G.R. No.

177721

July 3, 2007

KILOSBAYAN FOUNDATION AND BANTAY KATARUNGAN

FOUNDATION, petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA; SANDIGANBAYAN
JUSTICE GREGORY S. ONG,respondents.
DECISION
AZCUNA, J.:
Filed on May 23, 2007 was this petition for certiorari under Rule 65 of
the Rules of Court.
Petitioners are peoples and/or non-governmental organizations
engaged in public and civic causes aimed at protecting the peoples
rights to self-governance and justice.
Respondent Executive Secretary is the head of the Office of the
President and is in charge of releasing presidential appointments
including those of Supreme Court Justices.
Respondent Gregory S. Ong is allegedly the party whose appointment
would fill up the vacancy in this Court.
Petitioners allege that:
On May 16, 2007, respondent Executive Secretary, in representation of
the Office of the President, announced an appointment in favor of
respondent Gregory S. Ong as Associate Justice of the Supreme Court
to fill up the vacancy created by the retirement on April 28, 2007 of
Associate Justice Romeo J. Callejo, Sr. The appointment was reported
the following day, May 17, 2007, by the major daily publications.
On May 18, 2007, the major daily publications reported that the
appointment was "recalled" or "held in abeyance" by Malacaang in view
of the question relating to the citizenship of respondent Gregory S. Ong.
There is no indication whatever that the appointment has been cancelled
by the Office of the President.
On May 19, 2007, the major daily publications reported that respondent
Executive Secretary stated that the appointment is "still there except that

the validation of the issue is being done by the Judicial and Bar Council
(JBC)."

by a judicial order, the Judicial & Bar Council, as well as the

whole world, is bound by what is stated in his birth certificate. 2

Petitioners contend that the appointment extended to respondent Ong

through respondent Executive Secretary is patently unconstitutional,
arbitrary, whimsical and issued with grave abuse of discretion amounting
to lack of jurisdiction.

This birth certificate, petitioners assert, prevails over

respondent Ongs new Identification Certificate issued by the
Bureau of Immigration dated October 16, 1996, stating that he
is a natural-born Filipino and over the opinion of then
Secretary of Justice Teofisto Guingona that he is a naturalborn Filipino. They maintain that the Department of Justice
(DOJ) does not have the power or authority to alter entries in a
birth certificate; that respondent Ongs old Identification
Certificate did not declare that he is a natural-born Filipino;
and that respondent Ongs remedy is an action to correct his
citizenship as it appears in his birth certificate.

Petitioners claim that respondent Ong is a Chinese citizen, that this fact
is plain and incontestable, and that his own birth certificate indicates his
Chinese citizenship. Petitioners attached a copy of said birth certificate
as Annex "H" to the petition. The birth certificate, petitioners add, reveals
that at the time of respondent Ongs birth on May 25, 1953, his father
was Chinese and his mother was also Chinese.
Petitioners invoke the Constitution:
Section 7 (1) of Article VIII of the 1987 Constitution provides
that "No person shall be appointed Member of the Supreme
Court or any lower collegiate court unless he is a natural-born
citizen of the Philippines." Sec. 2 of Art. IV defines "naturalborn citizens as those who are citizens of the Philippines from
birth without having to perform any act to acquire or perfect
their Philippine Citizenship."1
Petitioners maintain that even if it were granted that eleven years after
respondent Ongs birth his father was finally granted Filipino citizenship
by naturalization, that, by itself, would not make respondent Ong a
natural-born Filipino citizen.
Petitioners further argue that respondent Ongs birth certificate speaks
for itself and it states his nationality as "Chinese" at birth. They invoke
the Civil Code:
Article 410 of the Civil Code provides that "[t]he books making up the
civil register and all documents relating thereto x x x shall be prima facie
evidence of the facts therein contained." Therefore, the entry in Ongs
birth certificate indicating his nationality as Chinese is prima facie
evidence of the fact that Ongs citizenship at birth is Chinese.
Article 412 of the Civil Code also provides that "[N]o entry in a
civil register shall be changed or corrected without a judicial
order." Thus, as long as Ongs birth certificate is not changed

Petitioners thereupon pray that a writ of certiorari be issued annulling the

appointment issued to respondent Ong as Associate Justice of this
Court.
Subsequently, on May 24, 2007, petitioners filed an Urgent Motion for
the Issuance of a Temporary Restraining Order (TRO), praying that a
TRO be issued, in accordance with the Rules of Court, to prevent and
restrain respondent Executive Secretary from releasing the appointment
of respondent Ong, and to prevent and restrain respondent Ong from
assuming the office and discharging the functions of Associate Justice of
this Court.
The Court required respondents to Comment on the petition.
Respondent Executive Secretary accordingly filed his Comment,
essentially stating that the appointment of respondent Ong as Associate
Justice of this Court on May 16, 2007 was made by the President
pursuant to the powers vested in her by Article VIII, Section 9 of the
Constitution, thus:
SEC. 9. The Members of the Supreme Court and Judges of
lower courts shall be appointed by the President from a list of
at least three nominees prepared by the Judicial and Bar
Council for every vacancy. Such appointments need no
confirmation.
Respondent Executive Secretary added that the President appointed
respondent Ong from among the list of nominees who were duly

screened by and bore the imprimatur of the JBC created under Article
VIII, Section 8 of the Constitution. Said respondent further stated: "The
appointment, however, was not released, but instead, referred to the
JBC for validation of respondent Ongs citizenship."3 To date, however,
the JBC has not received the referral.
Supporting the Presidents action and respondent Ongs qualifications,
respondent Executive Secretary submits that:
1. The President did not gravely abuse her discretion as she
appointed a person, duly nominated by the JBC, which passed
upon the appointees qualifications.
2. Justice Gregory S. Ong is a natural-born citizen as
determined by the Bureau of Immigration and affirmed by the
Department of Justice, which have the authority and
jurisdiction to make determination on matters of citizenship.
3. Undisputed evidence disclosed that respondent Ong is a
natural-born citizen.
4. Petitioners are not entitled to a temporary restraining order. 4
Respondent Ong submitted his Comment with Opposition, maintaining
that he is a natural-born Filipino citizen; that petitioners have no standing
to file the present suit; and that the issue raised ought to be addressed
to the JBC as the Constitutional body mandated to review the
qualifications of those it recommends to judicial posts. Furthermore, the
petitioners in his view failed to include the President who is an
indispensable party as the one who extended the appointment.
As to his citizenship, respondent Ong traces his ancestral lines to one
Maria Santos of Malolos, Bulacan, born on November 25, 1881, who
was allegedly a Filipino citizen5 who married Chan Kin, a Chinese
citizen; that these two had a son, Juan Santos; that in 1906 Chan Kin
died in China, as a result of which Maria Santos reverted to her Filipino
citizenship; that at that time Juan Santos was a minor; that Juan Santos
thereby also became a Filipino citizen;6 that respondent Ongs mother,
Dy Guiok Santos, is the daughter of the spouses Juan Santos and Sy
Siok Hian, a Chinese citizen, who were married in 1927; that, therefore,
respondents mother was a Filipino citizen at birth; that Dy Guiok Santos
later married a Chinese citizen, Eugenio Ong Han Seng, thereby
becoming a Chinese citizen; that when respondent Ong was eleven

years old his father, Eugenio Ong Han Seng, was naturalized, and as a
result he, his brothers and sisters, and his mother were included in the
naturalization.
Respondent Ong subsequently obtained from the Bureau of Immigration
and the DOJ a certification and an identification that he is a natural-born
Filipino citizen under Article IV, Sections 1 and 2 of the Constitution,
since his mother was a Filipino citizen when he was born.
Summarizing, his arguments are as follows:
I. PETITIONERS LACK OF STANDING AND INABILITY TO
IMPLEAD AN INDISPENSABLE PARTY WHOSE OFFICIAL
ACTION IS THE VERY ACT SOUGHT TO BE ANNULLED
CONSTITUTE INSUPERABLE LEGAL OBSTACLES TO THE
EXERCISE OF JUDICIAL POWER AND SHOULD PREVENT
THIS CASE FROM PROCEEDING FURTHER FOR
DETERMINATION ON THE MERITS BY THIS HONORABLE
COURT.
II. RESPONDENT ONG IS, IN TRUTH AND IN FACT, A
NATURAL-BORN CITIZEN OF THE PHILIPPINES,
CONSIDERING THAT:
A. DY GUIOK SANTOS WAS A FILIPINO CITIZEN
AT THE TIME OF HER MARRIAGE TO EUGENIO;
and
B. HAVING BEEN BORN BEFORE JANUARY 17,
1973 OF A FILIPINO MOTHER AND WHO
ELECTED FILIPINO CITIZENSHIP UPON
REACHING THE AGE OF MAJORITY,
RESPONDENT ONG MEETS THE
REQUIREMENTS UNDER ARTICLE IV, SECTIONS
1 AND 2 OF THE 1987 CONSTITUTION.
III. THE BIRTH CERTIFICATE OF RESPONDENT ONG AS
PRESENTED BY PETITIONERS CAN, IN NO WAY,
WITHOUT MORE, ESTABLISH WITH FINALITY THAT HE IS
A CHINESE NATIONAL, OR DISPROVE CONCLUSIVELY
THAT HE IS, IN FACT, A NATURAL-BORN FILIPINO,
DESCENDED FROM "INDIOS."

IV. IT IS NOT NECESSARY FOR RESPONDENT ONG TO

RESORT TO JUDICIAL ACTION UNDER RULE 108 OF THE
RULES OF COURT FOR HIM TO BE ABLE TO CLAIM AND
ENJOY HIS RIGHTFUL STATUS AS A NATURAL-BORN
FILIPINO.
V. THE BUREAU OF IMMIGRATION HAS PREEMPTIVE
LEGAL AUTHORITY OR PRIMARY ADMINISTRATIVE
JURIDICTION TO MAKE A DETERMINATION AS REGARDS
THE CITIZENSHIP OF RESPONDENT ONG, AND UPON
SUBSEQUENT CONFIRMATION BY THE SECRETARY OF
JUSTICE AS REQUIRED BY THE RULES, ISSUE A
DECLARATION (I.E., IDENTIFICATION CERTIFICATE NO.
113878) RECOGNIZING THAT RESPONDENT ONG IS A
NATURAL-BORN FILIPINO, THEREBY RENDERING
NONEXISTENT ANY CONTITUTIONAL IMPEDIMENT FOR
HIM TO ASSUME THE POSITION OF ASSOCIATE JUSTICE
OF THE SUPREME COURT.7
Petitioners, in turn, filed a Consolidated Reply, in which they asserted
their standing to file this suit on the strength of previous decisions of this
Court, e.g., Kilosbayan, Incorporated v. Guingona8 and Kilosbayan,
Incorporated v. Morato,9 on the ground that the case is one of
transcendental importance. They claim that the Presidents appointment
of respondent Ong as Supreme Court Justice violates the Constitution
and is, therefore, attended with grave abuse of discretion amounting to
lack or excess of jurisdiction. Finally, they reiterate that respondent
Ongs birth certificate, unless corrected by judicial order in non-summary
proceedings for the purpose, is binding on all and is prima
facie evidence of what it states, namely, that respondent Ong is a
Chinese citizen. The alleged naturalization of his father when he was a
minor would not make him a natural-born Filipino citizen.
The petition has merit.
First, as to standing. Petitioners have standing to file the suit simply as
peoples organizations and taxpayers since the matter involves an issue
of utmost and far-reaching Constitutional importance, namely, the
qualification nay, the citizenship of a person to be appointed a
member of this Court. Standing has been accorded and recognized in
similar instances.10
Second, as to having to implead the President as an alleged necessary
party. This is not necessary since the suit impleads the Executive

Secretary who is the alter ego of the President and he has in fact
spoken for her in his Comment. Furthermore, the suit does not seek to
stop the President from extending the appointment but only the
Executive Secretary from releasing it and respondent Ong from
accepting the same.
Third, as to the proper forum for litigating the issue of respondent Ongs
qualification for memberhip of this Court. This case is a matter of
primordial importance involving compliance with a Constitutional
mandate. As the body tasked with the determination of the merits of
conflicting claims under the Constitution,11 the Court is the proper forum
for resolving the issue, even as the JBC has the initial competence to do
so.

Guiok Santos who are citizens of the Philippines, as

evidenced by the attached copy of his birth certificate marked
as Annex A (if born outside of wedlock, state so; or if Filipino
citizen other than natural born, state how and when citizenship
was acquired and attach the necessary proofs: By Nat. Case
#584 of Eugenio Ong Han Seng (Father) See Attached
documents Annex B, B-1, B-2, B-3, B-4.

V E R I F I CAT I O N
Republic of the Philippines )
City of Manila ) S.S.

On this point, the Court takes judicial notice of the records of respondent
Ongs petition to be admitted to the Philippine bar.

I, GREGORY SANTOS ONG, after being sworn, depose and

state: that I am the petitioner in the foregoing petition; that the
same was prepared by me and/or at my instance and that the
allegations contained therein are true to my knowledge.

Specifically, the following appears in the records:

PETITION
COMES now the undersigned petitioner and to this Honorable
Court respectfully states:
1. That he is single/married/widower/widow, Filipino citizen
and 26 years of age, having been born on May 25, 1953, at
SAN JUAN RIZAL, to spouses Eugenio Ong Han Seng and Dy

1) A certified clear copy of his Birth Certificate; and

2) A certification of non-appeal re his citizenship from the
Office of the Solicitor General.

xxx

Fourth, as to the principal issue of the case is respondent Ong a

natural-born Filipino citizen?

In his petition to be admitted to the Philippine bar, docketed as B.E. No.

1398-N filed on September 14, 1979, under O.R. No. 8131205 of that
date, respondent Ong alleged that he is qualified to be admitted to the
Philippine bar because, among others, he is a Filipino citizen; and that
he is a Filipino citizen because his father, Eugenio Ong Han Seng, a
Chinese citizen, was naturalized in 1964 when he, respondent Ong, was
a minor of eleven years and thus he, too, thereby became a Filipino
citizen. As part of his evidence, in support of his petition, be submitted
his birth certificate and the naturalization papers of his father. His birth
certificate12 states that he was a Chinese citizen at birth and that his
mother, Dy Guiok Santos, was a Chinese citizen and his father, Eugenio
Ong Han Seng, was also a Chinese citizen.

