFIED OR NOT ELIGIBLE. I should like to next touch base on the applicability to this
case of Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas Pambansa Blg. 881.

I realize that in considering the significance of the law, it may be preferable to look for not so
much the specific instances they ostensibly would cover as the principle they clearly convey.
Thus, I will not scoff at the argument that it should be sound to say that votes cast in favor of
the disqualified candidate, whenever ultimately declared as such, should not be counted in his or
her favor and must accordingly be considered to be stray votes. The argument, nevertheless, is
far outweighed by the rationale of the now prevailing doctrine first enunciated in the case of
Topacio vs. Paredes (23 Phil. 238 [1912]) which, although later abandoned in Ticzon vs. Comelec
(103 SCRA 687 [1981]), and Santos vs. COMELEC (137 SCRA 740 [1985]), was restored, along
with the interim case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA 1
(1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, most recently, Benito
(235 SCRA 436 [1994]) rulings. Benito vs. Comelec was a unanimous decision penned by Justice
Kapunan and concurred in by Chief Justice Narvasa, Justices Feliciano, Padilla, Bidin, Regalado,
Davide, Romero, Melo, Quiason, Puno, Vitug and Mendoza (Justices Cruz and Bellosillo were on
official leave).
MENDOZA, J., separate opinion:
1. CONSTITUTIONAL LAW; COMELEC; WITHOUT POWER TO DISQUALIFY CANDIDATE FOR
LACK OF ELIGIBILITY. In my view the issue in this case is whether the Commission on
Elections has the power to disqualify candidates on the ground that they lack eligibility for the
office to which they seek to be elected. I think that it has none and that the qualifications of
candidates may be questioned only in the event they are elected, by filing a petition for quo
warranto or an election protest in the appropriate forum, not necessarily in the COMELEC but, as
in this case, in the House of Representatives Electoral Tribunal. That the parties in this case took
part in the proceedings in the COMELEC is of no moment. Such proceedings were unauthorized
and were not rendered valid by their agreement to submit their dispute to that body. To be sure,
there are provisions denominated for "disqualification," but they are not concerned with a
declaration of the ineligibility of a candidate. These provisions are concerned with the incapacity
(due to insanity, incompetence or conviction of an offense) of a person either to be a candidate
or to continue as a candidate for public office. There is also a provision for the denial or
cancellation of certificates of candidacy, but it applies only to cases involving false
representations as to certain matters required by law to be stated in the certificates. cdll
2. POLITICAL LAW; ELECTION LAWS; ABSENCE OF PROVISION FOR PRE-PROCLAMATION
CONTEST BASED ON INELIGIBILITY. The various election laws will be searched in vain for
authorized proceedings for determining a candidate's qualifications for an office before his
election. There are none in the Omnibus Election Code (B.P. Blg. 881), in the Electoral Reforms
Law of 1987 (R.A. No. 6646), or in the law providing for synchronized elections (R.A. No. 7166).
There are, in other words, no provisions for pre-proclamation contests but only election protests
or quo warranto proceedings against winning candidates.

3. ID.; ID.; ID.; REASONS. Three reasons may be cited to explain the absence of an
authorized proceeding for determining before election the qualifications of a candidate. First is
the fact that unless a candidate wins and is proclaimed elected, there is no necessity for
determining his eligibility for the office. Second is the fact that the determination of a candidate's
eligibility, e.g., his citizenship or, as in this case, his domicile, may take a long time to make,
extending beyond the beginning of the term of the office. Third is the policy underlying the
prohibition against pre-proclamation cases in elections for President, Vice President, Senators and
members of the House of Representatives. (R.A. No. 7166, 15) The purpose is to preserve the
prerogatives of the House of Representatives Electoral Tribunal and the other Tribunals as "sole
judges" under the Constitution of the election, returns and qualifications of members of Congress
or of the President and Vice President, as the case may be. By providing in 253 for the remedy
of quo warranto for determining an elected official's qualifications after the results of elections
are proclaimed, while being conspicuously silent about a pre-proclamation remedy based on the
same ground, the Omnibus Election Code, or OEC, by its silence underscores the policy of not
authorizing any inquiry into the qualifications of candidates unless they have been elected.
4. ID.; ID.; PETITION TO DISQUALIFY CANDIDATE FOR INELIGIBILITY FALLS WITHIN THE
JURISDICTION OF ELECTORAL TRIBUNAL. Montejo's petition before the COMELEC was not a
petition for cancellation of certificate of candidacy under 78 of the Omnibus Election Code, but
essentially a petition to declare private respondent ineligible. It is important to note this,
because, as will presently be explained, proceedings under 78 have for their purpose to
disqualify a person from being a candidate, whereas quo warranto proceedings have for their
purpose to disqualify a person from holding public office. Jurisdiction over quo warranto
proceedings involving members of the House of Representatives is vested in the Electoral
Tribunal of that body.

5. REMEDIAL LAW; SUPREME COURT; QUO WARRANTO; QUALIFICATION OF CANDIDATE

PASSED UPON ONLY AFTER PROCLAMATION OF CANDIDATE. In the only cases in which this
Court dealt with petitions for the cancellation of certificates of candidacy, the allegations were
that the respondent candidates had made false representations in their certificates of candidacy
with regard to their citizenship, age, or residence. But in the generality of cases in which this
Court passed upon the qualifications of respondents for office, this Court did so in the context of
election protests or quo warranto proceedings filed after the proclamation of the respondents or
protestees as winners.
6. POLITICAL LAW; ELECTIONS; ABSENCE OF PROVISION FOR PRE-PROCLAMATION CONTESTS
BASED ON INELIGIBILITY; CANNOT BE SUPPLIED BY A MERE RULE OF THE COMELEC. The
lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a
mere rule. Such an act is equivalent to the creation of a cause of action which is a substantive
matter which the COMELEC, in the exercise of its rulemaking power under Art. IX, A, 6 of the

Constitution, cannot do. It is noteworthy that the Constitution withholds from the COMELEC even
the power to decide cases involving the right to vote, which essentially involves an inquiry into
qualifications based on age, residence and citizenship of voters. (Art. IX-C, 2[3])
7. ID.; ID.; DISQUALIFICATION PROCEEDINGS DIFFERENTIATED FROM DECLARATION OF
INELIGIBILITY. The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility
into grounds for disqualification is contrary to the evident intention of the law. For not only in
their grounds but also in their consequences are proceedings for "disqualification" different from
those for a declaration of "ineligibility." "Disqualification" proceedings, as already stated, are
based on grounds specified in Sections 12 and 68 of the Omnibus Election Code and in 40 of
the Local Government Code and are for the purpose of barring an individual from becoming a
candidate or from continuing as a candidate for public office. In a word, their purpose is to
eliminate a candidate from the race either from the start or during its progress. "Ineligibility," on
the other hand, refers to the lack of the qualifications prescribed in the Constitution or the
statutes for holding public office and the purpose of the proceedings for declaration of ineligibility
is to remove the incumbent from office.
8. ID.; ID.; POSSESSION OF QUALIFICATIONS FOR PUBLIC OFFICE DOES NOT IMPLY THAT
CANDIDATE IS NOT DISQUALIFIED. That an individual possesses the qualifications for a public
office does not imply that he is not disqualified from becoming a candidate or continuing as a
candidate for a public office and vice versa. We have this sort of dichotomy in our Naturalization
Law. (C.A. No. 473) That an alien has the qualifications prescribed in 2 of the law does not
imply that he does not suffer from any of disqualifications provided in 4.
9. ID.; ID.; DISQUALIFICATION PROCEEDINGS BASED ON INELIGIBILITY; ELECTION PROTEST
OR ACTION FOR QUO WARRANTO, PROPER REMEDY. To summarize, the declaration of
ineligibility of a candidate may only be sought in an election protest or action for quo warranto
filed pursuant to 253 of the Omnibus Election Code within 10 days after his proclamation. With
respect to elective local officials (e.g., Governor, Vice Governor, members of the Sangguniang
Panlalawigan, etc.) such petition must be filed either with the COMELEC, the Regional Trial
Courts, or Municipal Trial Courts, as provided in Art. IX-C, 2(2) of the Constitution. In the case
of the President and Vice President, the petition must be filed with the Presidential Electoral
Tribunal (Art. VII, 4, last paragraph), and in the case of the Senators, with the Senate Electoral
Tribunal, and in the case of Congressmen, with the House of Representatives Electoral Tribunal.
(Art. VI, 17) There is greater reason for not allowing before the election the filing of
disqualification proceedings based on alleged ineligibility in the case of candidates for President,
Vice President, Senators and members of the House of Representatives, because of the same
policy prohibiting the filing of pre-proclamation cases against such candidates.
10. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; COMELEC WITHOUT
JURISDICTION TO ASSUME DISQUALIFICATION OF CANDIDATE BASED ON INELIGIBILITY.
For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-

009; that its proceedings in that case, including its questioned orders, are void; and that the
eligibility of petitioner Imelda Romualdez-Marcos for the office of Representative of the First
District of Leyte may only be inquired into by the HRET. Accordingly, I vote to grant the petition
and to annul the proceedings of the Commission on Elections in SPA No. 95-009, including its
questioned orders dated April 24, 1995, May 7, 1995, May 11, 1995 and May 25, 1995, declaring
petitioner Imelda Romualdez-Marcos ineligible and ordering her proclamation as Representative
of the First District of Leyte suspended. To the extent that Rule 25 of the COMELEC Rules of
Procedure authorizes proceedings for the disqualification of candidates on the ground of
ineligibility for the office, it should be considered void. LLjur

DECISION

KAPUNAN, J p:
A constitutional provision should be construed as to give it effective operation and suppress the
mischief at which it is aimed. 1 The 1987 Constitution mandates that an aspirant for election to
the House of Representatives be "a registered voter in the district in which he shall be elected,
and a resident thereof for a period of not less than one year immediately preceding the election."
2 The mischief which this provision reproduced verbatim from the 1973 Constitution seeks
to prevent is the possibility of a "stranger or newcomer unacquainted with the conditions and
needs of a community and not identified with the latter, from an elective office to serve that
community." 3
Petitioner, Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of
Representative of the First District of Leyte with the Provincial Election Supervisor on March 8,
1995, providing the following information in item no. 8: 4
RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED
IMMEDIATELY PRECEDING THE ELECTION: ______ Years and seven Months.
On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the
First District of Leyte and a candidate for the same position, filed a "Petition for Cancellation and
Disqualification" 5 with the Commission on Elections alleging that petitioner did not meet the
constitutional requirement for residency. In his petition, private respondent contended that Mrs.
Marcos lacked the Constitution's one year residency requirement for candidates to the House of
representatives on the evidence of declarations made by her in Voter Registration Record 94-No.
3349772 6 and in her Certificate of Candidacy. He prayed that "an order be issued declaring
(petitioner) disqualified and canceling the certificate of candidacy." 7