In fact, Emilio R. Rebueno, Deputy Clerk of Court and Bar Confidant,

wrote respondent Ong a letter dated October 3, 1979 stating that in
connection with his Petition for Admission to the 1979 Bar Examinations,
he has to submit:

Respondent Ong complied with these requirements.

It was on the basis of these allegations under oath and the submitted
evidence of naturalization that this Court allowed respondent Ong to
take the oath as a lawyer.
It is clear, therefore, that from the records of this Court, respondent Ong
is a naturalized Filipino citizen. The alleged subsequent recognition of
his natural-born status by the Bureau of Immigration and the DOJ
cannot amend the final decision of the trial court stating that respondent
Ong and his mother were naturalized along with his father.

(Sgd.) GREGORY SANTOS ONG

Affiant
SUBSCRIBED AND SWORN to before me this 28th day of
August, 1979, City of Manila, Philippines, affiant exhibiting
his/her Residence Certificate No. A-___________, issued at
________________, on __________________, 19__.
(Sgd.)
Notary Public
Until December 31, 1979
PTR No. 3114917
January 19, 1979, Pasig, MM
Doc. No. 98;
Page No. 10;
Book No. VIII;
Series of 1979.13

Furthermore, as petitioners correctly submit, no substantial change or

correction in an entry in a civil register can be made without a judicial
order, and, under the law, a change in citizenship status is a substantial
change. In Labayo-Rowe v. Republic,14 this Court held that:
Changes which affect the civil status or citizenship of a party
are substantial in character and should be threshed out in a
proper action depending upon the nature of the issues in
controversy, and wherein all the parties who may be affected
by the entries are notified or represented and evidence is
submitted to prove the allegations of the complaint, and proof
to the contrary admitted.15
Republic Act No. 9048 provides in Section 2 (3) that a summary
administrative proceeding to correct clerical or typographical errors in a
birth certificate cannot apply to a change in nationality. Substantial
corrections to the nationality or citizenship of persons recorded in the
civil registry should, therefore, be effected through a petition filed in court
under Rule 108 of the Rules of Court.16

The series of events and long string of alleged changes in the

nationalities of respondent Ongs ancestors, by various births, marriages
and deaths, all entail factual assertions that need to be threshed out in
proper judicial proceedings so as to correct the existing records on his
birth and citizenship. The chain of evidence would have to show that Dy
Guiok Santos, respondent Ongs mother, was a Filipino citizen, contrary
to what still appears in the records of this Court. Respondent Ong has
the burden of proving in court his alleged ancestral tree as well as his
citizenship under the time-line of three Constitutions. 17 Until this is done,
respondent Ong cannot accept an appointment to this Court as that
would be a violation of the Constitution. For this reason, he can be
prevented by injunction from doing so.
WHEREFORE, the petition is GRANTED as one of injunction directed
against respondent Gregory S. Ong, who is hereby ENJOINED from
accepting an appointment to the position of Associate Justice of the
Supreme Court or assuming the position and discharging the functions
of that office, until he shall have successfully completed all necessary
steps, through the appropriate adversarial proceedings in court, to show
that he is a natural-born Filipino citizen and correct the records of his
birth and citizenship.
This Decision is FINAL and IMMEDIATELY EXECUTORY.
No costs.

No. 98-336, dismissing the petition for disqualification filed

by the herein petitioner, Cirilo R. Valles, against private
respondent Rosalind Ybasco Lopez, in the May 1998
elections for governor of Davao Oriental.
Rosalind Ybasco Lopez was born on May 16, 1934 in
Napier Terrace, Broome, Western Australia, to the spouses,
Telesforo Ybasco, a Filipino citizen and native of Daet,
Camarines Norte, and Theresa Marquez, an Australian. In
1949, at the age of fifteen, she left Australia and came to
settle in the Philippines.
On June 27, 1952, she was married to Leopoldo
Lopez, a Filipino citizen, at the Malate Catholic Church in
Manila. Since then, she has continuously participated in the
electoral process not only as a voter but as a candidate, as
well. She served as Provincial Board Member of the
Sangguniang Panlalawigan of Davao Oriental. In 1992, she
ran for and was elected governor of Davao Oriental. Her
election was contested by her opponent, Gil Taojo, Jr., in a
petition for quo warranto, docketed as EPC No. 92-54,
alleging as ground therefor her alleged Australian
citizenship. However, finding no sufficient proof that
respondent had renounced her Philippine citizenship, the
Commission on Elections en banc dismissed the petition,
ratiocinating thus:
A cursory reading of the records of this case vis-a-vis the impugned
resolution shows that respondent was able to produce documentary
proofs of the Filipino citizenship of her late father... and consequently,
prove her own citizenship and filiation by virtue of the Principle of Jus
Sanguinis, the perorations of the petitioner to the contrary
notwithstanding.

SO ORDERED.

CIRILO R. VALLES, petitioner, vs. COMMISSION ON ELECTIONS

and ROSALIND YBASCO LOPEZ, respondents.
DECISION
PURISIMA, J.:
This is a petition for certiorari under Rule 65, pursuant
to Section 2, Rule 64 of the 1997 Rules of Civil Procedure,
assailing Resolutions dated July 17, 1998 and January 15,
1999, respectively, of the Commission on Elections in SPA

On the other hand, except for the three (3) alleged important
documents . . . no other evidence substantial in nature surfaced to
confirm the allegations of petitioner that respondent is an Australian
citizen and not a Filipino. Express renunciation of citizenship as a mode
of losing citizenship under Commonwealth Act No. 63 is an equivocal
and deliberate act with full awareness of its significance and
consequence. The evidence adduced by petitioner are inadequate, nay
meager, to prove that respondent contemplated renunciation of her
Filipino citizenship.[1]

In the 1995 local elections, respondent Rosalind

Ybasco Lopez ran for re-election as governor of Davao
Oriental. Her opponent, Francisco Rabat, filed a petition for
disqualification, docketed as SPA No. 95-066 before the
COMELEC, First Division, contesting her Filipino citizenship
but the said petition was likewise dismissed by the
COMELEC, reiterating substantially its decision in EPC 9254.
The citizenship of private respondent was once again
raised as an issue when she ran for re-election as governor
of Davao Oriental in the May 11, 1998 elections. Her
candidacy was questioned by the herein petitioner, Cirilo
Valles, in SPA No. 98-336.
On July 17, 1998, the COMELECs First Division came
out with a Resolution dismissing the petition, and disposing
as follows:
Assuming arguendo that res judicata does not apply and We are to
dispose the instant case on the merits trying it de novo, the above table
definitely shows that petitioner herein has presented no new evidence to
disturb the Resolution of this Commission in SPA No. 95-066. The
present petition merely restates the same matters and incidents already
passed upon by this Commission not just in 1995 Resolution but likewise
in the Resolution of EPC No. 92-54. Not having put forth any new
evidence and matter substantial in nature, persuasive in character or
sufficiently provocative to compel reversal of such Resolutions, the
dismissal of the present petition follows as a matter of course.
xxx....................................xxx....................................xxx
WHEREFORE, premises considered and there being no new matters
and issues tendered, We find no convincing reason or impressive
explanation to disturb and reverse the Resolutions promulgated by this
Commission in EPC 92-54 and SPA. 95-066. This Commission
RESOLVES as it hereby RESOLVES to DISMISS the present petition.
SO ORDERED.[2]
Petitioner interposed a motion for reconsideration of
the aforesaid Resolution but to no avail. The same was
denied by the COMELEC in its en banc Resolution of
January 15, 1999.

Undaunted, petitioner found his way to this

Court via the present petition; questioning the citizenship of
private respondent Rosalind Ybasco Lopez.
The Commission on Elections ruled that private
respondent Rosalind Ybasco Lopez is a Filipino citizen and
therefore, qualified to run for a public office because (1) her
father, Telesforo Ybasco, is a Filipino citizen, and by virtue of
the principle of jus sanguinis she was a Filipino citizen under
the 1987 Philippine Constitution; (2) she was married to a
Filipino, thereby making her also a Filipino citizen ipso
jure under Section 4 of Commonwealth Act 473; (3) and that,
she renounced her Australian citizenship on January 15,
1992 before the Department of Immigration and Ethnic
Affairs of Australia and her Australian passport was
accordingly cancelled as certified to by the Australian
Embassy in Manila; and (4) furthermore, there are the
COMELEC Resolutions in EPC No. 92-54 and SPA Case
No. 95-066, declaring her a Filipino citizen duly qualified to
run for the elective position of Davao Oriental governor.
Petitioner, on the other hand, maintains that the
private respondent is an Australian citizen, placing reliance
on the admitted facts that:
a) In 1988, private respondent registered herself with the Bureau of
Immigration as an Australian national and was issued Alien Certificate of
Registration No. 404695 dated September 19, 1988;
b) On even date, she applied for the issuance of an Immigrant
Certificate of Residence (ICR), and
c) She was issued Australian Passport No. H700888 on March 3, 1988.
Petitioner theorizes that under the aforestated facts
and circumstances, the private respondent had renounced
her Filipino citizenship. He contends that in her application
for alien certificate of registration and immigrant certificate of
residence, private respondent expressly declared under oath
that she was a citizen or subject of Australia; and said
declaration forfeited her Philippine citizenship, and operated
to disqualify her to run for elective office.
As regards the COMELECs finding that private
respondent had renounced her Australian citizenship on

January 15, 1992 before the Department of Immigration and

Ethnic Affairs of Australia and had her Australian passport
cancelled on February 11, 1992, as certified to by the
Australian Embassy here in Manila, petitioner argues that
the said acts did not automatically restore the status of
private respondent as a Filipino citizen. According to
petitioner, for the private respondent to reacquire Philippine
citizenship she must comply with the mandatory
requirements for repatriation under Republic Act 8171; and
the election of private respondent to public office did not
mean the restoration of her Filipino citizenship since the
private respondent was not legally repatriated. Coupled with
her alleged renunciation of Australian citizenship, private
respondent has effectively become a stateless person and
as such, is disqualified to run for a public office in the
Philippines; petitioner concluded.
Petitioner theorizes further that the Commission on
Elections erred in applying the principle of res judicata to the
case under consideration; citing the ruling in Moy Ya Lim
Yao vs. Commissioner of Immigration,[3] that:
xxx Everytime the citizenship of a person is material or
indispensable in a judicial or administrative case, whatever the
corresponding court or administrative authority decides therein as
to such citizenship is generally not considered as res adjudicata,
hence it has to be threshed out again and again as the occasion
may demand. xxx
The petition is unmeritorious.
The Philippine law on citizenship adheres to the
principle of jus sanguinis. Thereunder, a child follows the
nationality or citizenship of the parents regardless of the
place of his/her birth, as opposed to the doctrine of jus
soli which determines nationality or citizenship on the basis
of place of birth.
Private respondent Rosalind Ybasco Lopez was born
on May 16, 1934 in Napier Terrace, Broome, Western
Australia, to the spouses, Telesforo Ybasco, a Filipino citizen
and native of Daet, Camarines Norte, and Theresa Marquez,
an Australian. Historically, this was a year before the 1935
Constitution took into effect and at that time, what served as
the Constitution of the Philippines were the principal organic
acts by which the United States governed the

country. These were the Philippine Bill of July 1, 1902 and

the Philippine Autonomy Act of August 29, 1916, also known
as the Jones Law.
Among others, these laws defined who were deemed
to be citizens of the Philippine islands. The Philippine Bill of
1902 defined Philippine citizens as:
SEC. 4 xxx all inhabitants of the Philippine Islands continuing to reside
therein who were Spanish subjects on the eleventh day of April,
eighteen hundred and ninety-nine, and then resided in the Philippine
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.
(underscoring ours)
The Jones Law, on the other hand, provides:
SEC. 2 That all inhabitants of the Philippine Islands who were Spanish
subjects on the eleventh day of April, eighteen hundred and ninety-nine,
and then resided in said Islands, and their children born subsequent
thereto, shall be deemed and held to be citizens of the Philippine
Islands, except such as shall have elected to preserve their allegiance to
the Crown of Spain in accordance with the provisions of the treaty of
peace between the United States and Spain, signed at Paris December
tenth, eighteen hundred and ninety-eight, and except such others as
have since become citizens of some other country: Provided, That the
Philippine Legislature, herein provided for, is hereby authorized to
provide by law for the acquisition of Philippine citizenship by those
natives of the Philippine Islands who cannot 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.
(underscoring ours)
Under both organic acts, all inhabitants of the Philippines
who were Spanish subjects on April 11, 1899 and resided
therein including their children are deemed to be Philippine
citizens. Private respondents father, Telesforo Ybasco, was
born on January 5, 1879 in Daet, Camarines Norte, a fact
duly evidenced by a certified true copy of an entry in the

Registry of Births. Thus, under the Philippine Bill of 1902

and the Jones Law, Telesforo Ybasco was deemed to be a
Philippine citizen. By virtue of the same laws, which were
the laws in force at the time of her birth, Telesforos
daughter, herein private respondent Rosalind Ybasco Lopez,
is likewise a citizen of the Philippines.

(1) By naturalization in a foreign country;

The signing into law of the 1935 Philippine

Constitution has established the principle of jus sanguinis as
basis for the acquisition of Philippine citizenship, to wit:

(4) By accepting commission in the military, naval or air

service of a foreign country;

(1) Those who are citizens of the Philippine Islands at the

time of the adoption of this Constitution.
(2) Those born in the Philippine Islands of foreign parents
who, before the adoption of this 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.
So also, the principle of jus sanguinis, which confers
citizenship by virtue of blood relationship, was subsequently
retained under the 1973[4] and 1987[5] Constitutions. Thus,
the herein private respondent, Rosalind Ybasco Lopez, is a
Filipino citizen, having been born to a Filipino father. The
fact of her being born in Australia is not tantamount to her
losing her Philippine citizenship. If Australia follows the
principle of jus soli, then at most, private respondent can
also claim Australian citizenship resulting to her possession
of dual citizenship.