On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy, changing the
entry "seven" months to "since childhood" in item no. 8 of the amended certificate. 8 On the
same day, the Provincial Election Supervisor of Leyte informed petitioner that:
[T]his office cannot receive or accept the aforementioned Certificate of
Candidacy on the ground that it is filed out of time, the deadline for the filing
of the same having already lapsed on March 20, 1995. The
Corrected/Amended Certificate of Candidacy should have been filed on or
before the March 20, 1995 deadline. 9
Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with
the COMELEC's Head Office in Intramuros, Manila on March 31, 1995. Her Answer to private
respondent's petition in SPA No. 95-009 was likewise filed with the head office on the same
day. In said Answer, petitioner averred that the entry of the word "seven" in her original
Certificate of Candidacy was the result of an "honest misinterpretation" 10 which she sought
to rectify by adding the words "since childhood" in her Amended/Corrected Certificate of
Candidacy and that "she has always maintained Tacloban City as her domicile or residence."
11 Impugning respondent's motive in filing the petition seeking her disqualification, she
noted that:
When respondent (petitioner herein,) announced that she was intending to
register as a voter in Tacloban City and run for Congress in the First District of
Leyte, petitioner immediately opposed her intended registration by writing a
letter stating that "she is not a resident of said city but of Barangay Olot,
Tolosa, Leyte. After respondent had registered as a voter in Tolosa following
completion of her six month actual residence therein, petitioner filed a petition
with the COMELEC to transfer the town of Tolosa from the First District to the
Second District and pursued such a move up to the Supreme Court, his
purpose being to remove respondent as petitioner's opponent in the
congressional election in the First District. He also filed a bill, along with other
Leyte Congressmen, seeking the creation of another legislative district to
remove the town of Tolosa out of the First District, to achieve his purpose.
However, such bill did not pass the Senate. Having failed on such moves,
petitioner now filed the instant petition for the same objective, as it is obvious
that he is afraid to submit along with respondent for the judgment and verdict
of the electorate of the First District of Leyte in an honest, orderly, peaceful,
free and clean elections on May 8, 1995. 12
On April 24, 1995, the Second Division of the Commission on Elections (COMELEC),
by a vote of 2 to 1, 13 came up with a Resolution 1) finding private respondent's Petition for
Disqualification in SPA 95-009 meritorious; 2) striking off petitioner's Corrected/Amended
Certificate of Candidacy of March 31, 1995; and 3) canceling her original Certificate

Candidacy. 14 Dealing with two primary issues, namely, the validity of amending the original
Certificate of Candidacy after the lapse of the deadline for filing certificates of candidacy, and
petitioner's compliance with the one year residency requirement, the Second Division held:

"Respondent raised the affirmative defense in her Answer that the printed
word "Seven" (months) was a result of an "honest misinterpretation or honest
mistake" on her part and, therefore, an amendment should subsequently be
allowed. She averred that she thought that what was asked was her "actual
and physical" presence in Tolosa and not residence of origin or domicile in the
First Legislative District, to which she could have responded "since childhood."
In an accompanying affidavit, she stated that her domicile is Tacloban City, a
component of the First District, to which she always intended to return
whenever absent and which she has never abandoned. Furthermore, in her
memorandum, she tried to discredit petitioner's theory of disqualification by
alleging that she has been a resident of the First Legislative District of Leyte
since childhood, although she only became a resident of the Municipality of
Tolosa for seven months. She asserts that she has always been a resident of
Tacloban City, a component of the First District, before coming to the
Municipality of Tolosa.
Along this point, it is interesting to note that prior to her registration in Tolosa,
respondent announced that she would be registering in Tacloban City so that
she can be a candidate for the District. However, this intention was rebuffed
when petitioner wrote the Election Officer of Tacloban not to allow respondent
since she is a resident of Tolosa and not Tacloban. She never disputed this
claim and instead implicitly acceded to it by registering in Tolosa.
This incident belies respondent's claim of 'honest misinterpretation or honest
mistake.' Besides, the Certificate of Candidacy only asks for RESIDENCE. Since
on the basis of her Answer, she was quite aware of 'residence of origin' which
she interprets to be Tacloban City, it is curious why she did not cite Tacloban
City in her Certificate of Candidacy. Her explanation that she thought what was
asked was her actual and physical presence in Tolosa is not easy to believe
because there is none in the question that insinuates about Tolosa. In fact,
item no. 8 in the Certificate of Candidacy speaks clearly of 'Residency in the
CONSTITUENCY where I seek to be elected immediately preceding the
election.' Thus, the explanation of respondent fails to be persuasive. prLL
From the foregoing, respondent's defense of an honest mistake or
misinterpretation, therefore, is devoid of merit.

To further buttress respondent's contention that an amendment may be made,

she cited the case of Alialy v. COMELEC (2 SCRA 957). The reliance of
respondent on the case of Alialy is misplaced. The case only applies to the
'inconsequential deviations which cannot affect the result of the election, or
deviations from provisions intended primarily to secure timely and orderly
conduct of elections.' The Supreme Court in that case considered the
amendment only as a matter of form. But in the instant case, the amendment
cannot be considered as a matter of form or an inconsequential deviation. The
change in the number of years of residence in the place where respondent
seeks to be elected is a substantial matter which determines her qualification
as a candidacy, specially those intended to suppress, accurate material
representation in the original certificate which adversely affects the filer. To
admit the amended certificate is to condone the evils brought by the shifting
minds of manipulating candidate, to the detriment of the integrity of the
election.
Moreover, to allow respondent to change the seven (7) month period of her
residency in order to prolong it by claiming it was 'since childhood' is to allow
an untruthfulness to be committed before this Commission. The arithmetical
accuracy of the 7 months residency the respondent indicated in her certificate
of candidacy can be gleaned from her entry in her Voter's Registration Record
accomplished on January 28, 1995 which reflects that she is a resident of Brgy.
Olot, Tolosa, Leyte for 6 months at the time of the said registration (Annex A,
Petition). Said accuracy is further buttressed by her letter to the election officer
of San Juan, Metro Manila, dated August 24, 1994, requesting for the
cancellation of her registration in the Permanent List of Voters thereat so that
she can be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. The dates
of these three (3) different documents show the respondent's consistent
conviction that she has transferred her residence to Olot, Tolosa, Leyte from
Metro Manila only for such limited period of time, starting in the last week of
August 1994 which on March 8, 1995 will only sum up to 7 months. The
Commission, therefore, cannot be persuaded to believe in the respondent's
contention that it was an error.
xxx xxx xxx
Based on these reasons the Amended/Corrected Certificate of Candidacy
cannot be admitted by this Commission.
xxx xxx xxx

Anent the second issue, and based on the foregoing discussion, it is clear that
respondent has not complied with the one year residency requirement of the
Constitution.
In election cases, the term 'residence' has always been considered as
synonymous with 'domicile' which imports not only the intention to reside in a
fixed place but also personal presence in that place, coupled with conduct
indicative of such intention. Domicile denotes a fixed permanent residence to
which when absent for business or pleasure, or for like reasons, one intends to
return. (Perfecto Faypon vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. RTCTacloban, 226 SCRA 408). In respondent's case, when she returned to the
Philippines in 1991, the residence she chose was not Tacloban but San Juan,
Metro Manila. Thus, her animus revertendi is pointed to Metro Manila and not
Tacloban.
This Division is aware that her claim that she has been a resident of the First
District since childhood is nothing more than to give her a color of qualification
where she is otherwise constitutionally disqualified. It cannot hold ground in
the face of the facts admitted by the respondent in her affidavit. Except for the
time that she studied and worked for some years after graduation in Tacloban
City, she continuously lived in Manila. In 1959, after her husband was elected
Senator, she lived and resided in San Juan, Metro Manila where she was a
registered voter. In 1965, she lived in San Miguel, Manila where she was again
a registered voter. In 1978, she served as member of the Batasang Pambansa
as the representative of the City of Manila and later on served as the Governor
of Metro Manila. She could not have served these positions if she had not been
a resident of the City of Manila. Furthermore, when she filed her certificate of
candidacy for the office of the President in 1992, she claimed to be a resident
of San Juan, Metro Manila. As a matter of fact on August 24, 1994, respondent
wrote a letter with the election officer of San Juan, Metro Manila requesting for
the cancellation of her registration in the permanent list of voters that she may
be re-registered or transferred to Barangay Olot, Tolosa, Leyte. These facts
manifest that she could not have been a resident of Tacloban City since
childhood up to the time she filed her certificate of candidacy because she
became a resident of many places, including Metro Manila. This debunks her
claim that prior to her residence in Tolosa, Leyte, she was a resident of the
First Legislative District of Leyte since childhood.
In this case, respondent's conduct reveals her lack of intention to make
Tacloban her domicile. She registered as a voter in different places and on a
several occasions declared that she was a resident of Manila. Although she
spent her school days in Tacloban, she is considered to have abandoned such

place when she chose to stay and reside in other different places. In the case
of Romualdez vs. RTC (226 SCRA 408) the Court explained how one acquires a
new domicile by choice. There must concur: (1) residence or bodily presence in
the new locality; (2) intention to remain there; and (3) intention to abandon
the old domicile. In other words there must basically be animus manendi with
animus non revertendi. When respondent chose to stay in Ilocos and later on
in Manila, coupled with her intention to stay there by registering as a voter
there and expressly declaring that she is a resident of that place, she is
deemed to have abandoned Tacloban City, where she spent her childhood and
school days, as her place of domicile.
Pure intention to reside in that place is not sufficient, there must likewise be
conduct indicative of such intention. Respondent's statements to the effect that
she has always intended to return to Tacloban, without the accompanying
conduct to prove that intention, is not conclusive of her choice of residence.
Respondent has not presented any evidence to show that her conduct, one
year prior the election, showed intention to reside in Tacloban. Worse, what
was evident was that prior to her residence in Tolosa, she had been a resident
of Manila.
It is evident from these circumstances that she was not a resident of the First
District of Leyte "since childhood."
To further support the assertion that she could have not been a resident of the
First District of Leyte for more than one year, petitioner correctly pointed out
that on January 28, 1995; respondent registered as a voter at precinct No. 18A of Olot, Tolosa, Leyte. In doing so, she placed in her Voter Registration
Record that she resided in the municipality of Tolosa for a period of six
months. This may be inconsequential as argued by the respondent since it
refers only to her residence in Tolosa, Leyte. But her failure to prove that she
was a resident of the First District of Leyte prior to her residence in Tolosa
leaves nothing but a convincing proof that she had been a resident of the
district for six months only." 15
In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC
en banc denied petitioner's Motion for Reconsideration 16 of the April 24, 1995 Resolution
declaring her not qualified to run for the position of Member of the House of Representatives
for the First Legislative District of Leyte. 17 The Resolution tersely stated:

After deliberating on the Motion for Reconsideration, the Commission

RESOLVED to DENY it, no new substantial matters having been raised therein

to warrant re-examination of the resolution granting the petition for

disqualification. 18
On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's
proclamation should the results of the canvass show that she obtained the highest number of
votes in the congressional elections in the First District of Leyte. On the same day, however,
the COMELEC reversed itself and issued a second Resolution directing that the proclamation
of petitioner be suspended in the event that she obtains the highest number of votes. 19
In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the
overwhelming winner of the elections for the congressional seat in the First District of Leyte
held May 8, 1995 based on the canvass completed by the Provincial Board of Canvassers on
May 14, 1995. Petitioner alleged that the canvass showed that she obtained a total of 70,471
votes compared to the 36,833 votes received by Respondent Montejo. A copy of said
Certificate of Canvass was annexed to the Supplemental Petition. LLcd
On account of the Resolutions disqualifying petitioner from running for the congressional seat of
the First District of Leyte and the public respondent's Resolution suspending her proclamation,
petitioner comes to this court for relief.
Petitioner raises several issues in her Original and Supplemental Petitions. The principal issues
may be classified into two general areas:
I. The Issue of Petitioner's qualifications
Whether or not petitioner was a resident, for election purposes, of the First
District of Leyte for a period of one year at the time of the May 8, 1995
elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly exercised its jurisdiction in disqualifying
petitioner outside the period mandated by the Omnibus Election Code for
disqualification cases under Article 78 of the said Code.
b) After the Elections
Whether or not the House of Representatives Electoral Tribunal assumed
exclusive jurisdiction over the question of petitioner's qualifications after the
May 8, 1995 elections.

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

For political purposes the concepts of residence and domicile are dictated by the
peculiar criteria of political laws. As these concepts have evolved in our election law, what
has clearly and unequivocally emerged is the fact that residence for election purposes is used
synonymously with domicile.
In Nuval vs. Guray, 24 the Court held that "the term residence . . . is synonymous
with domicile which imports not only intention to reside in a fixed place, but also personal
presence in that place, coupled with conduct indicative of such intention." 25 Larena vs.
Teves 26 reiterated the same doctrine in a case involving the qualifications of the respondent
therein to the post of Municipal President of Dumaguete, Negros Oriental. Faypon vs.
Quirino, 27 held that the absence from residence to pursue studies or practice a profession
or registration as a voter other than in the place where one is elected does not constitute
loss of residence. 28 So settled is the concept (of domicile) in our election law that in these
and other election law cases, this Court has stated that the mere absence of an individual
from his permanent residence without the intention to abandon it does not result in a loss or
change of domicile.
The deliberations of the 1987 Constitution on the residence qualification for certain
elective positions have placed beyond doubt the principle that when the Constitution speaks
of "residence" in election law, it actually means only "domicile" to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the 1971
Constitutional Convention, there was an attempt to require residence in the
place not less than one year immediately preceding the day of the elections.
So my question is: What is the Committee's concept of residence of a
candidate for the legislature? Is it actual residence or is it the concept of
domicile or constructive residence?
Mr. Davide: Madame President, insofar as the regular members of the National
Assembly are concerned, the proposed section merely provides, among others,
'and a resident thereof,' that is, in the district for a period of not less than one
year preceding the day of the election. This was in effect lifted from the 1973
Constitution, the interpretation given to it was domicile. 29
xxx xxx xxx
Mrs. Rosario Braid: The next question is on Section 7, page 2. I think
Commissioner Nolledo has raised the same point that "resident" has been
interpreted at times as a matter of intention rather than actual residence.
Mr. De los Reyes: Domicile

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

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

POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot, Tolosa, Leyte
8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED
IMMEDIATELY PRECEDING THE ELECTION: ______ Years and Seven Months.
Having been forced by private respondent to register in her place of actual residence
in Leyte instead of petitioner's claimed domicile, it appears that petitioner had jotted down
her period of stay in her actual residence in a space which required her period of stay in her
legal residence or domicile. The juxtaposition of entries in Item 7 and Item 8 the first
requiring actual residence and the second requiring domicile coupled with the
circumstances surrounding petitioner's registration as a voter in Tolosa obviously led to her
writing down an unintended entry for which she could be disqualified. This honest mistake
should not, however, be allowed to negate the fact of residence in the First District if such
fact were established by means more convincing than a mere entry on a piece of paper. dctai
We now proceed to the matter of petitioner's domicile.
In support of its asseveration that petitioner's domicile could not possibly be in the
First District of Leyte, the Second Division of the COMELEC, in its assailed Resolution of April
24, 1995 maintains that "except for the time when (petitioner) studied and worked for some
years after graduation in Tacloban City, she continuously lived in Manila." The Resolution
additionally cites certain facts as indicative of the fact that petitioner's domicile ought to be
any place where she lived in the last few decades except Tacloban, Leyte. First, according to
the Resolution, petitioner, in 1959, resided in San Juan, Metro Manila where she was also
registered voter. Then, in 1965, following the election of her husband to the Philippine
presidency, she lived in San Miguel, Manila where she registered as a voter. In 1978 and
thereafter, she served as a member of the Batasang Pambansa and Governor of Metro
Manila. "She could not, have served these positions if she had not been a resident of Metro
Manila," the COMELEC stressed. Here is where the confusion lies.
We have stated, many times in the past, that an individual does not lose his domicile
even if he has lived and maintained residences in different places. Residence, it bears
repeating, implies a factual relationship to a given place for various purposes. The absence
from legal residence or domicile to pursue a profession, to study or to do other things of a
temporary or semi-permanent nature does not constitute loss of residence. Thus, the
assertion by the COMELEC that "she could not have been a resident of Tacloban City since
childhood up to the time she filed her certificate of candidacy because she became a resident
of many places" flies in the face of settled jurisprudence in which this Court carefully made
distinctions between (actual) residence and domicile for election law purposes. In Larena vs.
Teves, 33 supra, we stressed:
[T]his court is of the opinion and so holds that a person who has his own
house wherein he lives with his family in a municipality without having ever
had the intention of abandoning it, and without having lived either alone or

with his family in another municipality, has his residence in the former
municipality, notwithstanding his having registered as an elector in the other
municipality in question and having been a candidate for various insular and
provincial positions, stating every time that he is a resident of the latter
municipality.
More significantly, in Faypon vs. Quirino, 34 we explained that:
A citizen may leave the place of his birth to look for "greener pastures," as the
saying goes, to improve his lot, and that, of course includes study in other
places, practice of his avocation, or engaging in business. When an election is
to be held, the citizen who left his birthplace to improve his lot may desire to
return to his native town to cast his ballot but for professional or business
reasons, or for any other reason, he may not absent himself from his
professional or business activities; so there he registers himself as voter as he
has the qualifications to be one and is not willing to give up or lose the
opportunity to choose the officials who are to run the government especially in
national elections. Despite such registration, the animus revertendi to his
home, to his domicile or residence of origin has not forsaken him. This may be
the explanation why the registration of a voter in a place other than his
residence of origin has not been deemed sufficient to constitute abandonment
or loss of such residence. It finds justification in the natural desire and longing
of every person to return to his place of birth. This strong feeling of
attachment to the place of one's birth must be overcome by positive proof of
abandonment for another.
From the foregoing, it can be concluded that in its above-cited statements supporting
its proposition that petitioner was ineligible to run for the position of Representative of the
First District of Leyte, the COMELEC was obviously referring to petitioner's various places of
(actual) residence, not her domicile. In doing so, it not only ignored settled jurisprudence on
residence in election law and the deliberations of the constitutional commission but also the
provisions of the Omnibus Election Code (B.P. 881). 35
What is undeniable, however, are the following set of facts which establish the fact
of petitioner's domicile, which we lift verbatim from the COMELEC's Second Division's assailed
Resolution: 36
In or about 1938 when respondent was a little over 8 years old, she
established her domicile in Tacloban, Leyte (Tacloban City). She studied in the
Holy Infant Academy in Tacloban from 1938 to 1949 when she graduated from
high school. She pursued her college studies in St. Paul's College, now Divine
Word University in Tacloban, where she earned her degree in Education.
Thereafter, she taught in the Leyte Chinese School, still in Tacloban City. In

1952 she went to Manila to work with her cousin, the late speaker Daniel Z.
Romualdez in his office in the House of Representatives. In 1954, she married
ex-President Ferdinand E. Marcos when he was still a congressman of Ilocos
Norte and registered there as a voter. When her husband was elected Senator
of the Republic in 1959, she and her husband lived together in San Juan, Rizal
where she registered as a voter. In 1965, when her husband was elected
President of the Republic of the Philippines, she lived with him in Malacaang
Palace and registered as a voter in San Miguel, Manila.

Second, domicile of origin is not easily lost. To successfully effect a change of

domicile, one must demonstrate: 37
1. An actual removal or an actual change of domicile;
2. A bona fide intention of abandoning the former place of residence and
establishing a new one; and
3. Acts which correspond with the purpose.

[I]n February 1986 (she claimed that) she and her family were abducted and
kidnapped to Honolulu, Hawaii. In November 1991, she came home to Manila.
In 1992, respondent ran for election as President of the Philippines and filed
her Certificate of Candidacy wherein she indicated that she is a resident and
registered voter of San Juan, Metro Manila.
Applying the principles discussed to the facts found by COMELEC, what is inescapable is that
petitioner held various residences for different purposes during the past four decades. None of
these purposes unequivocally point to an intention to abandon her domicile of origin in Tacloban,
Leyte. Moreover, while petitioner was born in Manila, as a minor she naturally followed the
domicile of her parents. She grew up in Tacloban, reached her adulthood there and eventually
established residence in different parts of the country for various reasons. Even during her
husband's presidency, at the height of the Marcos Regime's powers, petitioner kept her close ties
to her domicile of origin by establishing residences in Tacloban, celebrating her birthdays and
other important personal milestones in her home province, instituting well-publicized projects for
the benefit of her province and hometown, and establishing a political power base where her
siblings and close relatives held positions of power either through the ballot or by appointment,
always with either her influence or consent. These well-publicized ties to her domicile of origin
are part of the history and lore of the quarter century of Marcos power in our country. Either they
were entirely ignored in the COMELEC's Resolutions, or the majority of the COMELEC did not
know what the rest of the country always knew: the fact of petitioner's domicile in Tacloban,
Leyte.
Private respondent in his Comment, contends that Tacloban was not petitioner's
domicile of origin because she did not live there until she was eight years old. He avers that
after leaving the place in 1952, she "abandoned her residency (sic) therein for many years
and . . . (could not) re-establish her domicile in said place by merely expressing her intention
to live there again." We do not agree.
First, a minor follows the domicile of his parents. As domicile, once acquired is
retained until a new one is gained, it follows that in spite of the fact of petitioner's being born
in Manila, Tacloban, Leyte was her domicile of origin by operation of law. This domicile was
not established only when she reached the age of eight years old, when her father brought
his family back to Leyte contrary to private respondent's averments.