(2) By express renunciation of citizenship;

(3) By subscribing to an oath of allegiance to support the
constitution or laws of a foreign country upon attaining
twenty-one years of age or more;

(5) By cancellation of the certificate of naturalization;

(6) By having been declared by competent authority, a
deserter of the Philippine armed forces in time of war,
unless subsequently, a plenary pardon or amnesty has
been granted: and
(7) In case of a woman, upon her marriage, to a foreigner if,
by virtue of the laws in force in her husbands country,
she acquires his nationality.
In order that citizenship may be lost by renunciation,
such renunciation must be express. Petitioners contention
that the application of private respondent for an alien
certificate of registration, and her Australian passport, is
bereft of merit. This issue was put to rest in the case
of Aznar vs. COMELEC[6] and in the more recent case
ofMercado vs. Manzano and COMELEC.[7]
In the case of Aznar, the Court ruled that the mere fact
that respondent Osmena was a holder of a certificate stating
that he is an American did not mean that he is no longer a
Filipino, and that an application for an alien certificate of
registration was not tantamount to renunciation of his
Philippine citizenship.

Petitioner also contends that even on the assumption

that the private respondent is a Filipino citizen, she has
nonetheless renounced her Philippine citizenship. To
buttress this contention, petitioner cited private respondents
application for an Alien Certificate of Registration (ACR) and
Immigrant Certificate of Residence (ICR), on September 19,
1988, and the issuance to her of an Australian passport on
March 3, 1988.

And, in Mercado vs. Manzano and COMELEC, it was

held that the fact that respondent Manzano was registered
as an American citizen in the Bureau of Immigration and
Deportation and was holding an American passport on April
22, 1997, only a year before he filed a certificate of
candidacy for vice-mayor of Makati, were just assertions of
his American nationality before the termination of his
American citizenship.

Under Commonwealth Act No. 63, a Filipino citizen

may lose his citizenship:

Thus, the mere fact that private respondent Rosalind

Ybasco Lopez was a holder of an Australian passport and
had an alien certificate of registration are not acts

constituting an effective renunciation of citizenship and do

not militate against her claim of Filipino citizenship. For
renunciation to effectively result in the loss of citizenship, the
same must be express.[8] As held by this court in the
aforecited case of Aznar, an application for an alien
certificate of registration does not amount to an express
renunciation or repudiation of ones citizenship. The
application of the herein private respondent for an alien
certificate of registration, and her holding of an Australian
passport, as in the case of Mercado vs. Manzano, were
mere acts of assertion of her Australian citizenship before
she effectively renounced the same. Thus, at the most,
private respondent had dual citizenship - she was an
Australian and a Filipino, as well.
Moreover, under Commonwealth Act 63, the fact that a
child of Filipino parent/s was born in another country has not
been included as a ground for losing ones Philippine
citizenship. Since private respondent did not lose or
renounce her Philippine citizenship, petitioners claim that
respondent must go through the process of repatriation does
not hold water.
Petitioner also maintains that even on the assumption
that the private respondent had dual citizenship, still, she is
disqualified to run for governor of Davao Oriental; citing
Section 40 of Republic Act 7160 otherwise known as the
Local Government Code of 1991, which states:
SEC. 40. Disqualifications. The following persons are disqualified from
running for any elective local position:
xxx....................................xxx....................................xxx
(d) Those with dual citizenship;
xxx....................................xxx....................................xxx
Again, petitioners contention is untenable.
In the aforecited case of Mercado vs. Manzano, the
Court clarified dual citizenship as used in the Local
Government Code and reconciled the same with Article IV,
Section 5 of the 1987 Constitution on dual allegiance.
[9]
Recognizing situations in which a Filipino citizen may,
without performing any act, and as an involuntary
consequence of the conflicting laws of different countries, be
also a citizen of another state, the Court explained that dual

citizenship as a disqualification must refer to citizens with

dual allegiance. The Court succinctly pronounced:
xxx the phrase dual citizenship in R.A. No. 7160, xxx 40 (d) and in
R.A. No. 7854, xxx 20 must be understood as referring to dual
allegiance. Consequently, persons with mere dual citizenship do not fall
under this disqualification.
Thus, the fact that the private respondent had dual
citizenship did not automatically disqualify her from running
for a public office. Furthermore, it was ruled that for
candidates with dual citizenship, it is enough that they elect
Philippine citizenship upon the filing of their certificate of
candidacy, to terminate their status as persons with dual
citizenship.[10] The filing of a certificate of candidacy sufficed
to renounce foreign citizenship, effectively removing any
disqualification as a dual citizen.[11] This is so because in the
certificate of candidacy, one declares that he/she is a Filipino
citizen and that he/she will support and defend the
Constitution of the Philippines and will maintain true faith
and allegiance thereto. Such declaration, which is under
oath, operates as an effective renunciation of foreign
citizenship. Therefore, when the herein private respondent
filed her certificate of candidacy in 1992, such fact alone
terminated her Australian citizenship.
Then, too, it is significant to note that on January 15
1992, private respondent executed a Declaration of
Renunciation of Australian Citizenship, duly registered in the
Department of Immigration and Ethnic Affairs of Australia on
May 12, 1992. And, as a result, on February 11, 1992, the
Australian passport of private respondent was cancelled, as
certified to by Second Secretary Richard F. Munro of the
Embassy of Australia in Manila. As aptly appreciated by the
COMELEC, the aforesaid acts were enough to settle the
issue of the alleged dual citizenship of Rosalind Ybasco
Lopez. Since her renunciation was effective, petitioners
claim that private respondent must go through the whole
process of repatriation holds no water.
Petitioner maintains further that when citizenship is
raised as an issue in judicial or administrative proceedings,
the resolution or decision thereon is generally not
considered res judicata in any subsequent proceeding
challenging the same; citing the case of Moy Ya Lim Yao vs.

Commissioner of Immigration.[12] He insists that the same

issue of citizenship may be threshed out anew.
Petitioner is correct insofar as the general rule is
concerned, i.e. the principle of res judicata generally does
not apply in cases hinging on the issue of
citizenship. However, in the case of Burca vs. Republic,[13] an
exception to this general rule was recognized. The Court
ruled in that case that in order that the doctrine of res
judicata may be applied in cases of citizenship, the following
must be present:
1) a persons citizenship be raised as a material issue in a
controversy where said person is a party;
2) the Solicitor General or his authorized representative took
active part in the resolution thereof, and
3) the finding on citizenship is affirmed by this Court.
Although the general rule was set forth in the case
of Moy Ya Lim Yao, the case did not foreclose the weight of
prior rulings on citizenship. It elucidated that reliance may
somehow be placed on these antecedent official findings,
though not really binding, to make the effort easier or
simpler.[14] Indeed, there appears sufficient basis to rely on
the prior rulings of the Commission on Elections in SPA. No.
95-066 and EPC 92-54 which resolved the issue of
citizenship in favor of the herein private respondent. The
evidence adduced by petitioner is substantially the same
evidence presented in these two prior cases. Petitioner
failed to show any new evidence or supervening event to
warrant a reversal of such prior resolutions. However, the
procedural issue notwithstanding, considered on the merits,
the petition cannot prosper.
WHEREFORE, the petition is hereby DISMISSED and
the COMELEC Resolutions, dated July 17, 1998 and
January 15, 1999, respectively, in SPA No. 98-336
AFFIRMED.
Private respondent Rosalind Ybasco Lopez is hereby
adjudged qualified to run for governor of Davao Oriental. No
pronouncement as to costs.
SO ORDERED.

Davide, Jr., C.J., (Chairman), Melo, Puno, Vitug, Kapunan,

Mendoza, Panganiban, Quisumbing, Pardo, Buena, GonzagaReyes, Ynares-Santiago, and De Leon, Jr., JJ.,concur.
Bellosillo, J., abroad on official business.

BAR MATTER No. 914 October 1, 1999

RE: APPLICATION FOR ADMISSION TO THE PHILIPPINE BAR,
vs.
VICENTE D. CHING, applicant.
RESOLUTION

KAPUNAN, J.:
Can a legitimate child born under the 1935 Constitution of a Filipino
mother and an alien father validly elect Philippine citizenship fourteen
(14) years after he has reached the age of majority? This is the question
sought to be resolved in the present case involving the application for
admission to the Philippine Bar of Vicente D. Ching.
The facts of this case are as follows:
Vicente D. Ching, the legitimate son of the spouses Tat Ching, a
Chinese citizen, and Prescila A. Dulay, a Filipino, was born in Francia
West, Tubao, La Union on 11 April 1964. Since his birth, Ching has
resided in the Philippines.
On 17 July 1998, Ching, after having completed a Bachelor of Laws
course at the St. Louis University in Baguio City, filed an application to
take the 1998 Bar Examinations. In a Resolution of this Court, dated 1
September 1998, he was allowed to take the Bar Examinations, subject
to the condition that he must submit to the Court proof of his Philippine
citizenship.

In compliance with the above resolution, Ching submitted on 18

November 1998, the following documents:
1. Certification, dated 9 June 1986, issued by the
Board of Accountancy of the Professional
Regulations Commission showing that Ching is a
certified public accountant;
2. Voter Certification, dated 14 June 1997, issued by
Elizabeth B. Cerezo, Election Officer of the
Commission on Elections (COMELEC) in Tubao La
Union showing that Ching is a registered voter of the
said place; and
3. Certification, dated 12 October 1998, also issued
by Elizabeth B. Cerezo, showing that Ching was
elected as a member of the Sangguniang Bayan of
Tubao, La Union during the 12 May 1992
synchronized elections.
On 5 April 1999, the results of the 1998 Bar Examinations were released
and Ching was one of the successful Bar examinees. The oath-taking of
the successful Bar examinees was scheduled on 5 May 1999. However,
because of the questionable status of Ching's citizenship, he was not
allowed to take his oath. Pursuant to the resolution of this Court, dated
20 April 1999, he was required to submit further proof of his citizenship.
In the same resolution, the Office of the Solicitor General (OSG) was
required to file a comment on Ching's petition for admission to the bar
and on the documents evidencing his Philippine citizenship.
The OSG filed its comment on 8 July 1999, stating that Ching, being the
"legitimate child of a Chinese father and a Filipino mother born under the
1935 Constitution was a Chinese citizen and continued to be so, unless
upon reaching the age of majority he elected Philippine citizenship" 1 in
strict compliance with the provisions of Commonwealth Act No. 625
entitled "An Act Providing for the Manner in which the Option to Elect
Philippine Citizenship shall be Declared by a Person Whose Mother is a
Filipino Citizen." The OSG adds that "(w)hat he acquired at best was
only an inchoate Philippine citizenship which he could perfect by election
upon reaching the age of majority." 2 In this regard, the OSG clarifies
that "two (2) conditions must concur in order that the election of
Philippine citizenship may be effective, namely: (a) the mother of the
person making the election must be a citizen of the Philippines; and (b)
said election must be made upon reaching the age of majority." 3 The

OSG then explains the meaning of the phrase "upon reaching the age of
majority:"
The clause "upon reaching the age of majority" has
been construed to mean a reasonable time after
reaching the age of majority which had been
interpreted by the Secretary of Justice to be three
(3) years (VELAYO, supra at p. 51 citing Op., Sec. of
Justice No. 70, s. 1940, Feb. 27, 1940). Said period
may be extended under certain circumstances, as
when a (sic) person concerned has always
considered himself a Filipino (ibid., citing Op. Nos.
355 and 422, s. 1955; 3, 12, 46, 86 and 97, s. 1953).
But in Cuenco, it was held that an election done
after over seven (7) years was not made within a
reasonable time.
In conclusion, the OSG points out that Ching has not formally elected
Philippine citizenship and, if ever he does, it would already be beyond
the "reasonable time" allowed by present jurisprudence. However, due
to the peculiar circumstances surrounding Ching's case, the OSG
recommends the relaxation of the standing rule on the construction of
the phrase "reasonable period" and the allowance of Ching to elect
Philippine citizenship in accordance with C.A. No. 625 prior to taking his
oath as a member of the Philippine Bar.
On 27 July 1999, Ching filed a Manifestation, attaching therewith his
Affidavit of Election of Philippine Citizenship and his Oath of Allegiance,
both dated 15 July 1999. In his Manifestation, Ching states:
1. I have always considered myself as a Filipino;
2. I was registered as a Filipino and consistently
declared myself as one in my school records and
other official documents;
3. I am practicing a profession (Certified Public
Accountant) reserved for Filipino citizens;
4. I participated in electoral process[es] since the
time I was eligible to vote;

5. I had served the people of Tubao, La Union as a

member of the Sangguniang Bayan from 1992 to
1995;
6. I elected Philippine citizenship on July 15, 1999 in
accordance with Commonwealth Act No. 625;
7. My election was expressed in a statement signed
and sworn to by me before a notary public;
8. I accompanied my election of Philippine
citizenship with the oath of allegiance to the
Constitution and the Government of the Philippines;
9. I filed my election of Philippine citizenship and my
oath of allegiance to (sic) the Civil Registrar of
Tubao La Union, and
10. I paid the amount of TEN PESOS (Ps. 10.00) as
filing fees.
Since Ching has already elected Philippine citizenship on 15 July 1999,
the question raised is whether he has elected Philippine citizenship
within a "reasonable time." In the affirmative, whether his citizenship by
election retroacted to the time he took the bar examination.
When Ching was born in 1964, the governing charter was the 1935
Constitution. Under Article IV, Section 1(3) of the 1935 Constitution, the
citizenship of a legitimate child born of a Filipino mother and an alien
father followed the citizenship of the father, unless, upon reaching the
age of majority, the child elected Philippine citizenship. 4 This right to
elect Philippine citizenship was recognized in the 1973 Constitution
when it provided that "(t)hose who elect Philippine citizenship pursuant
to the provisions of the Constitution of nineteen hundred and thirty-five"
are citizens of the Philippines. 5 Likewise, this recognition by the 1973
Constitution was carried over to the 1987 Constitution which states that
"(t)hose born before January 17, 1973 of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority" are Philippine
citizens. 6 It should be noted, however, that the 1973 and 1987
Constitutional provisions on the election of Philippine citizenship should
not be understood as having a curative effect on any irregularity in the
acquisition of citizenship for those covered by the 1935 Constitution. 7 If
the citizenship of a person was subject to challenge under the old

charter, it remains subject to challenge under the new charter even if the
judicial challenge had not been commenced before the effectivity of the
new Constitution. 8
C.A. No. 625 which was enacted pursuant to Section 1(3), Article IV of
the 1935 Constitution, prescribes the procedure that should be followed
in order to make a valid election of Philippine citizenship. Under Section
1 thereof, legitimate children born of Filipino mothers may elect
Philippine citizenship by expressing such intention "in a statement to be
signed and sworn to by the party concerned before any officer
authorized to administer oaths, and shall be filed with the nearest civil
registry. The said party shall accompany the aforesaid statement with
the oath of allegiance to the Constitution and the Government of the
Philippines."
However, the 1935 Constitution and C.A. No. 625 did not prescribe a
time period within which the election of Philippine citizenship should be
made. The 1935 Charter only provides that the election should be made
"upon reaching the age of majority." The age of majority then
commenced upon reaching twenty-one (21) years. 9 In the opinions of
the Secretary of Justice on cases involving the validity of election of
Philippine citizenship, this dilemma was resolved by basing the time
period on the decisions of this Court prior to the effectivity of the 1935
Constitution. In these decisions, the proper period for electing Philippine
citizenship was, in turn, based on the pronouncements of the
Department of State of the United States Government to the effect that
the election should be made within a "reasonable time" after attaining
the age of majority. 10 The phrase "reasonable time" has been
interpreted to mean that the election should be made within three (3)
years from reaching the age of
majority. 11 However, we held in Cuenco vs. Secretary of Justice, 12 that
the three (3) year period is not an inflexible rule. We said:
It is true that this clause has been construed to
mean a reasonable period after reaching the age of
majority, and that the Secretary of Justice has ruled
that three (3) years is the reasonable time to elect
Philippine citizenship under the constitutional
provision adverted to above, which period may be
extended under certain circumstances, as when the
person concerned has always considered himself a
Filipino. 13

However, we cautioned in Cuenco that the extension of the option to

elect Philippine citizenship is not indefinite:
Regardless of the foregoing, petitioner was born on
February 16, 1923. He became of age on February
16, 1944. His election of citizenship was made on
May 15, 1951, when he was over twenty-eight (28)
years of age, or over seven (7) years after he had
reached the age of majority. It is clear that said
election has not been made "upon reaching the age
of majority." 14

Ching's reliance on Mallare is misplaced. The facts and circumstances

obtaining therein are very different from those in the present case, thus,
negating its applicability. First, Esteban Mallare was born before the
effectivity of the 1935 Constitution and the enactment of C.A. No. 625.
Hence, the requirements and procedures prescribed under the 1935
Constitution and C.A. No. 625 for electing Philippine citizenship would
not be applicable to him. Second, the ruling in Mallare was an obiter
since, as correctly pointed out by the OSG, it was not necessary for
Esteban Mallare to elect Philippine citizenship because he was already
a Filipino, he being a natural child of a Filipino mother. In this regard, the
Court stated:

In the present case, Ching, having been born on 11 April 1964, was
already thirty-five (35) years old when he complied with the
requirements of C.A. No. 625 on 15 June 1999, or over fourteen (14)
years after he had reached the age of majority. Based on the
interpretation of the phrase "upon reaching the age of majority," Ching's
election was clearly beyond, by any reasonable yardstick, the allowable
period within which to exercise the privilege. It should be stated, in this
connection, that the special circumstances invoked by Ching, i.e., his
continuous and uninterrupted stay in the Philippines and his being a
certified public accountant, a registered voter and a former elected
public official, cannot vest in him Philippine citizenship as the law
specifically lays down the requirements for acquisition of Philippine
citizenship by election.

Esteban Mallare, natural child of Ana Mallare, a

Filipina, is therefore himself a Filipino, and no other
act would be necessary to confer on him all the
rights and privileges attached to Philippine
citizenship (U.S. vs. Ong Tianse, 29 Phil. 332;
Santos Co vs. Government of the Philippine Islands,
42 Phil. 543, Serra vs. Republic, L-4223, May 12,
1952, Sy Quimsuan vs. Republic, L-4693, Feb. 16,
1953; Pitallano vs. Republic, L-5111, June 28, 1954).
Neither could any act be taken on the erroneous
belief that he is a non-filipino divest him of the
citizenship privileges to which he is rightfully
entitled. 17

Definitely, the so-called special circumstances cannot constitute what

Ching erroneously labels as informal election of citizenship. Ching
cannot find a refuge in the case of In re:Florencio Mallare, 15 the
pertinent portion of which reads:
And even assuming arguendo that Ana Mallare were
(sic) legally married to an alien, Esteban's exercise
of the right of suffrage when he came of age,
constitutes a positive act of election of Philippine
citizenship. It has been established that Esteban
Mallare was a registered voter as of April 14, 1928,
and that as early as 1925 (when he was about 22
years old), Esteban was already participating in the
elections and campaigning for certain candidate[s].
These acts are sufficient to show his preference for
Philippine citizenship. 16

The ruling in Mallare was reiterated and further elaborated in Co

vs. Electoral Tribunal of the House of Representatives, 18 where we held:
We have jurisprudence that defines "election" as
both a formal and an informal process.
In the case of In re: Florencio Mallare (59 SCRA 45
[1974]), the Court held that the exercise of the right
of suffrage and the participation in election exercises
constitute a positive act of election of Philippine
citizenship. In the exact pronouncement of the Court,
we held:
Esteban's exercise of the right of
suffrage when he came of age
constitutes a positive act of
Philippine citizenship. (p. 52:
emphasis supplied)

The private respondent did more than merely exercise his right of
suffrage. He has established his life here in the Philippines.
For those in the peculiar situation of the respondent
who cannot be excepted to have elected Philippine
citizenship as they were already citizens, we apply
the In Re Mallare rule.
xxx xxx xxx
The filing of sworn statement or formal declaration is
a requirement for those who still have to elect
citizenship. For those already Filipinos when the
time to elect came up, there are acts of deliberate
choice which cannot be less binding. Entering a
profession open only to Filipinos, serving in public
office where citizenship is a qualification, voting
during election time, running for public office, and
other categorical acts of similar nature are
themselves formal manifestations for these persons.
An election of Philippine citizenship presupposes
that the person electing is an alien. Or his status is
doubtful because he is a national of two countries.
There is no doubt in this case about Mr. Ong's being
a Filipino when he turned twenty-one (21).
We repeat that any election of Philippine citizenship
on the part of the private respondent would not only
have been superfluous but it would also have
resulted in an absurdity. How can a Filipino citizen
elect Philippine citizenship? 19
The Court, like the OSG, is sympathetic with the plight of Ching.
However, even if we consider the special circumstances in the life of
Ching like his having lived in the Philippines all his life and his consistent
belief that he is a Filipino, controlling statutes and jurisprudence
constrain us to disagree with the recommendation of the OSG.
Consequently, we hold that Ching failed to validly elect Philippine
citizenship. The span of fourteen (14) years that lapsed from the time he
reached the age of majority until he finally expressed his intention to
elect Philippine citizenship is clearly way beyond the contemplation of
the requirement of electing "upon reaching the age of majority."
Moreover, Ching has offered no reason why he delayed his election of

Philippine citizenship. The prescribed procedure in electing Philippine

citizenship is certainly not a tedious and painstaking process. All that is
required of the elector is to execute an affidavit of election of Philippine
citizenship and, thereafter, file the same with the nearest civil registry.
Ching's unreasonable and unexplained delay in making his election
cannot be simply glossed over.
Philippine citizenship can never be treated like a commodity that can be
claimed when needed and suppressed when convenient. 20 One who is
privileged to elect Philippine citizenship has only an inchoate right to
such citizenship. As such, he should avail of the right with fervor,
enthusiasm and promptitude. Sadly, in this case, Ching slept on his
opportunity to elect Philippine citizenship and, as a result. this golden
privilege slipped away from his grasp.
IN VIEW OF THE FOREGOING, the Court Resolves to DENY Vicente
D. Ching's application for admission to the Philippine Bar.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and YnaresSantiago, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 99358 January 30, 1995

DJUMANTAN, petitioner,
vs.
HON. ANDREA D. DOMINGO, COMMISSIONER OF THE BOARD OF
IMMIGRATION, HON. REGINO R. SANTIAGO and HON. JORGE V.
SARMIENTO, COMMISSIONERS BUREAU OF IMMIGRATION AND
DEPORTATION, respondents.

QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of
Court with preliminary injunction, to reverse and set aside the Decision
dated September 27, 1990 of the Commission on Immigration and
Deportation (CID), ordering the deportation of petitioner and its
Resolution dated January 29, 1991, denying the motion for
reconsideration.
I
Bernard Banez, the husband of Marina Cabael, went to Indonesia as a
contract worker.
On April 3, 1974, he embraced and was converted to Islam. On May 17,
1974, he married petitioner in accordance with Islamic rites. He returned
to the Philippines in January 1979.
On January 13, 1979, petitioner and her two children with Banez, (twoyear old Marina and nine-month old Nikulas) arrived in Manila as the
"guests" of Banez. The latter made it appear that he was just a friend of
the family of petitioner and was merely repaying the hospitability
extended to him during his stay in Indonesia.
When petitioner and her two children arrived at the Ninoy Aquino
International Airport on January 13, 1979, Banez, together with Marina
Cabael, met them.
Banez executed an "Affidavit of Guaranty and Support," for his "guests,"
stating inter alia, that:
That I am the guarantor for the entry into the
Philippines of Mrs. Djumantan, 42 years old, and her
two minor children, MARINA, 2 years old, and
NIKULAS, 9 months old, all Indonesian citizens, who
are coming as temporary visitors.
That I am willing to guaranty them out of gratitude to
their family for the hospitality they have accorded me
during the few years that I have stayed in Indonesia
in connection with my employment thereat.

That I guaranty they are law abiding citizens and I

guaranty their behavior while they are in the
Philippines; I also guaranty their support and that
they will not become a public charge.
That I guaranty their voluntary departure upon the
termination of the authorized stay granted them by
the Government (Rollo, p. 41).
As "guests," petitioner and her two children lived in the house of Banez.
Petitioner and her children were admitted to the Philippines as
temporary visitors under Section 9(a) of the Immigration Act of 1940.
In 1981, Marina Cabael discovered the true relationship of her husband
and petitioner. She filed a complaint for "concubinage" with the
Municipal Trial Court of Urdaneta, Pangasinan against the two. This
case was, however, dismissed for lack of merit.

Philippines. We revoke the Section 13(a) visa

previously granted to her (Rollo, p. 23).
Public respondents denied petitioner's motion for reconsideration in their
Resolution dated January 29, 1991 (Rollo, pp. 31-33).
Hence, this petition.
We issued a temporary restraining order, directing public respondents to
cease and desist from executing or implementing the Decision dated
September 27, 1990 and the Resolution dated January 29, 1991 (Rollo,
pp. 34-36).
On September 20, 1994, Leonardo C. Banez manifested that his father
died on August 14, 1994 and that he and his mother were withdrawing
their objection to the granting of a permanent resident visa to petitioner
(Rollo, pp. 173-175).
II

On March 25, 1982, the immigration status of petitioner was changed

from temporary visitor to that of permanent resident under Section 13(a)
of the same law. On April 14, 1982, petitioner was issued an alien
certificate of registration.
Not accepting the set-back, Banez' eldest son, Leonardo, filed a letter
complaint with the Ombudsman, who subsequently referred the letter to
the CID. On the basis of the said letter, petitioner was detained at the
CID detention cell. She later released pending the deportation
proceedings (DEP Case No. 90-400) after posting a cash bond (Rollo,
pp. 15-16). Thereafter, she manifested to the CID that she be allowed to
depart voluntarily from the Philippines and asked for time to purchase
her airline ticket (Rollo, p. 10). However, she a change of heart and
moved for the dismissal of the deportation case on the ground that she
was validly married to a Filipino citizen (Rollo, pp. 11-12).
In the Decision dated September 27, 1990, the CID, through public
respondents, disposed as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, the
Board of Commissioners finds the second marriage
of Bernardo Banes to respondent Djumantan
irregular and not in accordance with the laws of the

Petitioner claims that her marriage to Banez was valid under Article 27
of P.D. No. 1085, the Muslim Code, which recognizes the practice of
polyandry by Muslim males. From that premise, she argues that under
Articles 109 of the Civil Code of the Philippines, Article 68 of the Family
Code and Article 34 of the Muslim Code, the husband and wife are
obliged to live together and under Article 110 of the Civil Code of the
Philippines, the husband is given the right to fix the conjugal residence.
She claims that public respondents have no right to order the couple to
live separately (Rollo, pp. 5-7).
When asked to comment on the petition, the Solicitor General took the
position that the CID could not order petitioner's deportation because its
power to do so had prescribed under Section 37 (b) of the Immigration
Act of 1940 (Rollo, pp. 57-74).

finding that she was not lawfully admitted into the country and she did
not lawfully acquire permanent residency, the next question is whether
the power to deport her has prescribed.
There was a blatant abuse of our immigration laws in effecting
petitioner's entry into the country and the change of her immigration
status from temporary visitor to permanent resident. All such privileges
were obtained through misinterpretation.
Never was the marriage of petitioner to Banez disclosed to the
immigration authorities in her applications for temporary visitor's visa
and for permanent residency.
The civil status of an alien applicant for admission as a temporary visitor
is a matter that could influence the exercise of discretion on the part of
the immigration authorities. The immigration authorities would be less
inclined to allow the entry of a woman who claims to have entered into a
marriage with a Filipino citizen, who is married to another woman
(Cf. Shiu Shin Man v. Galang, 3 SCRA 871 [1961]).
Generally, the right of the President to expel or deport aliens whose
presence is deemed inimical to the public interest is as absolute and
unqualified as the right to prohibit and prevent their entry into the country
(Annotations, 8 ALR 1286). this right is based on the fact that since the
aliens are not part of the nation, their admission into the territory is a
matter of pure permission and simple tolerance which creates no
obligation on the part of the government to permit them to stay (3 Am.
Jur. 2d. 72).
The interest, which an alien has in being admitted into or allowed to
continue to reside in the country, is protected only so far as Congress
may choose to protect it (United States ex rel. Kaloudis v. Shauhnessy
180 F. 2d. 489).