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

In this connection, it cannot be correctly argued that petitioner lost her domicile of
origin by operation of law as a result of her marriage to the late President Ferdinand E.
Marcos in 1954. For there is a clearly established distinction between the Civil Code concepts
of "domicile" and "residence." 39 The presumption that the wife automatically gains the
husband's domicile by operation of law upon marriage cannot be inferred from the use of the
term "residence" in Article 110 of the Civil Code because the Civil Code is one area where the
two concepts are well delineated. Dr. Arturo Tolentino, writing on this specific area explains:
In the Civil Code, there is an obvious difference between domicile and
residence. Both terms imply relations between a person and a place; but in
residence, the relation is one of fact while in domicile it is legal or juridical,
independent of the necessity of physical presence. 40
Article 110 of the Civil Code provides:
ARTICLE 110. The husband shall fix the residence of the family. But the court
may exempt the wife from living with the husband if he should live abroad
unless in the service of the Republic.

A survey of jurisprudence relating to Article 110 or to the concepts of domicile or

residence as they affect the female spouse upon marriage yields nothing which would
suggest that the female spouse automatically loses her domicile of origin in favor of the
husband's choice of residence upon marriage.
Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889
which states: LexLib
La mujer esta obligada a seguir a su marido donde quiera que fije su
residencia. Los Tribunales, sin embargo, podran con justa causa eximirla de
esta obligacion cuando el marido transende su residencia a ultramar o' a pais
extranjero.
Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article, which
means wherever (the husband) wishes to establish residence. This part of the article clearly
contemplates only actual residence because it refers to a positive act of fixing a family home or
residence. Moreover, this interpretation is further strengthened by the phrase " cuando el marido
translade su residencia" in the same provision which means, "when the husband shall transfer his
residence," referring to another positive act of relocating the family to another home or place of
actual residence. The article obviously cannot be understood to refer to domicile which is a fixed,
fairly-permanent concept when it plainly connotes the possibility of transferring from one place to
another not only once, but as often as the husband may deem fit to move his family, a
circumstance more consistent with the concept of actual residence.
The right of the husband to fix the actual residence is in harmony with the intention of the law to
strengthen and unify the family, recognizing the fact that the husband and the wife bring into the
marriage different domiciles (of origin). This difference could, for the sake of family unity, be
reconciled only by allowing the husband to fix a single place of actual residence.
Very significantly, Article 110 of the Civil Code is found under Title V under the
heading: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately
preceding Article 110 is Article 109 which obliges the husband and wife to live together, thus:
ARTICLE 109. The husband and wife are obligated to live together, observe
mutual respect and fidelity and render mutual help and support.
The duty to live together can only be fulfilled if the husband and wife are physically
together. This takes into account the situations where the couple has many residences (as in
the case of petitioner). If the husband has to stay in or transfer to any one of their
residences, the wife should necessarily be with him in order that they may "live together."
Hence, it is illogical to conclude that Art. 110 refers to "domicile" and not to "residence."
Otherwise, we shall be faced with a situation where the wife is left in the domicile while the

husband, for professional or other reasons, stays in one of their (various) residences. As Dr.
Tolentino further explains:
Residence and Domicile. Whether the word "residence" as used with
reference to particular matters is synonymous with "domicile" is a question of
some difficulty, and the ultimate decision must be made from a consideration
of the purpose and intent with which the word is used. Sometimes they are
used synonymously, at other times they are distinguished from one another.
xxx xxx xxx
Residence in the civil law is a material fact, referring to the physical presence
of a person in a place. A person can have two or more residences, such as a
country residence and a city residence. Residence is acquired by living in a
place; on the other hand, domicile can exist without actually living in the place.
The important thing for domicile is that, once residence has been established
in one place, there be an intention to stay there permanently, even if residence
is also established in some other place. 41
In fact, even the matter of a common residence between the husband and the wife
during the marriage is not an iron-clad principle. In cases applying the Civil Code on the
question of a common matrimonial residence, our jurisprudence has recognized certain
situations 42 where the spouses could not be compelled to live with each other such that the
wife is either allowed to maintain a residence different from that of her husband or, for
obviously practical reasons, revert to her original domicile (apart from being allowed to opt
for a new one). In De la Vina vs. Villareal 43 this Court held that "[a] married woman may
acquire a residence or domicile separate from that of her husband during the existence of the
marriage where the husband has given cause for divorce." 44 Note that the Court allowed
the wife either to obtain new residence or to choose a new domicile in such an event. In
instances where the wife actually opts, under the Civil Code, to live separately from her
husband either by taking new residence or reverting to her domicile of origin, the Court has
held that the wife could not be compelled to live with her husband on pain of contempt. In
Arroyo vs. Vasques de Arroyo 45 the Court held that:
Upon examination of the authorities, we are convinced that it is not within the
province of the courts at this country to attempt to compel one of the spouses
to cohabit with, and render conjugal rights to, the other. Of course where the
property rights of one of the pair are invaded, an action for restitution of such
rights can be maintained. But we are disinclined to sanction the doctrine that
an order, enforcible (sic) by process of contempt, may be entered to compel
the restitution of the purely personal right of consortium. At best such an order
can be effective for no other purpose than to compel the spouses to live under

the same roof; and the experience of those countries where the courts of
justice have assumed to compel the cohabitation of married people shows that
the policy of the practice is extremely questionable. Thus in England, formerly
the Ecclesiastical Court entertained suits for the restitution of conjugal rights at
the instance of either husband or wife; and if the facts were found to warrant
it, that court would make a mandatory decree, enforceable by process of
contempt in case of disobedience, requiring the delinquent party to live with
the other and render conjugal rights. Yet this practice was sometimes criticized
even by the judges who felt bound to enforce such orders, and in Weldon v.
Weldon (9 P.D. 52), decided in 1883, Sir James Hannen, President in the
Probate, Divorce and Admiralty Division of the High Court of Justice, expressed
his regret that the English law on the subject was not the same as that which
prevailed in Scotland, where a decree of adherence, equivalent to the decree
for the restitution of conjugal rights in England, could be obtained by the
injured spouse, but could not be enforced by imprisonment. Accordingly, in
obedience to the growing sentiment against the practice, the Matrimonial
Causes Act (1884) abolished the remedy of imprisonment; though a decree for
the restitution of conjugal rights can still be procured, and in case of
disobedience may serve in appropriate cases as the basis of an order for the
periodical payment of a stipend in the character of alimony.
In the voluminous jurisprudence of the United States, only one court, so far as
we can discover, has ever attempted to make a preemptory order requiring
one of the spouses to live with the other; and that was in a case where a wife
was ordered to follow and live with her husband, who had changed his
domicile to the City of New Orleans. The decision referred to (Bahn vs. Darby,
36 La. Ann., 70) was based on a provision of the Civil Code of Louisiana similar
to Article 56 of the Spanish Civil Code. It was decided many years ago, and the
doctrine evidently has not been fruitful even in the State of Louisiana. In other
states of the American Union the idea of enforcing cohabitation by process of
contempt is rejected. (21 Cyc., 1148)
In a decision of January 2, 1909, the Supreme Court of Spain appears to have
affirmed an order of the Audiencia Territorial de Valladolid requiring a wife to
return to the marital domicile, and in the alternative, upon her failure to do so,
to make a particular disposition of certain money and effects then in her
possession and to deliver to her husband, as administrator of the ganancial
property, all income, rents, and interest which might accrue to her from the
property which she had brought to the marriage. (113 Jur. Civ., pp. 1, 11) But
it does not appear that this order for the return of the wife to the marital
domicile was sanctioned by any other penalty than the consequences that
would be visited upon her in respect to the use and control of her property;

and it does not appear that her disobedience to that order would necessarily
have been followed by imprisonment for contempt.

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

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

and proceeding from our discussion pointing out specific situations where the female spouse
either reverts to her domicile of origin or chooses a new one during the subsistence of the
marriage, it would be highly illogical for us to assume that she cannot regain her original
domicile upon the death of her husband absent a positive act of selecting a new one where
situations exist within the subsistence of the marriage itself where the wife gains a domicile
different from her husband.

refuse to render judgments merely on the ground of having failed to reach a decision within
a given or prescribed period. cdll

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

As to the House of Representatives Electoral Tribunal's supposed assumption of

jurisdiction over the issue of petitioner's qualifications after the May 8, 1995 elections, suffice
it to say that HRET's jurisdiction as the sole judge of all contests relating to the elections,
returns and qualifications of members of Congress begins only after a candidate has become
a member of the House of Representatives. 53 Petitioner not being a member of the House
of Representatives, it is obvious that the HRET at this point has no jurisdiction over the
question.

II. The jurisdictional issue

Petitioner alleges that the jurisdiction of the COMELEC had already lapsed
considering that the assailed resolutions were rendered on April 24, 1995, fourteen (14) days
before the election in violation of Section 78 of the Omnibus Election Code. 48 Moreover,
petitioner contends that it is the House of Representatives Electoral Tribunal and not the
COMELEC which has jurisdiction over the election of members of the House of
Representatives in accordance with Article VI, Sec. 17 of the Constitution. This is untenable.
It is a settled doctrine that a statute requiring rendition of judgment within a
specified time is generally construed to be merely directory, 49 "so that non-compliance with
them does not invalidate the judgment on the theory that if the statute had intended such
result it would have clearly indicated it." 50 The difference between a mandatory and a
directory provision is often made on grounds of necessity. Adopting the same view held by
several American authorities, this court in Marcelino v. Cruz held that: 51
The difference between a mandatory and directory provision is often
determined on grounds of expediency, the reason being that less injury results
to the general public by disregarding than enforcing the letter of the law.
In Trapp v. Mc Cormick, a case calling for the interpretation of a statute
containing a limitation of thirty (30) days within which a decree may be
entered without the consent of counsel, it was held that 'the statutory
provisions which may be thus departed from with impunity, without affecting
the validity of statutory proceedings, are usually those which relate to the
mode or time of doing that which is essential to effect the aim and purpose of
the Legislature or some incident of the essential act.' Thus, in said case, the
statute under examination was construed merely to be directory.
The mischief in petitioner's contending that the COMELEC should have abstained
from rendering a decision after the period stated in the Omnibus Election Code because it
lacked jurisdiction, lies in the fact that our courts and other quasi-judicial bodies would then

In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to
Section 78 of B.P. 881, 52 it is evident that the respondent Commission does not lose
jurisdiction to hear and decide a pending disqualification case under Section 78 of B.P. 881
even after the elections. cdlex

It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us to
either to ignore or deliberately make distinctions in law solely on the basis of the personality of a
petitioner in a case. Obviously a distinction was made on such a ground here. Surely, many
established principles of law, even of election laws were flouted for the sake perpetuating power
during the pre-EDSA regime. We renege on these sacred ideals, including the meaning and spirit
of EDSA by ourselves bending established principles of law to deny an individual what he or she
justly deserves in law. Moreover, in doing so, we condemn ourselves to repeat the mistake of the
past.
WHEREFORE, having determined that petitioner possesses the necessary residence qualifications
to run for a seat in the House of Representatives in the First District of Leyte, the COMELEC's
questioned Resolutions dated April 24, May 7, May 11, and May 25, 1995 are hereby SET ASIDE.
Respondent COMELEC is hereby directed to order the Provincial Board of Canvassers to proclaim
petitioner as the duly elected Representative of the First District of Leyte.
SO ORDERED. LLjur
||| (Romualdez-Marcos v. Commission on Elections, G.R. No. 119976, [September 18, 1995], 318

PHIL 329-466)

EN BANC

misapply their franchise. Thus, said votes cannot be treated as stray, void, or meaningless. The
Court dismissed the petition. DHACES

[G.R. No. 134015. July 19, 1999.]

SYLLABUS
JUAN DOMINO, petitioner, vs. COMMISSION ON ELECTIONS, NARCISO
Ra. GRAFILO, JR., EDDY B. JAVA, JUAN P. BAYONITO, JR., ROSARIO
SAMSON and DIONISIO P. LIM, SR., respondents.
LUCILLE CHIONGBIAN-SOLON, intervenor.

Brillantes Navarro Jumamil Arcilla Escolin & Martinez Law Offices for petitioner.
Bacungan Opinion & Rivilla for private respondents.
Fornier & Fornier Law Firm for intervenor.
SYNOPSIS
Petitioner Domino filed his certificate of candidacy for the position of Representative of the Lone
District of the Province of Sarangani. Private respondents, however, filed with the Comelec a
petition to deny due course to or cancel the certificate of candidacy of Domino because he is
neither a resident nor a registered voter of the province of Sarangani. The petition was assigned
to the Comelec Second Division, which rendered a resolution declaring Domino disqualified as
candidate for the position and ordered the cancellation of his certificate of candidacy. On the day
of the election, the Comelec ordered that the votes cast for Domino be counted but suspended
the proclamation if he wins. The result of the election showed that Domino garnered the highest
number of votes over his opponents. He filed a motion for reconsideration of the resolution of the
Comelec, which was denied by the Comelec en banc. Hence, the present petition for certiorari
with preliminary mandatory injunction alleging that Comelec committed grave abuse of discretion
amounting to excess or lack of jurisdiction when it ruled that he did not meet the one-year
residence requirement. The Court allowed the candidate who received the second highest
number of votes in the election to intervene.
According to the Supreme Court, in showing compliance with the residency requirement, both
intent and actual presence in the district one intends to represent must satisfy the length of time
prescribed by the fundamental law. Domino's failure to do so rendered him ineligible and his
election to office null and void. The intervenor's plea that the votes cast in favor of Domino be
considered stray votes cannot be sustained. Thus, the votes cast for Domino were presumed to
have been cast in the sincere belief that he was a qualified candidate, without any intention to

1. POLITICAL LAW; ELECTIONS; OMNIBUS ELECTION CODE; JURISDICTION OF THE

COMMISSION ON ELECTIONS OVER PETITIONS TO DENY DUE COURSE TO OR CANCEL
CERTIFICATE OF CANDIDACY; CASE AT BAR. The COMELEC has jurisdiction as provided in
Sec. 78, Art. IX of the Omnibus Election Code; over a petition to deny due course to or cancel
certificate of candidacy. In the exercise of the said jurisdiction, it is within the competence of the
COMELEC to determine whether false representation as to material facts was made in the
certificate of candidacy, that will include, among others, the residence of the candidate. . . . Such
jurisdiction continues even after election, if for any reason no final judgment of disqualification is
rendered before the election, and the candidate facing disqualification is voted for and receives
the highest number of votes and provided further that the winning candidate has not been
proclaimed or has taken his oath of office.
2. ID.; ID.; ID.; INCLUSION OR EXCLUSION PROCEEDING; DECISION IN SUCH PROCEEDING,
NOT CONCLUSIVE ON THE VOTER'S POLITICAL STATUS. The determination of the
Metropolitan Trial Court of Quezon City in the exclusion proceedings as to the right of DOMINO to
be included or excluded from the list of voters in the precinct within its territorial jurisdiction,
does not preclude the COMELEC, in the determination of DOMINO's qualification as a candidate,
to pass upon the issue of compliance with the residency requirement. The proceedings for the
exclusion or inclusion of voters in the list of voters are summary in character. Thus, the factual
findings of the trial court and its resultant conclusions in the exclusion proceedings on matters
other than the right to vote in the precinct within its territorial jurisdiction are not conclusive
upon the COMELEC. Although the court in inclusion or exclusion proceedings may pass upon any
question necessary to decide the issue raised including the questions of citizenship and residence
of the challenged voter, the authority to order the inclusion in or exclusion from the list of voters
necessarily carries with it the power to inquire into and settle all matters essential to the exercise
of said authority. However, except for the right to remain in the list of voters or for being
excluded therefrom for the particular election in relation to which the proceedings had been held,
a decision in an exclusion or inclusion proceeding, even if final and unappealable, does not
acquire the nature of res judicata. In this sense, it does not operate as a bar to any future action
that a party may take concerning the subject passed upon in the proceeding. Thus, a decision in
an exclusion proceeding would neither be conclusive on the voter's political status, nor bar
subsequent proceeding's on his right to be registered as a voter in any other election. AHacIS
3. ID.; ID.; ID.; ID.; TRIAL COURT; JURISDICTION OVER EXCLUSION CASES LIMITED TO
DETERMINING THE RIGHT OF VOTER TO REMAIN IN LIST OF VOTERS. The jurisdiction of the
lower court over exclusion cases is limited only to determining the right of voter to remain in the

list of voters or to declare that the challenged voter is not qualified to vote in the precinct in
which he is registered, specifying the ground of the voter's disqualification. The trial court has no
power to order the change or transfer of registration from one place of residence to another for it
is the function of the Election Registration Board as provided under Section 12 of R.A. No. 8189.
The only effect of the decision of the lower court excluding the challenged voter from the list of
voters, is for the Election Registration Board, upon receipt of the final decision, to remove the
voter's registration record from the corresponding book of voters, enter the order of exclusion
therein, and thereafter place the record in the inactive file.
4. ID.; ID.; QUALIFICATIONS FOR SUFFRAGE AND FOR ELECTIVE OFFICE; RESIDENCE AND
DOMICILE, CONSTRUED. It is doctrinally settled that the term "residence," as used in the law
prescribing the qualifications for suffrage and for elective office, means the same thing as
"domicile," which imports not only an intention to reside in a fixed place but also personal
presence in that place, coupled with conduct indicative of such intention. "Domicile" denotes a
fixed permanent residence to which, whenever absent for business, pleasure, or some other
reasons, one intends to return. "Domicile" is a question of intention and circumstances. In the
consideration of circumstances, three rules must be borne in mind, namely: (1) that a man must
have a residence or domicile somewhere; (2) when once established it remains until a new one is
acquired; and (3) a man can have but one residence or domicile at a time. A person's "domicile"
once established is considered to continue and will not be deemed lost until a new one is
established. To successfully effect a change of domicile one must demonstrate an actual removal
or an actual change of domicile; a bona fide intention of abandoning the former place of
residence and establishing a new one and definite acts which correspond with the purpose. In
other words, there must basically be animus manendi coupled with animus non revertendi. The
purpose to remain in or at the domicile of choice must be for an indefinite period of time; the
change of residence must be voluntary; and the residence at the place chosen for the new
domicile must be actual. As a general rule, the principal elements of domicile, physical presence
in the locality involved and intention to adopt it as a domicile, must concur in order to establish a
new domicile. No change of domicile will result if either of these elements is absent. Intention to
acquire a domicile without actual residence in the locality does not result in acquisition of
domicile, nor does the fact of physical presence without intention. Exercising the right of election
franchise is a deliberate public assertion of the fact of residence, and is said to have decided
preponderance in a doubtful case upon the place the elector claims as, or believes to be, his
residence. The fact that a party continuously voted in a particular locality is a strong factor in
assisting to determine the status of his domicile.
5. ID.; ID.; CANDIDATE WHO OBTAINS THE SECOND HIGHEST NUMBER OF VOTES MAY NOT BE
PROCLAIMED WINNER IN CASE THE WINNING CANDIDATE IS DISQUALIFIED. It is now
settled doctrine that the candidate who obtains the second highest number of votes may not be
proclaimed winner in case the winning candidate is disqualified. In every election, the people's
choice is the paramount consideration and their expressed will must, at all times, be given effect.

When the majority speaks and elects into office a candidate by giving the highest number of
votes cast in the election for that office, no one can be declared elected in his place. TaCDIc
6. ID.; ID.; ID.; RATIONALE. It would be extremely repugnant to the basic concept of the
constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the
majority of which have positively declared through their ballots that they do not choose him. To
simplistically assume that the second placer would have received the other votes would be to
substitute our judgment for the mind of the voters. He could not be considered the first among
qualified candidates because in a field which excludes the qualified candidate, the conditions
would have substantially changed. Sound policy dictates that public elective offices are filled by
those who have received the highest number of votes cast in the election for that office, and it is
fundamental idea in all republican forms of government that no one can be declared elected and
no measure can be declared carried unless he or it receives a majority or plurality of the legal
votes cast in the election. The effect of a decision declaring a person ineligible to hold an office is
only that the election fails entirely, that the wreath of victory cannot be transferred from the
disqualified winner to the repudiated loser because the law then as now only authorizes a
declaration of election in favor of the person who has obtained a plurality of votes and does not
entitle the candidate receiving the next highest number of votes to be declared elected. In such
case, the electors have failed to make a choice and the election is a nullity. To allow the defeated
and repudiated candidate to take over the elective position despite his rejection by the electorate
is to disenfranchise the electorate without any fault on their part and to undermine the
importance and meaning of democracy and the people's right to elect officials of their choice.