III

There is no law guaranteeing aliens married to Filipino citizens the right

to be admitted, much less to be given permanent residency, in the
Philippines.

We need not resolve the validity of petitioner's marriage to Banez, if

under the law the CID can validly deport petitioner as an "undesirable
alien" regardless of her marriage to a Filipino citizen. Therefore, to be
first resolved is the question on petitioner's immigration status,
particularly the legality of her admission into the country and the change
of her status from temporary visitor to permanent resident. Upon a

The fact of marriage by an alien to a citizen does not withdraw her from
the operation of the immigration laws governing the admission and
exclusion of aliens (United States ex rel. Knauff v. Shauhnessy, 338 US
537 94 L. Ed. 317, 70 S. Ct. 309 [1950]; Low Wah Suey v. Backus, 225
US 460 56 L. Ed. 1165, 32 S. Ct. 734 [1912]; Annotations, 71 ALR

1213). Marriage of an alien woman to a Filipino husband does not ipso

facto make her a Filipino citizen and does not excuse her from her
failure to depart from the country upon the expiration of her extended
stay here as an alien (Joaquin v. Galang, 33 SCRA 362 [1970]).
Under Section 9 of the Immigration Act of 1940, it is not mandatory for
the CID to admit any alien who applies for a visitor's visa. Once admitted
into the country, the alien has no right to an indefinite stay. Under
Section 13 of the law, an alien allowed to stay temporarily may apply for
a change of status and "may be admitted" as a permanent resident.
Among those considered qualified to apply for permanent residency if
the wife or husband of a Philippine citizen (Immigration Act of 1940, Sec.
13[a]). The entry of aliens into the country and their admission as
immigrants is not a matter of right, even if they are legally married to
Filipino citizens.
IV
We now address the issue raised by the Solicitor General that the right
of public respondents to deport petitioner has prescribed, citing Section
37(b) of the Immigration Act of 1940.
Said Section 37(b) provides:
Deportation may be effected under clauses 2, 7, 8,
11 and 12 of paragraph (a) of this section at any
time after entry, but shall not be effected under any
clause unless the arrest in the deportation
proceedings is made within five years after the
cause for deportation arises. Deportation under
clauses 3 and 4 shall not be effected if the court, or
judge thereof, when sentencing the alien, shall
recommend to the Commissioner of Immigration that
the alien be not deported (As amended by Rep. Act
No. 503).
Section 37(a) of the said law mentioned in Section 37(b) thereof
provides:
The following aliens shall be arrested upon the
warrant of the Commissioner of Immigration or of
any other officer designated by him for the purpose
and deported upon the warrant of the Commissioner

of Immigration after a determination by the Board of

Commissioners of the existence of the ground for
deportation as charged against the alien:
1) Any alien who enters the Philippines after the
effective date of this Act by means of false and
misleading statements or without inspection and
admission by the immigration authorities at a
designating port of entry or at any place other than
at a designated port of entry.
2) Any alien who enters the Philippines after the
effective date of this Act, who was not lawfully
admissible at the time of entry;
3) Any alien who, after the effective date of this Act,
is convicted in the Philippines and sentenced for a
term of one year or more for a crime involving moral
turpitude committed within five years after his entry,
is so convicted and sentenced more than once;
4) Any alien who is convicted and sentenced for a
violation of the law governing prohibited drugs;
5) Any alien who practices prostitution or is an
inmate of a house of prostitution or is connected with
the management of a house of prostitution, or is a
procurer;
6) Any alien who becomes a public charge within
five years after entry from causes not affirmatively
shown to have arisen subsequent to entry;
7) Any alien who remains in the Philippines in
violation of any limitation or condition under which
he was admitted a non-immigrant;
8) Any alien who believes in, advises, advocates or
teaches the overthrow by force and violence of the
Government of the Philippines, or of constituted law
and authority, or who disbelieves in or is opposed to
organized government, or who advises, advocates,
or teaches the assault or assassination of public

officials because of their office, or who advises,

advocates, or teaches the unlawful destruction of
property, or who is a member of or affiliated with any
organization entertaining, advocating or teaching
such doctrines, or who on any manner whatsoever
lends assistance, financial or otherwise, to the
dissemination of such doctrines;
9) Any alien who commits any of the acts described
in Sections forty-five and forty-six of this Act,
independent of criminal action which may be brought
against him: Provided, That in the case of an alien
who, for any reason, is convicted and sentenced to
suffer both imprisonment and deportation, said alien
shall first serve the entire period of his imprisonment
before he is actually deported:Provided, however,
That the imprisonment may be waived by the
Commissioner of Immigration with the consent of the
Department Head, and upon payment by the alien
concerned of such amount as the Commissioner
may fix and approved by the Department Head, and
upon payment by the alien concerned of such
amount as the Commissioner may fix and approved
by the Department Head (as amended by R.A. No.
144);
10) Any alien who, at any time within five years after
entry, shall have been convicted of violating the
provisions of the Philippine Commonwealth Act
Numbered Six hundred and fifty-three, otherwise
known as the Philippine Alien Registration Act of
1941 (now Republic Act No. 562), or who, at any
time after entry, shall have been convicted more
than once of violating the provisions of the same Act;
11) Any alien who engages in profiteering, hoarding,
or black-marketing, independent of any criminal
action which may be brought against him;
12) Any alien who is convicted of any offense
penalized under Commonwealth Act Numbered Four
hundred and seventy-three, otherwise known as the
Revised Naturalization Laws of the Philippines, or

any law relating to acquisition of Philippine

citizenship;
13) Any alien who defrauds his creditor by
absconding or alienating properties, to prevent them
from being attached or executed.
Under clause 1 of Section 37(a), an "alien who enters the Philippines
after the effective date of this Act by means of false and misleading
statements or without inspection and admission by the immigration
authorities at a designated port of entry or at any place other than at a
designated port of entry" is subject to deportation.
The deportation of an alien under said clause of Section 37(a) has a
prescriptive period and "shall not be effected ... unless the arrest in the
deportation proceedings is made within five years after the cause for
deportation arises" (Immigration Act of 1940, Sec. 37[b]).
Congress may impose a limitation of time for the deportation of alien
from the country (Costanzo v. Tillinghast, 287 US 341 77 L. Ed. 350, 53
S. Ct. 152 [1932]; Guiney v. Bonham [CA 9] 261 F. 582, 8 ALR 1282).
In Board of Commissioners (CID) v. Dela Rosa, 197 SCRA 853 (1991),
we held that under Section 37(b) of the Immigration Act of 1940, the
deportation of an alien may be barred after the lapse of five years after
the cause of deportation arises. Justice Feliciano, in his dissenting
opinion, qualified the broad statement of the law as follows:
Examination of the above quoted Section 37 (b)
shows that the five (5) year limitation is applicable
only where deportation is sought to be effected
under clauses of Section 37 (a) other than clauses
2, 7, 8, 11 and 12; that where deportation or
exclusion is sought to be effected under clauses of
Section 37(a), no period of limitation is applicable;
and that to the contrary, deportation or exclusion
may be effected "at any time after entry."

Section. In respect to clauses 2, 7, 8, 11, and 12, the

limitation does not apply.
In Lam Shee v. Bengzon, 93 Phil. 1065 (1953), the alien admitted that
she had gained entrance into the Philippines fraudulently by making use
of the name of a Chinese resident-merchant other than that of her lawful
husband. The Court, however, held that she could no longer be deported
"for the simple reason that more than 5 years had elapsed from the date
of her admission."

SO ORDERED.
EN BANC

The right of public respondents to deport petitioner has prescribed.

Petitioner was admitted and allowed entry into the Philippines on
January 13, 1979 on the basis of false and misleading statements in her
application and in the other supporting documents submitted to the
immigration authorities. Leonardo C. Banez first complained with the
CID on November 19, 1980 about the manner petitioner was admitted
into the country and asked for her deportation (Rollo, pp. 77-78). After
the EDSA Revolution, he sent a follow-up letter to the CID requesting
action on his 1980 letter-complaint (Rollo, p. 78).
Tolling the prescriptive period from November 19, 1980, when Leonardo
C. Banez informed the CID of the illegal entry of petitioner into the
country, more than five years had elapsed before the issuance of the
order of her deportation on September 27, 1990.
In their Comment, public respondents urged that what is barred under
Section 37(b) is the deportation of an alien and claimed that what they
ordered was not the deportation of petitioner but merely the revocation
of Section 13(a) which refers to the visa previously granted her (Rollo, p.
102).
The "arrest" contemplated by Section 37(b) refers to the arrest for the
purpose of carrying out an order for deportation and not the arrest prior
to proceedings to determine the right of the alien to stay in the country.
When public respondents revoked the permanent residence visa issued
to petitioner, they, in effect, ordered her arrest and deportation as an
overstaying alien.

Justice Davide, in his dissenting opinion, clarified:

Note that the five-year period applies only to clauses
other than 2, 7, 8, 11 and 12 of paragraph (a) of the

The Decision of the Board of Commissioners dated September 27, 1990

revoking the issuance of the permanent resident visa to petitioner and
the Resolution dated January 29, 1991 are REVERSED.

WHEREFORE, the petition is GRANTED and the temporary restraining

order issued on June 4, 1991 is MADE PERMANENT.

[G.R. No. 135083. May 26, 1999]

ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS

MANZANO
and
the
COMMISSION
ON
ELECTIONS, respondents.
DECISION
MENDOZA, J.:
Petitioner Ernesto S. Mercado and private respondent Eduardo B.
Manzano were candidates for vice mayor of the City of Makati in the
May 11, 1998 elections. The other one was Gabriel V. Daza III. The
results of the election were as follows:
Eduardo B. Manzano
Ernesto S. Mercado
Gabriel V. Daza III

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

The proclamation of private respondent was suspended in view of

a pending petition for disqualification filed by a certain Ernesto Mamaril
who alleged that private respondent was not a citizen of the Philippines
but of the United States.
In its resolution, dated May 7, 1998,[2] the Second Division of the
COMELEC granted the petition of Mamaril and ordered the cancellation
of the certificate of candidacy of private respondent on the ground that
he is a dual citizen and, under 40(d) of the Local Government Code,
persons with dual citizenship are disqualified from running for any
elective position. The COMELECs Second Division said:

What is presented before the Commission is a petition for

disqualification of Eduardo Barrios Manzano as candidate for the office
of Vice-Mayor of Makati City in the May 11, 1998 elections. The petition
is based on the ground that the respondent is an American citizen based
on the record of the Bureau of Immigration and misrepresented himself
as a natural-born Filipino citizen.

The motion was not resolved. Instead, on August 31, 1998, the
COMELEC en banc rendered its resolution. Voting 4 to 1, with one
commissioner abstaining, the COMELEC en banc reversed the ruling of
its Second Division and declared private respondent qualified to run for
vice mayor of the City of Makati in the May 11, 1998 elections. [5] The
pertinent portions of the resolution of the COMELEC en banc read:

In his answer to the petition filed on April 27, 1998, the respondent
admitted that he is registered as a foreigner with the Bureau of
Immigration under Alien Certificate of Registration No. B-31632 and
alleged that he is a Filipino citizen because he was born in 1955 of a
Filipino father and a Filipino mother. He was born in the United States,
San Francisco, California, on September 14, 1955, and is considered an
American citizen under US Laws. But notwithstanding his registration as
an American citizen, he did not lose his Filipino citizenship.

As aforesaid, respondent Eduardo Barrios Manzano was born in San

Francisco, California, U.S.A. He acquired US citizenship by operation
of the United States Constitution and laws under the principle of jus soli.

Judging from the foregoing facts, it would appear that respondent

Manzano is both a Filipino and a US citizen. In other words, he holds
dual citizenship.
The question presented is whether under our laws, he is disqualified
from the position for which he filed his certificate of candidacy. Is he
eligible for the office he seeks to be elected?
Under Section 40(d) of the Local Government Code, those holding dual
citizenship are disqualified from running for any elective local position.
WHEREFORE, the Commission hereby declares the respondent
Eduardo Barrios Manzano DISQUALIFIED as candidate for Vice-Mayor
of Makati City.
On May 8, 1998, private respondent filed a motion for
reconsideration.[3] The motion remained pending even until after the
election held on May 11, 1998.
Accordingly, pursuant to Omnibus Resolution No. 3044, dated May
10, 1998, of the COMELEC, the board of canvassers tabulated the votes
cast for vice mayor of Makati City but suspended the proclamation of the
winner.
On May 19, 1998, petitioner sought to intervene in the case for
disqualification.[4] Petitioners motion was opposed by private
respondent.

He was also a natural born Filipino citizen by operation of the 1935

Philippine Constitution, as his father and mother were Filipinos at the
time of his birth. At the age of six (6), his parents brought him to the
Philippines using an American passport as travel document. His parents
also registered him as an alien with the Philippine Bureau of
Immigration. He was issued an alien certificate of registration. This,
however, did not result in the loss of his Philippine citizenship, as he did
not renounce Philippine citizenship and did not take an oath of
allegiance to the United States.

We declare respondent Eduardo Luis Barrios Manzano to be

QUALIFIED as a candidate for the position of vice-mayor of Makati City
in the May 11, 1998, elections.
ACCORDINGLY, the Commission directs the Makati City Board of
Canvassers, upon proper notice to the parties, to reconvene and
proclaim the respondent Eduardo Luis Barrios Manzano as the winning
candidate for vice-mayor of Makati City.
Pursuant to the resolution of the COMELEC en banc, the board of
canvassers, on the evening of August 31, 1998, proclaimed private
respondent as vice mayor of the City of Makati.
This is a petition for certiorari seeking to set aside the aforesaid
resolution of the COMELEC en banc and to declare private respondent
disqualified to hold the office of vice mayor of Makati City. Petitioner
contends that
[T]he COMELEC en banc ERRED in holding that:
A. Under Philippine law, Manzano was no longer a U.S. citizen when he:

It is an undisputed fact that when respondent attained the age of

majority, he registered himself as a voter, and voted in the elections of
1992, 1995 and 1998, which effectively renounced his US citizenship
under American law. Under Philippine law, he no longer had U.S.
citizenship.
At the time of the May 11, 1998 elections, the resolution of the Second
Division, adopted on May 7, 1998, was not yet final. Respondent
Manzano obtained the highest number of votes among the candidates
for vice-mayor of Makati City, garnering one hundred three thousand
eight hundred fifty three (103,853) votes over his closest rival, Ernesto
S. Mercado, who obtained one hundred thousand eight hundred ninety
four (100,894) votes, or a margin of two thousand nine hundred fifty nine
(2,959) votes. Gabriel Daza III obtained third place with fifty four
thousand two hundred seventy five (54,275) votes. In applying election
laws, it would be far better to err in favor of the popular choice than be
embroiled in complex legal issues involving private international law
which may well be settled before the highest court (Cf. Frivaldo vs.
Commission on Elections, 257 SCRA 727).
WHEREFORE, the Commission en banc hereby REVERSES the
resolution of the Second Division, adopted on May 7, 1998, ordering the
cancellation of the respondents certificate of candidacy.