7. ID.; ID.; JURISDICTION OF THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL;

BEGINS ONLY AFTER A CANDIDATE HAS BECOME A MEMBER OF THE HOUSE OF
REPRESENTATIVES. It has been repeatedly held in a number of cases, that the House of
Representatives Electoral Tribunal's sole and exclusive jurisdiction over all contests relating to the
election, returns and qualifications of members of Congress as provided under Section 17 of
Article VI of the Constitution begins only after a candidate has become a member of the House of
Representatives. The fact of obtaining the highest number of votes in an election does not
automatically vest the position in the winning candidate. A candidate must be proclaimed and
must have taken his oath of office before he can be considered a member of the House of
Representatives.
8. REMEDIAL LAW; JUDGMENT; DISMISSAL OF ACTION; RES JUDICATA; REQUISITES;
UNAVAILING IN CASE AT BAR. The application of the rule on res judicata is unavailing.
Identity of parties, subject matter and cause of action are indispensable requirements for the
application of said doctrine. Neither herein Private Respondents nor INTERVENOR, is a party in
the exclusion proceedings. The Petition for Exclusion was filed by DOMINO himself and his wife,

praying that he and his wife be excluded from the Voter's List on the ground of erroneous
registration while the Petition to Deny Due Course to or Cancel Certificate of Candidacy was filed
by private respondents against DOMINO for alleged false representation in his certificate of
candidacy. For the decision to be a basis for the dismissal by reason of res judicata, it is essential
that there must be between the first and the second action identity of parties, identity of subject
matter and identity of causes of action. In the present case, the aforesaid essential requisites are
not present.
PANGANIBAN, J.: separate opinion:
1. POLITICAL LAW; ELECTIONS; QUALIFICATION OF VOTERS; RESIDENCE REQUIREMENT;
SHOULD BE CONSTRUED TO MEAN ACTUAL, PHYSICAL AND PERSONAL PRESENCE; RATIONALE.
A member. of the House of Representatives must be a resident of the district which he or she
seeks to represent "for a period of not less than one year immediately preceding the day of the
election" is a constitutional requirement that should be interpreted in the sense in which ordinary
lay persons understand it. The common people who ratified the Constitution and were thereafter
expected to abide by it would not normally refer to the journals of the Constitutional Commission
in order to understand the words and phrases contained therein. Rather, they would usually refer
to the common source being used when they look up for the meaning of words the dictionary.
In this sense, Webster's definition of residence should be controlling. If the framers of our basic
law intended our people to understand residence as legal domicile, they should have said so.
Then our people would have looked up the meaning of domicile and would have understood the
constitutional provision in that context. However, the framers of our Constitution did not. Justice
Panganiban therefore submits that residence must be understood in its common dictionary
meaning as understood by ordinary lay persons. CHTcSE
2. ID.; ID.; ID.; ID.; NEGATED SHOULD THE CONCEPT OF DOMICILE BE APPLIED; BASIS
THEREOF. Applying the concept of domicile in determining residence as a qualification for an
elective office would negate the objective behind the residence requirement of one year (or six
months, in the case of local positions). This required period of residence preceding the day of the
election, is rooted in the desire that officials of districts or localities be acquainted not only with
the metes and bounds of their constituencies but, more important, with the constituents
themselves their needs, difficulties, potentials for growth and development and all matters
vital to their common welfare. Such requisite period would precisely give candidates the
opportunity to be familiar with their desired constituencies, and likewise for the electorate to
evaluate their fitness for the offices they seek. If all that is required of elective officials is legal
domicile, then they would qualify even if, for several years prior to the election, they have never
set foot in their districts (or in the country, for that matter), since it is possible to maintain legal
domicile even without actual presence, provided one retains the animus revertendi or the
intention to return.

3. ID.; CONSTITUTION, AS THE BASIC LAW OF THE LAND; SHOULD BE INTERPRETED IN THE
SENSE UNDERSTOOD BY ORDINARY MAN. The Constitution is the most basic law of the land.
It enshrines the most cherished aspirations and ideals of the population at large. It is not a
document reserved only for scholarly disquisition by the most eminent legal minds of the land. In
ascertaining its import, lawyers are not meant to quibble over it, to define its legal niceties, or to
articulate its nuances. Its contents and words should be interpreted in the sense understood by
the ordinary men and women who place their lives on the line in its defense and who pin their
hopes for a better life on its fulfillment. The call for simplicity in understanding and interpreting
our Constitution has been made a number of times. About three decades ago, this Court
declared: "It is to be assumed that the words in which constitutional provisions are couched
express the objective sought to be attained. They are to be given their ordinary meaning except
where technical terms are employed in which case the significance thus attached to them
prevails. As the Constitution is not primarily a lawyer's document, it being essential for the rule of
law to obtain that it should ever be present in the people's 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 there are cases where the need for construction is reduced to a minimum." CAIHTE

DECISION

DAVIDE, JR., C.J p:

Challenged in this case for certiorari with a prayer for preliminary injunction are the Resolution of
6 May 1998 1 of the Second Division of the Commission on Elections (hereafter COMELEC),
declaring petitioner Juan Domino (hereafter DOMINO) disqualified as candidate for representative
of the Lone Legislative District of the Province of Sarangani in the 11 May 1998 elections, and the
Decision of 29 May 1998 2 of the COMELEC en banc denying DOMINO's motion for
reconsideration. cdll
The antecedents are not disputed.
On 25 March 1998, DOMINO filed his certificate of candidacy for the position of Representative of
the Lone Legislative District of the Province of Sarangani indicating in item nine (9) of his
certificate that he had resided in the constituency where he seeks to be elected for one (1) year
and two (2) months immediately preceding the election. 3
On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy B. Java, Juan P. Bayonito,
Jr., Rosario Samson and Dionisio P. Lim, Sr., filed with the COMELEC a Petition to Deny Due

Course to or Cancel Certificate of Candidacy, which was docketed as SPA No. 98-022 and
assigned to the Second Division of the COMELEC. Private respondents alleged that DOMINO,
contrary to his declaration in the certificate of candidacy, is not a resident, much less a registered
voter, of the province of Sarangani where he seeks election. To substantiate their allegations,
private respondents presented the following evidence:
1. Annex "A" the Certificate of Candidacy of respondent for the position of
Congressman of the Lone District of the Province of Sarangani filed
with the Office of the Provincial Election Supervisor of Sarangani on
March 25, 1998, where in item 4 thereof he wrote his date of birth as
December 5, 1953; in item 9, he claims he have resided in the
constituency where he seeks election for one (1) year and two (2)
months; and, in item 10, that he is registered voter of Precinct No.
14A-1, Barangay Poblacion, Alabel, Sarangani;
2. Annex "B" Voter's Registration Record with SN 31326504 dated June 22,
1997 indicating respondent's registration at Precinct No. 4400-A, Old
Balara, Quezon City;

Provincial Treasurer and Municipal Treasurer of Alabel, Sarangani,

which states:
"For easy reference, kindly turn-over to the undersigned for
safekeeping, the stub of Community Tax Certificate containing Nos.
11132201C-11132250C issued to you on June 13, 1997 and paid under
Official Receipt No. 7854744.
Upon request of Congressman James L. Chiongbian."
7. Annex "G" Certificate of Candidacy of respondent for the position of
Congressman in the 3rd District of Quezon City for the 1995 elections
filed with the Office of the Regional Election Director, National Capital
Region, on March 17, 1995, where, in item 4 thereof, he wrote his
birth date as December 22, 1953; in item 8 thereof his "residence in

the constituency where I seek to be elected immediately preceding the

election" as 3 years and 5 months; and, in item 9, that he is a
registered voter of Precinct No. 182, Barangay Balara, Quezon City;

3. Annex "C" Respondent's Community Tax Certificate No. 11132214C dated

January 15, 1997; cdasia
4. Annex "D" Certified true copy of the letter of Herson D. Dema-ala, Deputy
Provincial & Municipal Treasurer of Alabel, Sarangani, dated February
26, 1998, addressed to Mr. Conrado G. Butil, which reads:
"In connection with your letter of even date, we are furnishing you
herewith certified xerox copy of the triplicate copy of COMMUNITY TAX
CERTIFICATE NO. 11132214C in the name of Juan Domino.
Furthermore, Community Tax Certificate No. 11132212C of the same
stub was issued to Carlito Engcong on September 5, 1997, while
Certificate No. 11132213C was also issued to Mr. Juan Domino but was
cancelled and serial no. 11132215C was issued in the name of
Marianita Letigio on September 8, 1997."
5. Annex "E" The triplicate copy of the Community Tax Certificate No.
11132214C in the name of Juan Domino dated September 5, 1997;
6. Annex "F" Copy of the letter of Provincial Treasurer Lourdes P. Riego
dated March 2, 1998 addressed to Mr. Herson D. Dema-ala, Deputy

8. Annex "H" a copy of the APPLICATION FOR TRANSFER OF

REGISTRATION RECORDS DUE TO CHANGE OF RESIDENCE of
respondent dated August 30, 1997 addressed to and received by
Election Officer Mantil Alim, Alabel, Sarangani, on September 22, 1997,
stating among others, that "[T]he undersigned's previous residence is
at 24 Bonifacio Street, Ayala Heights, Quezon City, III District, Quezon
City; wherein he is a registered voter" and "that for business and
residence purposes, the undersigned has transferred and conducts his
business and reside at Barangay Poblacion, Alabel, Province of
Sarangani prior to this application;" cdlex
9. Annex "I" Copy of the SWORN APPLICATION FOR CANCELLATION OF
VOTER'S [TRANSFER OF] PREVIOUS REGISTRATION of respondent
subscribed and sworn to on 22 October 1997 before Election Officer
Mantil Allim at Alabel, Sarangani. 4
For his defense, DOMINO maintains that he had complied with the one-year residence
requirement and that he has been residing in Sarangani since January 1997. In support of the
said contention, DOMINO presented before the COMELEC the following exhibits, to wit:

1. Annex "1" Copy of the Contract of Lease between Nora Dacaldacal as

Lessor and Administrator of the properties of deceased spouses
Maximo and Remedios Dacaldacal and respondent as Lessee executed
on January 15, 1997, subscribed and sworn to before Notary Public
Johnny P. Landero;
2. Annex "2" Copy of the Extra-Judicial Settlement of Estate with Absolute
Deed of sale executed by and between the heirs of deceased spouses
Maximo and Remedios Dacaldacal, namely: Maria Lourdes, Jupiter and
Beberlie and the respondent on November 4, 1997, subscribed and
sworn to before Notary Public Jose A. Alegario;
3. Annex "3" True Carbon Xerox copy of the Decision dated January 19,
1998, of the Metropolitan Trial Court of Metro Manila, Branch 35,
Quezon City, in Election Case NO. 725 captioned as "In the Matter of
the Petition for the Exclusion from the List of voters of Precinct No.
4400-A Brgy. Old Balara, Quezon City, Spouses Juan and Zorayda
Domino, Petitioners, versus Elmer M. Kayanan, Election Officer,