1.
He renounced his U.S. citizenship when he attained the age of
majority when he was already 37 years old; and,
2.
He renounced his U.S. citizenship when he (merely) registered
himself as a voter and voted in the elections of 1992, 1995 and 1998.
B. Manzano is qualified to run for and or hold the elective office of ViceMayor of the City of Makati;
C. At the time of the May 11, 1998 elections, the resolution of the
Second Division adopted on 7 May 1998 was not yet final so that,
effectively, petitioner may not be declared the winner even assuming
that Manzano is disqualified to run for and hold the elective office of
Vice-Mayor of the City of Makati.
We first consider the threshold procedural issue raised by private
respondent Manzano whether petitioner Mercado has personality to
bring this suit considering that he was not an original party in the case
for disqualification filed by Ernesto Mamaril nor was petitioners motion
for leave to intervene granted.

I. PETITIONER'S RIGHT TO BRING THIS SUIT

Private respondent cites the following provisions of Rule 8 of the

Rules of Procedure of the COMELEC in support of his claim that
petitioner has no right to intervene and, therefore, cannot bring this suit
to set aside the ruling denying his motion for intervention:
Section 1. When proper and when may be permitted to
intervene. Any person allowed to initiate an action or proceeding
may, before or during the trial of an action or proceeding, be permitted
by the Commission, in its discretion to intervene in such action or
proceeding, if he has legal interest in the matter in litigation, or in the
success of either of the parties, or an interest against both, or when he
is so situated as to be adversely affected by such action or proceeding.
....
Section 3. Discretion of Commission. In allowing or disallowing a
motion for intervention, the Commission or the Division, in the exercise
of its discretion, shall consider whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the original parties
and whether or not the intervenors rights may be fully protected in a
separate action or proceeding.
Private respondent argues that petitioner has neither legal interest in the
matter in litigation nor an interest to protect because he is a defeated
candidate for the vice-mayoralty post of Makati City [who] cannot be
proclaimed as the Vice-Mayor of Makati City even if the private
respondent be ultimately disqualified by final and executory judgment.
The flaw in this argument is it assumes that, at the time petitioner
sought to intervene in the proceedings before the COMELEC, there had
already been a proclamation of the results of the election for the vice
mayoralty contest for Makati City, on the basis of which petitioner came
out only second to private respondent. The fact, however, is that there
had been no proclamation at that time. Certainly, petitioner had, and still
has, an interest in ousting private respondent from the race at the time
he sought to intervene. The rule in Labo v. COMELEC,[6] reiterated in
several cases,[7] only applies to cases in which the election of the
respondent is contested, and the question is whether one who placed
second to the disqualified candidate may be declared the winner. In the
present case, at the time petitioner filed a Motion for Leave to File
Intervention on May 20, 1998, there had been no proclamation of the
winner, and petitioners purpose was precisely to have private

respondent disqualified from running for [an] elective local position

under 40(d) of R.A. No. 7160. If Ernesto Mamaril (who originally
instituted the disqualification proceedings), a registered voter of Makati
City, was competent to bring the action, so was petitioner since the latter
was a rival candidate for vice mayor of Makati City.

The disqualification of private respondent Manzano is being

sought under 40 of the Local Government Code of 1991 (R.A. No.
7160), which declares as disqualified from running for any elective local
position: . . . (d) Those with dual citizenship. This provision is
incorporated in the Charter of the City of Makati. [8]

Nor is petitioners interest in the matter in litigation any less

because he filed a motion for intervention only on May 20, 1998, after
private respondent had been shown to have garnered the highest
number of votes among the candidates for vice mayor. That petitioner
had a right to intervene at that stage of the proceedings for the
disqualification against private respondent is clear from 6 of R.A. No.
6646, otherwise known as the Electoral Reforms Law of 1987, which
provides:

Invoking the maxim dura lex sed lex, petitioner, as well as the
Solicitor General, who sides with him in this case, contends that through
40(d) of the Local Government Code, Congress has command[ed] in
explicit terms the ineligibility of persons possessing dual allegiance to
hold local elective office.

Any candidate who has been declared by final judgment to be

disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry, or protest and,
upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of guilt is strong.
Under this provision, intervention may be allowed in proceedings
for disqualification even after election if there has yet been no final
judgment rendered.
The failure of the COMELEC en banc to resolve petitioners
motion for intervention was tantamount to a denial of the motion,
justifying petitioner in filing the instant petition for certiorari. As the
COMELEC en banc instead decided the merits of the case, the present
petition properly deals not only with the denial of petitioners motion for
intervention but also with the substantive issues respecting private
respondents alleged disqualification on the ground of dual citizenship.
This brings us to the next question, namely, whether private
respondent Manzano possesses dual citizenship and, if so, whether he
is disqualified from being a candidate for vice mayor of Makati City.

II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION

To begin with, dual citizenship is different from dual

allegiance. The former arises when, as a result of the concurrent
application of the different laws of two or more states, a person is
simultaneously considered a national by the said states. [9] For instance,
such a situation may arise when a person whose parents are citizens of
a state which adheres to the principle of jus sanguinis is born in a state
which follows the doctrine of jus soli. Such a person, ipso facto and
without any voluntary act on his part, is concurrently considered a citizen
of both states. Considering the citizenship clause (Art. IV) of our
Constitution, it is possible for the following classes of citizens of the
Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign
countries which follow the principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien
fathers if by the laws of their fathers country such children are citizens of
that country;
(3) Those who marry aliens if by the laws of the latters country the
former are considered citizens, unless by their act or omission they are
deemed to have renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines
may, without performing any act, be also a citizen of another state; but
the above cases are clearly possible given the constitutional provisions
on citizenship.
Dual allegiance, on the other hand, refers to the situation in which
a person simultaneously owes, by some positive act, loyalty to two or
more states. While dual citizenship is involuntary, dual allegiance is the
result of an individuals volition.
With respect to dual allegiance, Article IV, 5 of the Constitution
provides: Dual allegiance of citizens is inimical to the national interest
and shall be dealt with by law. This provision was included in the 1987

Constitution at the instance of Commissioner Blas F. Ople who

explained its necessity as follows:[10]
. . . I want to draw attention to the fact that dual allegiance is not dual
citizenship. I have circulated a memorandum to the Bernas Committee
according to which a dual allegiance and I reiterate a dual
allegiance is larger and more threatening than that of mere double
citizenship which is seldom intentional and, perhaps, never
insidious. That is often a function of the accident of mixed marriages or
of birth on foreign soil. And so, I do not question double citizenship at
all.
What we would like the Committee to consider is to take constitutional
cognizance of the problem of dual allegiance. For example, we all know
what happens in the triennial elections of the Federation of FilipinoChinese Chambers of Commerce which consists of about 600 chapters
all over the country. There is a Peking ticket, as well as a Taipei
ticket. Not widely known is the fact that the Filipino-Chinese community
is represented in the Legislative Yuan of the Republic of China in
Taiwan. And until recently, the sponsor might recall, in Mainland China
in the Peoples Republic of China, they have the Associated Legislative
Council for overseas Chinese wherein all of Southeast Asia including
some European and Latin countries were represented, which was
dissolved after several years because of diplomatic friction. At that time,
the Filipino-Chinese were also represented in that Overseas Council.
When I speak of double allegiance, therefore, I speak of this unsettled
kind of allegiance of Filipinos, of citizens who are already Filipinos but
who, by their acts, may be said to be bound by a second allegiance,
either to Peking or Taiwan. I also took close note of the concern
expressed by some Commissioners yesterday, including Commissioner
Villacorta, who were concerned about the lack of guarantees of thorough
assimilation, and especially Commissioner Concepcion who has always
been worried about minority claims on our natural resources.
Dual allegiance can actually siphon scarce national capital to Taiwan,
Singapore, China or Malaysia, and this is already happening. Some of
the great commercial places in downtown Taipei are Filipino-owned,
owned by Filipino-Chinese it is of common knowledge in Manila. It
can mean a tragic capital outflow when we have to endure a capital
famine which also means economic stagnation, worsening
unemployment and social unrest.

And so, this is exactly what we ask that the Committee kindly
consider incorporating a new section, probably Section 5, in the article
on Citizenship which will read as follows: DUAL ALLEGIANCE IS
INIMICAL TO CITIZENSHIP AND SHALL BE DEALT WITH
ACCORDING TO LAW.
In another session of the Commission, Ople spoke on the problem
of these citizens with dual allegiance, thus:[11]
. . . A significant number of Commissioners expressed their concern
about dual citizenship in the sense that it implies a double allegiance
under a double sovereignty which some of us who spoke then in a
freewheeling debate thought would be repugnant to the sovereignty
which pervades the Constitution and to citizenship itself which implies a
uniqueness and which elsewhere in the Constitution is defined in terms
of rights and obligations exclusive to that citizenship including, of course,
the obligation to rise to the defense of the State when it is threatened,
and back of this, Commissioner Bernas, is, of course, the concern for
national security. In the course of those debates, I think some noted the
fact that as a result of the wave of naturalizations since the decision to
establish diplomatic relations with the Peoples Republic of China was
made in 1975, a good number of these naturalized Filipinos still routinely
go to Taipei every October 10; and it is asserted that some of them do
renew their oath of allegiance to a foreign government maybe just to
enter into the spirit of the occasion when the anniversary of the Sun YatSen Republic is commemorated. And so, I have detected a genuine and
deep concern about double citizenship, with its attendant risk of double
allegiance which is repugnant to our sovereignty and national security. I
appreciate what the Committee said that this could be left to the
determination of a future legislature. But considering the scale of the
problem, the real impact on the security of this country, arising from, let
us say, potentially great numbers of double citizens professing double
allegiance, will the Committee entertain a proposed amendment at the
proper time that will prohibit, in effect, or regulate double citizenship?
Clearly, in including 5 in Article IV on citizenship, the concern of
the Constitutional Commission was not with dual citizens per se but with
naturalized citizens who maintain their allegiance to their countries of
origin even after their naturalization. Hence, the phrase dual
citizenship in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be
understood as referring to dual allegiance. Consequently, persons with
mere dual citizenship do not fall under this disqualification. Unlike those
with dual allegiance, who must, therefore, be subject to strict process
with respect to the termination of their status, for candidates with dual

citizenship, it should suffice if, upon the filing of their certificates of

candidacy, they elect Philippine citizenship to terminate their status as
persons with dual citizenship considering that their condition is the
unavoidable consequence of conflicting laws of different states. As
Joaquin G. Bernas, one of the most perceptive members of the
Constitutional Commission, pointed out: [D]ual citizenship is just a
reality imposed on us because we have no control of the laws on
citizenship of other countries. We recognize a child of a Filipino
mother. But whether or not she is considered a citizen of another
country is something completely beyond our control. [12]
By electing Philippine citizenship, such candidates at the same
time forswear allegiance to the other country of which they are also
citizens and thereby terminate their status as dual citizens. It may be
that, from the point of view of the foreign state and of its laws, such an
individual has not effectively renounced his foreign citizenship. That is
of no moment as the following discussion on 40(d) between Senators
Enrile and Pimentel clearly shows:[13]
SENATOR ENRILE. Mr. President, I would like to ask clarification of
line 41, page 17: Any person with dual citizenship is
disqualified to run for any elective local position. Under the
present Constitution, Mr. President, someone whose mother is
a citizen of the Philippines but his father is a foreigner is a
natural-born citizen of the Republic. There is no requirement
that such a natural born citizen, upon reaching the age of
majority, must elect or give up Philippine citizenship.
On the assumption that this person would carry two passports, one
belonging to the country of his or her father and one belonging
to the Republic of the Philippines, may such a situation
disqualify the person to run for a local government position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means
that at the moment when he would want to run for public office,
he has to repudiate one of his citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport
but the country of origin or the country of the father claims that
person, nevertheless, as a citizen? No one can
renounce. There are such countries in the world.
SENATOR PIMENTEL. Well, the very fact that he is running for
public office would, in effect, be an election for him of his
desire to be considered as a Filipino citizen.
SENATOR ENRILE. But, precisely, Mr. President, the Constitution
does not require an election. Under the Constitution, a person

whose mother is a citizen of the Philippines is, at birth, a

citizen without any overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is:
Under the Gentlemans example, if he does not renounce his
other citizenship, then he is opening himself to question. So, if
he is really interested to run, the first thing he should do is to
say in the Certificate of Candidacy that: I am a Filipino citizen,
and I have only one citizenship.
SENATOR ENRILE. But we are talking from the viewpoint of
Philippine law, Mr. President. He will always have one
citizenship, and that is the citizenship invested upon him or her
in the Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr. President. But if he
exercises acts that will prove that he also acknowledges other
citizenships, then he will probably fall under this
disqualification.
This is similar to the requirement that an applicant for
naturalization must renounce all allegiance and fidelity to any foreign
prince, potentate, state, or sovereignty [14] of which at the time he is a
subject or citizen before he can be issued a certificate of naturalization
as a citizen of the Philippines. In Parado v. Republic,[15] it was held:
[W]hen a person applying for citizenship by naturalization takes an oath
that he renounces his loyalty to any other country or government and
solemnly declares that he owes his allegiance to the Republic of the
Philippines, the condition imposed by law is satisfied and complied
with. The determination whether such renunciation is valid or fully
complies with the provisions of our Naturalization Law lies within the
province and is an exclusive prerogative of our courts. The latter should
apply the law duly enacted by the legislative department of the
Republic. No foreign law may or should interfere with its operation and
application. If the requirement of the Chinese Law of Nationality were to
be read into our Naturalization Law, we would be applying not what our
legislative department has deemed it wise to require, but what a foreign
government has thought or intended to exact. That, of course, is
absurd. It must be resisted by all means and at all cost. It would be a
brazen encroachment upon the sovereign will and power of the people
of this Republic.