Quezon City, District III, and the Board of Election Inspectors of

Precinct No. 4400-A, Old Balara, Quezon City, Respondents." The
dispositive portion of which reads:
1. Declaring the registration of petitioners as voters of Precinct No.
4400-A, Barangay Old Balara, in District III Quezon City as
completely erroneous as petitioners were no longer residents
of Quezon City but of Alabel, Sarangani where they have been
residing since December 1996;
2. Declaring this erroneous registration of petitioners in Quezon City as
done in good faith due to an honest mistake caused by
circumstances beyond their control and without any fault of
petitioners;
3. Approving the transfer of registration of voters of petitioners from
Precinct No. 4400-A of Barangay Old Balara, Quezon City to
Precinct No. 14A1 of Barangay Poblacion of Alabel, Sarangani;
and
4. Ordering the respondents to immediately transfer and forward all
the election/voter's registration records of the petitioners in
Quezon City to the Election Officer, the Election Registration
Board and other Comelec Offices of Alabel, Sarangani where

the petitioners are obviously qualified to exercise their

respective rights of suffrage. cdll
4. Annex "4" Copy of the Application for Transfer of Registration Records
due to Change of Residence addressed to Mantil Alim, COMELEC
Registrar, Alabel, Sarangani, dated August 30, 1997.
5. Annex "5" Certified True Copy of the Notice of Approval of Application,
the roster of applications for registration approved by the Election
Registration Board on October 20, 1997, showing the spouses Juan
and Zorayda Bailon Domino listed as numbers 111 and 112 both under
Precinct No. 14A1, the last two names in the slate indicated as
transferees without VRR numbers and their application dated August
30, 1997 and September 30, 1997, respectively.
6. Annex "6" same as Annex "5"
7. Annex "6-a" Copy of the Sworn Application for Cancellation of Voter's
Previous Registration (Annex "I", Petition);
8. Annex "7" Copy of claim card in the name of respondent showing his VRR
No. 31326504 dated October 20, 1997 as a registered voter of Precinct
No. 14A1, Barangay Poblacion, Alabel, Sarangani;
9. Annex "7-a" Certification dated April 16, 1998, issued by Atty. Elmer M.
Kayanan, Election Officer IV, District III, Quezon City, which reads:
"This is to certify that the spouses JUAN and ZORAYDA DOMINO are
no longer registered voters of District III, Quezon City. Their
registration records (VRR) were transferred and are now in the
possession of the Election Officer of Alabel, Sarangani.
This certification is being issued upon the request of Mr. JUAN
DOMINO.
10. Annex "8" Affidavit of Nora Dacaldacal and Maria Lourdes Dacaldacal
stating the circumstances and incidents detailing their alleged
acquaintance with respondent.
11. Annexes "8-a", "8-b", "8-c" and "8-d" Copies of the uniform affidavits of
witness Myrna Dalaguit, Hilario Fuentes, Coraminda Lomibao and Elena
V. Piodos subscribed and sworn to before Notary Public Bonifacio F.

Doria, Jr., on April 18, 1998, embodying their alleged personal

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

All told, petitioner's evidence conspire to attest to respondent's lack of

residence in the constituency where he seeks election and while it may be
conceded that he is a registered voter as contemplated under Section 12 of
R.A. 8189, he lacks the qualification to run for the position of Congressman for
the Lone District of the Province of Sarangani. 6 cda
On 11 May 1998, the day of the election, the COMELEC issued Supplemental Omnibus Resolution
No. 3046, ordering that the votes cast for DOMINO be counted but to suspend the proclamation
if winning, considering that the Resolution disqualifying him as candidate had not yet become
final and executory. 7
The result of the election, per Statement of Votes certified by the Chairman of the Provincial
Board of Canvassers, 8 shows that DOMINO garnered the highest number of votes over his
opponents for the position of Congressman of the Province of Sarangani.
On 15 May 1998, DOMINO filed a motion for reconsideration of the Resolution dated 6 May 1998,
which was denied by the COMELEC en banc in its decision dated 29 May 1998. Hence, the
present Petition for Certiorari with prayer for Preliminary Mandatory Injunction alleging, in the
main, that the COMELEC committed grave abuse of discretion amounting to excess or lack of
jurisdiction when it ruled that he did not meet the one-year residence requirement.
On 14 July 1998, acting on DOMINO's Motion for Issuance of Temporary Restraining Order, the
Court directed the parties to maintain the status quo prevailing at the time of the filing of the
instant petition. 9
On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter INTERVENOR), the candidate
receiving the second highest number of votes, was allowed by the Court to Intervene. 10
INTERVENOR in her Motion for Leave to Intervene and in her Comment in Intervention 11 is
asking the Court to uphold the disqualification of petitioner Juan Domino and to proclaim her as
the duly elected representative of Sarangani in the 11 May 1998 elections. llcd
Before us DOMINO raised the following issues for resolution, to wit:
a. Whether or not the judgment of the Metropolitan Trial Court of Quezon City
declaring petitioner as resident of Sarangani and not of Quezon City is
final, conclusive and binding upon the whole world, including the
Commission on Elections.

b. Whether or not petitioner herein has resided in the subject congressional

district for at least one (1) year immediately preceding the May 11,
1998 elections; and
c. Whether or not respondent COMELEC has jurisdiction over the petition a quo
for the disqualification of petitioner. 12

The first issue.

The contention of DOMINO that the decision of the Metropolitan Trial Court of Quezon City in the
exclusion proceedings declaring him a resident of the Province of Sarangani and not of Quezon
City is final and conclusive upon the COMELEC cannot be sustained.
The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the Omnibus Election Code, over
a petition to deny due course to or cancel certificate of candidacy. In the exercise of the said
jurisdiction, it is within the competence of the COMELEC to determine whether false
representation as to material facts was made in the certificate of candidacy, that will include,
among others, the residence of the candidate.
The determination of the Metropolitan Trial Court of Quezon City in the exclusion proceedings as
to the right of DOMINO to be included or excluded from the list of voters in the precinct within its
territorial jurisdiction, does not preclude the COMELEC, in the determination of DOMINO's
qualification as a candidate, to pass upon the issue of compliance with the residency
requirement.
The proceedings for the exclusion or inclusion of voters in the list of voters are summary in
character. Thus, the factual findings of the trial court and its resultant conclusions in the
exclusion proceedings on matters other than the right to vote in the precinct within its territorial
jurisdiction are not conclusive upon the COMELEC. Although the court in inclusion or exclusion
proceedings may pass upon any question necessary to decide the issue raised including the
questions of citizenship and residence of the challenged voter, the authority to order the inclusion
in or exclusion from the list of voters necessarily carries with it the power to inquire into and
settle all matters essential to the exercise of said authority. However, except for the right to
remain in the list of voters or for being excluded therefrom for the particular election in relation
to which the proceedings had been held, a decision in an exclusion or inclusion proceeding, even
if final and unappealable, does not acquire the nature of res judicata. 13 In this sense, it does
not operate as a bar to any future action that a party may take concerning the subject passed
upon in the proceeding. 14 Thus, a decision in an exclusion proceeding would neither be
conclusive on the voters political status, nor bar subsequent proceedings on his right to be
registered as a voter in any other election. 15
Thus, in Tan Cohon v. Election Registrar 16 we ruled that: dctai

. . . It is made clear that even as it is here held that the order of the City Court
in question has become final, the same does not constitute res adjudicata as to
any of the matters therein contained. It is ridiculous to suppose that such an
important and intricate matter of citizenship may be passed upon and
determined with finality in such a summary and peremptory proceeding as that
of inclusion and exclusion of persons in the registry list of voters. Even if the
City Court had granted appellant's petition for inclusion in the permanent list of
voters on the allegation that she is a Filipino citizen qualified to vote, her
alleged Filipino citizenship would still have been left open to question.
Moreover, the Metropolitan Trial Court of Quezon City in its 18 January decision exceeded its
jurisdiction when it declared DOMINO a resident of the Province of Sarangani, approved and
ordered the transfer of his voter's registration from Precinct No. 4400-A of Barangay Old Balara,
Quezon City to precinct 14A1 of Barangay Poblacion, Alabel, Sarangani. It is not within the
competence of the trial court, in an exclusion proceedings, to declare the challenged voter a
resident of another municipality. The jurisdiction of the lower court over exclusion cases is limited
only to determining the right of voter to remain in the list of voters or to declare that the
challenged voter is not qualified to vote in the precinct in which he is registered, specifying the
ground of the voter's disqualification. The trial court has no power to order the change or
transfer of registration from one place of residence to another for it is the function of the election
Registration Board as provided under Section 12 of R.A. No. 8189. 17 The only effect of the
decision of the lower court excluding the challenged voter from the list of voters, is for the
Election Registration Board, upon receipt of the final decision, to remove the voter's registration
record from the corresponding book of voters, enter the order of exclusion therein, and
thereafter place the record in the inactive file. 18
Finally, the application of the rule on res judicata is unavailing. Identity of parties, subject matter
and cause of action are indispensable requirements for the application of said doctrine. Neither
herein Private Respondents nor INTERVENOR, is a party in the exclusion proceedings. The
Petition for Exclusion was filed by DOMINO himself and his wife, praying that he and his wife be
excluded from the Voter's List on the ground of erroneous registration while the Petition to Deny
Due Course to or Cancel Certificate of Candidacy was filed by private respondents against
DOMINO for alleged false representation in his certificate of candidacy. For the decision to be a
basis for the dismissal by reason of res judicata, it is essential that there must be between the
first and the second action identity of parties, identity of subject matter and identity of causes of
action. 19 In the present case, the aforesaid essential requisites are not present. In the case of
Nuval v. Guray, et al., 20 the Supreme Court in resolving a similar issue ruled that: cdasia
The question to be solved under the first assignment of error is whether or not
the judgment rendered in the case of the petition for the exclusion of Norberto
Guray's name from the election list of Luna, is res judicata, so as to prevent

the institution and prosecution of an action in quo warranto, which is now

before us.
The procedure prescribed by section 437 of the Administrative Code, as
amended by Act No. 3387, is of a summary character and the judgment
rendered therein is not appealable except when the petition is tried before the
justice of the peace of the capital or the circuit judge, in which case it may be
appealed to the judge of first instance, with whom said two lower judges have
concurrent jurisdiction.
The petition for exclusion was presented by Gregorio Nuval in his dual capacity
as qualified voter of the municipality of Luna, and as a duly registered
candidate for the office of president of said municipality, against Norberto
Guray as a registered voter in the election list of said municipality. The present
proceeding of quo warranto was interposed by Gregorio Nuval in his capacity
as a registered candidate voted for the office of municipal president of Luna,
against Norberto Guray, as an elected candidate for the same office.
Therefore, there is no identity of parties in the two cases, since it is not
enough that there be an identity of persons, but there must be an identity of
capacities in which said persons litigate. (Art. 1259 of the Civil Code; Bowler
vs. Estate of Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756, par. 1165)
In said case of the petition for the exclusion, the object of the litigation, or the
litigious matter was the exclusion of Norberto Guray as a voter from the
election list of the municipality of Luna, while in the present quo warranto
proceeding, the object of the litigation, or the litigious matter is his exclusion
or expulsion from the office to which he has been elected. Neither does there
exist, then, any identity in the object of the litigation, or the litigious matter.
In said case of the petition for exclusion, the cause of action was that Norberto
Guray had not the six months' legal residence in the municipality of Luna to be
a qualified voter thereof, while in the present proceeding of quo warranto, the
cause of action is that Norberto Guray has not the one year's legal residence
required for eligibility to the office of municipal president of Luna. Neither does
there exist therefore, identity of causes of action. cdphil
In order that res judicata may exist the following are necessary: (a) identity of
parties; (b) identity of things; and (c) identity of issues (Aquino vs. Director of
Lands, 39 Phil. 850). And as in the case of the petition for exclusion and in the
present quo warranto proceeding, as there is no identity of parties, or of things
or litigious matter, or of issues or causes of action, there is no res judicata.