III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP

The record shows that private respondent was born in San

Francisco, California on September 4, 1955, of Filipino parents. Since
the Philippines adheres to the principle of jus sanguinis, while the United
States follows the doctrine of jus soli, the parties agree that, at birth at
least, he was a national both of the Philippines and of the United
States. However, the COMELEC en banc held that, by participating in
Philippine elections in 1992, 1995, and 1998, private respondent
effectively renounced his U.S. citizenship under American law, so that
now he is solely a Philippine national.
Petitioner challenges this ruling. He argues that merely taking part
in Philippine elections is not sufficient evidence of renunciation and that,
in any event, as the alleged renunciation was made when private
respondent was already 37 years old, it was ineffective as it should have
been made when he reached the age of majority.
In holding that by voting in Philippine elections private respondent
renounced his American citizenship, the COMELEC must have in mind
349 of the Immigration and Nationality Act of the United States, which
provided that A person who is a national of the United States, whether
by birth or naturalization, shall lose his nationality by: . . . (e) Voting in
a political election in a foreign state or participating in an election or
plebiscite to determine the sovereignty over foreign territory. To be sure
this provision was declared unconstitutional by the U.S. Supreme Court
in Afroyim v. Rusk[16] as beyond the power given to the U.S. Congress to
regulate foreign relations. However, by filing a certificate of candidacy
when he ran for his present post, private respondent elected Philippine
citizenship and in effect renounced his American citizenship. Private
respondents certificate of candidacy, filed on March 27, 1998, contained
the following statements made under oath:
6. I AM A FILIPINO CITIZEN (STATE IF NATURAL-BORN
OR NATURALIZED) NATURAL-BORN
....
10.

I AM A REGISTERED VOTER OF PRECINCT

NO.
747-A,
BARANGAY
SAN
LORENZO,
CITY/MUNICIPALITY OF MAKATI, PROVINCE OF
NCR .

11.

I AM NOT A PERMANENT RESIDENT OF, OR

IMMIGRANT TO, A FOREIGN COUNTRY.

12.

I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE

ELECTED. I WILL SUPPORT AND DEFEND THE
CONSTITUTION OF THE PHILIPPINES AND WILL
MAINTAIN TRUE FAITH AND ALLEGIANCE THERETO;

THAT I WILL OBEY THE LAWS, LEGAL ORDERS AND

DECREES PROMULGATED BY THE DULY
CONSTITUTED AUTHORITIES OF THE REPUBLIC OF
THE PHILIPPINES; AND THAT I IMPOSE THIS
OBLIGATION UPON MYSELF VOLUNTARILY,
WITHOUT MENTAL RESERVATION OR PURPOSE OF
EVASION. I HEREBY CERTIFY THAT THE FACTS
STATED HEREIN ARE TRUE AND CORRECT OF MY
OWN PERSONAL KNOWLEDGE.
The filing of such certificate of candidacy sufficed to renounce his
American citizenship, effectively removing any disqualification he might
have as a dual citizen. Thus, in Frivaldo v. COMELEC it was held:[17]
It is not disputed that on January 20, 1983 Frivaldo became an
American. Would the retroactivity of his repatriation not effectively give
him dual citizenship, which under Sec. 40 of the Local Government
Code would disqualify him from running for any elective local
position? We answer this question in the negative, as there is cogent
reason to hold that Frivaldo was really STATELESS at the time he took
said oath of allegiance and even before that, when he ran for governor
in 1988. In his Comment, Frivaldo wrote that he had long renounced
and had long abandoned his American citizenshiplong before May 8,
1995. At best, Frivaldo was stateless in the interimwhen he
abandoned and renounced his US citizenship but before he was
repatriated to his Filipino citizenship.
On this point, we quote from the assailed Resolution dated December
19, 1995:
By the laws of the United States, petitioner Frivaldo lost his American
citizenship when he took his oath of allegiance to the Philippine
Government when he ran for Governor in 1988, in 1992, and in
1995. Every certificate of candidacy contains an oath of allegiance to the
Philippine Government.
These factual findings that Frivaldo has lost his foreign nationality long
before the elections of 1995 have not been effectively rebutted by
Lee. Furthermore, it is basic that such findings of the Commission are
conclusive upon this Court, absent any showing of capriciousness or
arbitrariness or abuse.
There is, therefore, no merit in petitioners contention that the oath
of allegiance contained in private respondents certificate of candidacy is

insufficient to constitute renunciation of his American

citizenship. Equally without merit is petitioners contention that, to be
effective, such renunciation should have been made upon private
respondent reaching the age of majority since no law requires the
election of Philippine citizenship to be made upon majority age.
Finally, much is made of the fact that private respondent admitted
that he is registered as an American citizen in the Bureau of Immigration
and Deportation and that he holds an American passport which he used
in his last travel to the United States on April 22, 1997. There is no merit
in this. Until the filing of his certificate of candidacy on March 21, 1998,
he had dual citizenship. The acts attributed to him can be considered
simply as the assertion of his American nationality before the termination
of his American citizenship. What this Court said in Aznar v.
COMELEC[18] applies mutatis mutandis to private respondent in the case
at bar:
. . . Considering the fact that admittedly Osmea was both a Filipino and
an American, the mere fact that he has a Certificate stating he is an
American does not mean that he is not still a Filipino. . . . [T]he
Certification that he is an American does not mean that he is not still a
Filipino, possessed as he is, of both nationalities or
citizenships. Indeed, there is no express renunciation here of Philippine
citizenship; truth to tell, there is even no implied renunciation of said
citizenship. When We consider that the renunciation needed to lose
Philippine citizenship must be express, it stands to reason that there
can be no such loss of Philippine citizenship when there is no
renunciation, either express or implied.
To recapitulate, by declaring in his certificate of candidacy that he
is a Filipino citizen; that he is not a permanent resident or immigrant of
another country; that he will defend and support the Constitution of the
Philippines and bear true faith and allegiance thereto and that he does
so without mental reservation, private respondent has, as far as the laws
of this country are concerned, effectively repudiated his American
citizenship and anything which he may have said before as a dual
citizen.
On the other hand, private respondents oath of allegiance to the
Philippines, when considered with the fact that he has spent his youth
and adulthood, received his education, practiced his profession as an
artist, and taken part in past elections in this country, leaves no doubt of
his election of Philippine citizenship.
His declarations will be taken upon the faith that he will fulfill his
undertaking made under oath. Should he betray that trust, there are

enough sanctions for declaring the loss of his Philippine citizenship

through expatriation in appropriate proceedings. In Yu v. DefensorSantiago,[19] we sustained the denial of entry into the country of
petitioner on the ground that, after taking his oath as a naturalized
citizen, he applied for the renewal of his Portuguese passport and
declared in commercial documents executed abroad that he was a
Portuguese national. A similar sanction can be taken against any one
who, in electing Philippine citizenship, renounces his foreign nationality,
but subsequently does some act constituting renunciation of his
Philippine citizenship.
WHEREFORE, the petition for certiorari is DISMISSED for lack of
merit.
SO ORDERED.
G.R. No. 86564 August 1, 1989
RAMON L. LABO, JR., petitioner,
vs.
THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND
LUIS L. LARDIZABAL, respondents
Estelito P. Mendoza for petitioner.
Rillera and Quintana for private respondent.

CRUZ, J.:
The petitioner asks this Court to restrain the Commission on Elections
from looking into the question of his citizenship as a qualification for his
office as Mayor of Baguio City. The allegation that he is a foreigner, he
says, is not the issue. The issue is whether or not the public respondent
has jurisdiction to conduct any inquiry into this matter, considering that
the petition for quo warranto against him was not filed on time.
It is noteworthy that this argument is based on the alleged tardiness not
of the petition itself but of the payment of the filing fee, which the
petitioner contends was an indispensable requirement. The fee is,
curiously enough, all of P300.00 only. This brings to mind the popular
verse that for want of a horse the kingdom was lost. Still, if it is shown
that the petition was indeed filed beyond the reglementary period, there

is no question that this petition must be granted and the challenge

abated.
The petitioner's position is simple. He was proclaimed mayor-elect of
Baguio City, on January 20, 1988. The petition for quo warranto was
filed by the private respondent on January 26, 1988, but no filing fee
was paid on that date. This fee was finally paid on February 10, 1988, or
twenty-one days after his proclamation. As the petition by itself alone
was ineffectual without the filing fee, it should be deemed filed only when
the fee was paid. This was done beyond the reglementary period
provided for under Section 253 of the Omnibus Election Code reading
as follows:
SEC. 253. Petition for quo warranto. Any voter
contesting the election of a Member of the Batasang
Pambansa, regional, provincial, or city officer on the
ground of ineligibility or of disloyalty to the Republic
of the Philippines shall file a sworn petition for quo
warranto with the Commission within ten days after
the proclamation of the result of the election.
The petitioner adds that the payment of the filing fee is required under
Rule 36, Section 5, of the Procedural Rules of the COMELEC providing
that
Sec. 5. No petition for quo warranto shall be given
due course without the payment of a filing fee in the
amount of Three Hundred Pesos (P300.00) and the
legal research fee as required by law.
and stresses that there is abundant jurisprudence holding that the
payment of the filing fee is essential to the timeliness of the filling of the
petition itself. He cites many rulings of the Court to this effect,
specifically Manchester v. Court of Appeals. 1
For his part, the private respondent denies that the filing fee was paid
out of time. In fact he says, it was fliedahead of time. His point is that
when he filed his "Petition for Quo Warranto with Prayer for Immediate
Annulment of Proclamation and Restraining Order or Injunction" on
January 26, 1988, the COMELEC treated it as a pre-proclamation
controversy and docketed it as SPC Case No. 88-288. No docket fee
was collected although it was offered. It was only on February 8, 1988,
that the COMELEC decided to treat his petition as solely for quo

warranto and re-docketed it as EPC Case No. 88-19, serving him notice
on February 10, 1988. He immediately paid the filing fee on that date.

the Manila Chronicle and the Philippine Daily Inquirer, or after the
petition was filed.

The private respondent argues further that during the period when the
COMELEC regarded his petition as a pre-proclamation controversy, the
time for filing an election protest or quo warranto proceeding was
deemed suspended under Section 248 of the Omnibus Election
Code. 2 At any rate, he says, Rule 36, Section 5, of the COMELEC
Rules of Procedure cited by the petitioner, became effective only on
November 15, 1988, seven days after publication of the said Rules in
the Official Gazette pursuant to Section 4, Rule 44 thereof. 3 These rules
could not retroact to January 26,1988, when he filed his petition with the
COMELEC.

The petitioner forgets Ta;ada v. Tuvera 4 when he argues that the

resolutions became effective "immediately upon approval" simply
because it was so provided therein. We held in that case that publication
was still necessary under the due process clause despite such effectivity
clause.

In his Reply, the petitioner argues that even if the Omnibus Election
Code did not require it, the payment of filing fees was still necessary
under Res. No. 1996 and, before that, Res. No. 1450 of the respondent
COMELEC, promulgated on January 12, 1988, and February 26, 1980,
respectively. To this, the private respondent counters that the latter
resolution was intended for the local elections held on January 30, 1980,
and did not apply to the 1988 local elections, which were supposed to be
governed by the first-mentioned resolution. However, Res. No. 1996
took effect only on March 3, 1988, following the lapse of seven days
after its publication as required by RA No. 6646, otherwise known as the
Electoral Reform Law of 1987, which became effective on January 5,
1988. Its Section 30 provides in part:
Sec. 30. Effectivity of Regulations and Orders of the
Commission. The rules and regulations
promulgated by the Commission shall take effect on
the seventh day after their publication in the Official
Gazette or in at least (2) daily newspapers of
general circulation in the Philippines.
The Court has considered the arguments of the parties and holds that
the petition for quo warranto was filed on time. We agree with the
respondents that the fee was paid during the ten-day period as extended
by the pendency of the petition when it was treated by the COMELEC as
a pre-proclamation proceeding which did not require the payment of a
filing fee. At that, we reach this conclusion only on the assumption that
the requirement for the payment of the fees in quo warranto proceedings
was already effective. There is no record that Res. No. 1450 was even
published; and as for Res. No. 1996, this took effect only on March 3,
1988, seven days after its publication in the February 25, 1988 issues of

In any event, what is important is that the filing fee was paid, and
whatever delay there may have been is not imputable to the private
respondent's fault or neglect. It is true that in the Manchester Case, we
required the timely payment of the filing fee as a precondition for the
timeliness of the filing of the case itself. In Sun Insurance Office, Ltd. v.
Asuncion, 5 however this Court, taking into account the special
circumstances of that case, declared:
This Court reiterates the rule that the trial court
acquires jurisdiction over a case only upon the
payment of the prescribed filing fee. However, the
court may allow the payment of the said fee within a
reasonable time. In the event of non-compliance
therewith, the case shall be dismissed.
The same idea is expressed in Rule 42, Section 18, of the COMELEC
Rules of Procedure adopted on June 20, 1988, thus:
Sec. 18. Non-payment of prescribed fees. If the
fees above prescribed are not paid, theCommission
may refuse to take action thereon until they are paid
and may dismiss the action or the proceeding.
(Emphasis supplied.)
The Court notes that while arguing the technical point that the petition
for quo warranto should be dismissed for failure to pay the filing fee on
time, the petitioner would at the same time minimize his alleged lack of
citizenship as "a futile technicality," It is regrettable, to say the least, that
the requirement of citizenship as a qualification for public office can be
so demeaned. What is worse is that it is regarded as an even less
important consideration than the reglementary period the petitioner
insists upon.