The Second Issue.

Was DOMINO a resident of the Province of Sarangani for at least one year immediately preceding
the 11 May 1998 election as stated in his certificate of candidacy?
We hold in the negative. cda
It is doctrinally settled that the term "residence," as used in the law prescribing the qualifications
for suffrage and for elective office, means the same thing as "domicile," which imports not only
an intention to reside in a fixed place but also personal presence in that place, coupled with
conduct indicative of such intention. 21 "Domicile" denotes a fixed permanent residence to
which, whenever absent for business, pleasure, or some other reasons, one intends to return. 22
"Domicile" is a question of intention and circumstances. In the consideration of circumstances,
three rules must be borne in mind, namely: (1) that a man must have a residence or domicile
somewhere; (2) when once established it remains until a new one is acquired; and (3) a man can
have but one residence or domicile at a time. 23

Records show that petitioner's domicile of origin was Candon, Ilocos Sur 24 and that sometime in
1991, he acquired a new domicile of choice at 24 Bonifacio St. Ayala Heights, Old Balara, Quezon
City, as shown by his certificate of candidacy for the position of representative of the 3rd District
of Quezon City in the May 1995 election. Petitioner is now claiming that he had effectively
abandoned his "residence" in Quezon City and has established a new "domicile" of choice at the
Province of Sarangani.
A person's "domicile" once established is considered to continue and will not be deemed lost until
a new one is established. 25 To successfully effect a change of domicile one must demonstrate
an actual removal or an actual change of domicile; a bona fide intention of abandoning the
former place of residence and establishing a new one and definite acts which correspond with the
purpose. 26 In other words, there must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period
of time; the change of residence must be voluntary; and the residence at the place chosen for
the new domicile must be actual. 27
It is the contention of petitioner that his actual physical presence in Alabel, Sarangani since
December 1996 was sufficiently established by the lease of a house and lot located therein in
January 1997 and by the affidavits and certifications under oath of the residents of that place
that they have seen petitioner and his family residing in their locality. dctai
While this may be so, actual and physical is not in itself sufficient to show that from said date he
had transferred his residence in that place. To establish a new domicile of choice, personal

presence in the place must be coupled with conduct indicative of that intention. While "residence"
simply requires bodily presence in a given place, "domicile" requires not only such bodily
presence in that place but also a declared and probable intent to make it one's fixed and
permanent place of abode, one's home. 28

law. 36 Domino's failure to do so rendered him ineligible and his election to office null and void.
37

As a general rule, the principal elements of domicile, physical presence in the locality involved
and intention to adopt it as a domicile, must concur in order to establish a new domicile. No
change of domicile will result if either of these elements is absent. Intention to acquire a domicile
without actual residence in the locality does not result in acquisition of domicile, nor does the fact
of physical presence without intention. 29

DOMINO's contention that the COMELEC has no jurisdiction in the present petition is bereft of
merit.

The lease contract entered into sometime in January 1997, does not adequately support a
change of domicile. The lease contract may be indicative of DOMINO's intention to reside in
Sarangani but it does not engender the kind of permanency required to prove abandonment of
one's original domicile. The mere absence of individual from his permanent residence, no matter
how long, without the intention to abandon it does not result in loss or change of domicile. 30
Thus the date of the contract of lease of a house and lot located in the province of Sarangani,
i.e., 15 January 1997, cannot be used, in the absence of other circumstances, as the reckoning
period of the one-year residence requirement.
Further, Domino's lack of intention to abandon his residence in Quezon City is further
strengthened by his act of registering as voter in one of the precincts in Quezon City. While
voting is not conclusive of residence, it does give rise to a strong presumption of residence
especially in this case where DOMINO registered in his former barangay. Exercising the right of
election franchise is a deliberate public assertion of the fact of residence, and is said to have
decided preponderance in a doubtful case upon the place the elector claims as, or believes to be,
his residence. 31 The fact that a party continuously voted in a particular locality is a strong factor
in assisting to determine the status of his domicile. 32
His claim that his registration in Quezon City was erroneous and was caused by events over
which he had no control cannot be sustained. The general registration of voters for purposes of
the May 1998 elections was scheduled for two (2) consecutive weekends, viz.: June 14, 15, 21,
and 22. 33
While, Domino's intention to establish residence in Sarangani can be gleaned from the fact that
be bought the house he was renting on November 4, 1997, that he sought cancellation of his
previous registration in Quezon City on 22 October 1997, 34 and that he applied for transfer of
registration from Quezon City to Sarangani by reason of change of residence on 30 August 1997,
35 DOMINO still falls short of the one year residency requirement under the Constitution. LLpr
In showing compliance with the residency requirement, both intent and actual presence in the
district one intends to represent must satisfy the length of time prescribed by the fundamental

The Third Issue.

As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the Omnibus Election Code, has
jurisdiction over a petition to deny due course to or cancel certificate of candidacy. Such
jurisdiction continues even after election, if for any reason no final judgment of disqualification is
rendered before the election, and the candidate facing disqualification is voted for and receives
the highest number of votes 38 and provided further that the winning candidate has not been
proclaimed or has taken his oath of office. 39
It has been repeatedly held in a number of cases, that the House of Representatives Electoral
Tribunal's sole and exclusive jurisdiction over all contests relating to the election, returns and
qualifications of members of Congress as provided under Section 17 of Article VI of the
Constitution begins only after a candidate has become a member of the House of
Representatives. 40
The fact of obtaining the highest number of votes in an election does not automatically vest the
position in the winning candidate. 41 A candidate must be proclaimed and must have taken his
oath of office before he can be considered a member of the House of Representatives.
In the instant case, DOMINO was not proclaimed as Congressman-elect of the Lone
Congressional District of the Province of Sarangani by reason of a Supplemental Omnibus
Resolution issued by the COMELEC on the day of the election ordering the suspension of
DOMINO's proclamation should he obtain the winning number of votes. This resolution was
issued by the COMELEC in view of the non-finality of its 6 May 1998 resolution disqualifying
DOMINO as candidate for the position.
Considering that DOMINO has not been proclaimed as Congressman-elect in the Lone
Congressional District of the Province of Sarangani he cannot be deemed a member of the House
of Representative. Hence, it is the COMELEC and not the Electoral Tribunal which has jurisdiction
over the issue of his ineligibility as a candidate. 42 prLL

Issue raised by INTERVENOR.

After finding that DOMINO is disqualified as candidate for the position of representative of the
province of Sarangani, may INTERVENOR, as the candidate who received the next highest
number of votes, be proclaimed as the winning candidate?

It is now settled doctrine that the candidate who obtains the second highest number of votes
may not be proclaimed winner in case the winning candidate is disqualified. 43 In every election,
the people's choice is the paramount consideration and their expressed will must, at all times, be
given effect. When the majority speaks and elects into office a candidate by giving the highest
number of votes cast in the election for that office, no one can be declared elected in his place.
44
It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to
suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a
winner and imposed as the representative of a constituency, the majority of which have positively
declared through their ballots that they do not choose him. 45 To simplistically assume that the
second placer would have received the other votes would be to substitute our judgment for the
mind of the voters. He could not be considered the first among qualified candidates because in a
field which excludes the qualified candidate, the conditions would have substantially changed. 46

Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public as an
ineligible candidate. Although the resolution declaring him ineligible as candidate was rendered
before the election, however, the same is not yet final and executory. In fact, it was no less than
the COMELEC in its Supplemental Omnibus Resolution No. 3046 that allowed DOMINO to be
voted for the office and ordered that the votes cast for him be counted as the Resolution
declaring him ineligible has not yet attained finality. Thus the votes cast for DOMINO are
presumed to have been cast in the sincere belief that he was a qualified candidate, without any
intention to misapply their franchise. Thus, said votes can not be treated as stray, void, or
meaningless. 53
WHEREFORE, the instant petition is DISMISSED. The resolution dated 6 May 1998 of the
COMELEC 2nd Division and the decision dated 29 May 1998 of the COMELEC En Banc, are hereby
AFFIRMED.
SO ORDERED.

Sound policy dictates that public elective offices are filled by those who have received the highest
number of votes cast in the election for that office, and it is fundamental idea in all republican
forms of government that no one can be declared elected and no measure can be declared
carried unless he or it receives a majority or plurality of the legal votes cast in the election. 47
The effect of a decision declaring a person ineligible to hold an office is only that the election fails
entirely, that the wreath of victory cannot be transferred 48 from the disqualified winner to the
repudiated loser because the law then as now only authorizes a declaration of election in favor of
the person who have obtained a plurality of votes 49 and does not entitle the candidate receiving
the next highest number of votes to be declared elected. In such case, the electors have failed to
make a choice and the election is a nullity. 50 To allow the defeated and repudiated candidate to
take over the elective position despite his rejection by the electorate is to disenfranchise the
electorate without any fault on their part and to undermine the importance and meaning of
democracy and the people's right to elect officials of their choice. 51

INTERVENOR's plea that the votes cast in favor of DOMINO be considered stray votes cannot be
sustained. INTERVENOR's reliance on the opinion made in the Labo, Jr. case 52 to wit: if the
electorate, fully aware in fact and in law of a candidate's disqualification so as to bring such
awareness within the realm of notoriety, would nevertheless cast their votes in favor of the
ineligible candidate, the electorate may be said to have waived the validity and efficacy of their
votes by notoriously misapplying their franchise or throwing away their votes, in which case, the
eligible candidate obtaining the next higher number of votes may be deemed elected, is
misplaced. cdasia

||| (Domino v. COMELEC, G.R. No. 134015, [July 19, 1999], 369 PHIL 798-829)