This matter should normally end here as the sole issue originally raised
by the petitioner is the timeliness of thequo warranto proceedings
against him. However, as his citizenship is the subject of that
proceeding, and considering the necessity for an early resolution of that
more important question clearly and urgently affecting the public interest,
we shall directly address it now in this same action.
The Court has similarly acted in a notable number of cases, thus:
From the foregoing brief statement of the nature of
the instant case, it would appear that our sole
function in this proceeding should be to resolve the
single issue of whether or not the Court of Appeals
erred in ruling that the motion for new trial of the
GSIS in question should indeed be deemedpro
forma. But going over the extended pleadings of
both parties, the Court is immediately impressed that
substantial justice may not be timely achieved, if we
should decide this case upon such a technical
ground alone. We have carefully read all the
allegations and arguments of the parties, very ably
and comprehensively expounded by evidently
knowledgeable and unusually competent counsel,
and we feel we can better serve the interests of
justice by broadening the scope of our inquiry, for as
the record before us stands, we see that there is
enough basis for us to end the basic controversy
between the parties here and now, dispensing,
however, with procedural steps which would not
anyway affect substantially the merits of their
respective claims. 6
xxx
While it is the fault of the petitioner for appealing to
the wrong court and thereby allowing the period for
appeal to lapse, the more correct procedure was for
the respondent court to forward the case to the
proper court which was the Court of Appeals for
appropriate action. Considering, however, the length
of time that this case has been pending, we apply
the rule in the case of Del Castillo v. Jaymalin, (112
SCRA 629) and follow the principle enunciated in

Alger Electric, Inc. v. Court of Appeals, (135 SCRA

37) which states:
... it is a cherished rule of
procedure for this Court to
always strive to settle the entire
controversy in a single
proceeding leaving no root or
branch to bear the seeds of
future litigation. No useful
purpose will be served if this
case is remanded to the trial
court only to have its decision
raised again to the Intermediate
Appellate Court and from there
to this Court. (p. 43)
Only recently in the case of Beautifont, Inc., et al. v.
Court of Appeals, et al. (G.R. No. 50141, January
29, 1988), we stated that:
... But all those relevant facts are now before this
Court. And those facts dictate the rendition of a
verdict in the petitioner's favor. There is therefore no
point in referring the case back to the Court of
Appeals. The facts and the legal propositions
involved will not change, nor should the ultimate
judgment. Considerable time has already elapsed
and, to serve the ends of justice, it is time that the
controversy is finally laid to rest. (See Sotto v.
Samson, 5 SCRA 733; Republic v. Paredes, 108
Phil. 57; Lianga Lumber Co. v. Lianga Timber Co.,
Inc., 76 SCRA 197; Erico v. Heirs of Chigas, 98
SCRA 575; Francisco v. City of Davao, 12 SCRA
628; Valencia v. Mabilangan, 105 Phil.
162).lwph1.t Sound practice seeks to
accommodate the theory which avoids waste of
time, effort and expense, both to the parties and the
government, not to speak of delay in the disposal of
the case (cf. Fernandez v. Garcia, 92 Phil. 592,
597). A marked characteristic of our judicial set-up is
that where the dictates of justice so demand ... the
Supreme Court should act, and act with finality.' (Li
Siu Liat v. Republic, 21 SCRA 1039, 1046, citing

Samal v. CA, 99 Phil. 230 and U.S. v. Gimenez, 34

Phil. 74). In this case, the dictates of justice do
demand that this Court act, and act with finality. 7
xxx
Remand of the case to the lower court for further
reception of evidence is not necessary where the
court is in a position to resolve the dispute based on
the records before it. On many occasions, the Court,
in the public interest and the expeditious
administration of justice, has resolved actions on the
merits instead of remanding them to the trial court
for further proceedings, such as where the ends of
justice would not be subserved by the remand of the
case or when public interest demands an early
disposition of the case or where the trial court had
already received all the evidence of the parties. 8
This course of action becomes all the more justified in the present case
where, to repeat for stress, it is claimed that a foreigner is holding a
public office.
We also note in his Reply, the petitioner says:
In adopting private respondent's comment,
respondent COMELEC implicitly adopted as "its
own" private respondent's repeated assertion that
petitioner is no longer a Filipino citizen. In so doing,
has not respondent COMELEC effectively
disqualified itself, by reason of prejudgment, from
resolving the petition for quo warranto filed by
private respondent still pending before it? 9
This is still another reason why the Court has seen fit to rule directly on
the merits of this case.
Going over the record, we find that there are two administrative
decisions on the question of the petitioner's citizenship. The first was
rendered by the Commission on Elections on May 12, 1982, and found
the petitioner to be a citizen of the Philippines. 10 The second was
rendered by the Commission on Immigration and Deportation on

September 13, 1988, and held that the petitioner was not a citizen of the
Philippines. 11
The first decision was penned by then COMELEC Chigas, Vicente
Santiago, Jr., with Commissioners Pabalate Savellano and Opinion
concurring in full and Commissioner Bacungan concurring in the
dismissal of the petition "without prejudice to the issue of the
respondent's citizenship being raised anew in a proper case."
Commissioner Sagadraca reserved his vote, while Commissioner Felipe
was for deferring decision until representations shall have been made
with the Australian Embassy for official verification of the petitioner's
alleged naturalization as an Australian.
The second decision was unanimously rendered by Chairman Miriam
Defensor-Santiago and Commissioners Alano and Geraldez of the
Commission on Immigration and Deportation. It is important to observe
that in the proceeding before the COMELEC, there was no direct proof
that the herein petitioner had been formally naturalized as a citizen of
Australia. This conjecture, which was eventually rejected, was merely
inferred from the fact that he had married an Australian citizen, obtained
an Australian passport, and registered as an alien with the CID upon his
return to this country in 1980.
On the other hand, the decision of the CID took into account the official
statement of the Australian Government dated August 12, 1984, through
its Consul in the Philippines, that the petitioner was still an Australian
citizen as of that date by reason of his naturalization in 1976. That
statement 12 is reproduced in full as follows:
I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by
virtue of a certificate of appointment signed and sealed by the Australian
Minister of State for Foreign Affairs on 19 October 1983, and recognized
as such by Letter of Patent signed and sealed by the Philippines Acting
Minister of Foreign Affairs on 23 November 1983, do hereby provide the
following statement in response to the subpoena Testificandum dated 9
April 1984 in regard to the Petition for disqualification against RAMON
LABO, JR. Y LOZANO (SPC No. 84-73), and do hereby certify that the
statement is true and correct.
STATEMENT
A) RAMON LABO, JR. Y LOZANO, date of birth 23
December 1934, was married in the Philippines to
an Australian citizen. As the spouse of an Australian

citizen, he was not required to meet normal

requirements for the grant of citizenship and was
granted Australian citizenship by Sydney on 28 July
1976.
B) Any person over the age of 16 years who is
granted Australian citizenship must take an oath of
allegiance or make an affirmation of allegiance. The
wording of the oath of affirmation is: "I ..., renouncing
all other allegiance ..." etc. This need not necessarily
have any effect on his former nationality as this
would depend on the citizenship laws of his former
country.
C) The marriage was declared void in the Australian
Federal Court in Sydney on 27 June 1980 on the
ground that the marriage had been bigamous.
D) According to our records LABO is still an
Australian citizen.
E) Should he return to Australia, LABO may face
court action in respect of Section 50 of Australian
Citizenship Act 1948 which relates to the giving of
false or misleading information of a material nature
in respect of an application for Australian citizenship.
If such a prosecution was successful, he could be
deprived of Australian citizenship under Section 21
of the Act.
F) There are two further ways in which LABO could
divest himself of Australian citizenship:
(i) He could make a declaration of Renunciation of
Australian citizenship under Section 18 of the
Australian Citizenship Act, or
(ii) If he acquired another nationality, (for example,
Filipino) by a formal and voluntary act other than
marriage, then he would automatically lose as
Australian citizenship under Section 17 of the Act.

IN WITNESS WHEREOF, I HAVE HEREUNTO SET

MAY HAND AND SEAL OF THE AUSTRALIAN
EMBASSY, MANILA, THIS 12th DAY OF APRIL
1984. DONE AT MANILA IN THE PHILIPPINES.
(Signed) GRAHAM C. WEST Consul
This was affirmed later by the letter of February 1,
1988, addressed to the private respondent by the
Department of Foreign Affairs reading as follows: 13

and the Affirmation of Allegiance, which declares:

AFFIRMATION OF ALLEGIANCE
I, A.B., renouncing all other allegiance, solemnly and
sincerely promise and declare that I will be faithful
and bear true allegiance to Her Majesty Elizabeth
the Second, Queen of Australia, Her heirs and
successors according to law, and that I will faithfully
observe the Laws of Australia and fulfill my duties as
an Australian citizen. 15

Sir:
With reference to your letter dated 1 February 1988,
I wish to inform you that inquiry made with the
Australian Government through the Embassy of the
Philippines in Canberra has elicited the following
information:
1) That Mr. Ramon L. Labo, Jr. acquired Australian
citizenship on 28 July 1976.
2) That prior to 17 July 1986, a candidate for
Australian citizenship had to either swear an oath of
allegiance or make an affirmation of allegiance
which carries a renunciation of "all other allegiance.
Very truly yours, For the Secretary of Foreign Affairs:
(SGD) RODOLFO SEVERINO, JR. Assistant
Secretary
The decision also noted the oath of allegiance taken by every
naturalized Australian reading as follows:
OATH OF ALLEGIANCE
I, A.B., renouncing all other allegiance, swear by
Almighty God that I will be faithful and bear true
allegiance to Her Majesty Elizabeth the Second,
Queen of Australia, Her heirs and successors
according to law, and that I will faithfully observe the
laws of Australia and fulfill my duties as an
Australian citizen. 14

The petitioner does not question the authenticity of the above evidence.
Neither does he deny that he obtained Australian Passport No. 754705,
which he used in coming back to the Philippines in 1980, when he
declared before the immigration authorities that he was an alien and
registered as such under Alien Certificate of Registration No. B323985. 16 He later asked for the change of his status from immigrant to
a returning former Philippine citizen and was granted Immigrant
Certificate of Residence No. 223809. 17 He also categorically declared
that he was a citizen of Australia in a number of sworn statements
voluntarily made by him and. even sought to avoid the jurisdiction of the
barangay court on the ground that he was a foreigner. 18
The decision of the COMELEC in 1982 quaintly dismisses all these acts
as "mistakes" that did not divest the petitioner of his citizenship,
although, as earlier noted, not all the members joined in this finding. We
reject this ruling as totally baseless. The petitioner is not an unlettered
person who was not aware of the consequences of his acts, let alone
the fact that he was assisted by counsel when he performed these acts.
The private respondent questions the motives of the COMELEC at that
time and stresses Labo's political affiliation with the party in power then,
but we need not go into that now.
There is also the claim that the decision can no longer be reversed
because of the doctrine of res judicata, but this too must be dismissed.
This doctrine does not apply to questions of citizenship, as the Court has
ruled in several cases. 19 Moreover, it does not appear that it was
properly and seasonably pleaded, in a motion to dismiss or in the
answer, having been invoked only when the petitioner filed his reply 20 to
the private respondent's comment. Besides, one of the requisites of res
judicata, to wit, identity of parties, is not present in this case.

The petitioner's contention that his marriage to an Australian national in

1976 did not automatically divest him of Philippine citizenship is
irrelevant. There is no claim or finding that he automatically ceased to be
a Filipino because of that marriage. He became a citizen of Australia
because he was naturalized as such through a formal and positive
process, simplified in his case because he was married to an Australian
citizen. As a condition for such naturalization, he formally took the Oath
of Allegiance and/or made the Affirmation of Allegiance, both quoted
above. Renouncing all other allegiance, he swore "to be faithful and bear
true allegiance to Her Majesty Elizabeth the Second, Queen of
Australia ..." and to fulfill his duties "as an Australian citizen."
The petitioner now claims that his naturalization in Australia made him at
worst only a dual national and did not divest him of his Philippine
citizenship. Such a specious argument cannot stand against the clear
provisions of CA No. 63, which enumerates the modes by which
Philippine citizenship may be lost. Among these are: (1) naturalization in
a foreign country; (2) express renunciation of citizenship; and (3)
subscribing to an oath of allegiance to support the Constitution or laws
of a foreign country, all of which are applicable to the petitioner. It is also
worth mentioning in this connection that under Article IV, Section 5, of
the present Constitution, "Dual allegiance of citizens is inimical to the
national interest and shall be dealt with by law."
Even if it be assumed that, as the petitioner asserts, his naturalization in
Australia was annulled after it was found that his marriage to the
Australian citizen was bigamous, that circumstance alone did not
automatically restore his Philippine citizenship. His divestiture of
Australian citizenship does not concern us here. That is a matter
between him and his adopted country. What we must consider is the fact
that he voluntarily and freely rejected Philippine citizenship and willingly
and knowingly embraced the citizenship of a foreign country. The
possibility that he may have been subsequently rejected by Australia, as
he claims, does not mean that he has been automatically reinstated as a
citizen of the Philippines.
Under CA No. 63 as amended by PD No. 725, Philippine citizenship may
be reacquired by direct act of Congress, by naturalization, or by
repatriation. It does not appear in the record, nor does the petitioner
claim, that he has reacquired Philippine citizenship by any of these
methods. He does not point to any judicial decree of naturalization as to
any statute directly conferring Philippine citizenship upon him. Neither
has he shown that he has complied with PD No. 725, providing that:

... (2) natural-born Filipinos who have lost their

Philippine citizenship may reacquire Philippine
citizenship through repatriation by applying with the
Special Committee on Naturalization created by
Letter of Instruction No. 270, and, if their
applications are approved, taking the necessary
oath of allegiance to the Republic of the Philippines,
after which they shall be deemed to have reacquired
Philippine citizenship. The Commission on
Immigration and Deportation shall thereupon cancel
their certificate of registration. (Emphasis supplied.)
That is why the Commission on Immigration and Deportation rejected
his application for the cancellation of his alien certificate of registration.
And that is also the reason we must deny his present claim for
recognition as a citizen of the Philippines.
The petitioner is not now, nor was he on the day of the local elections on
January 18, 1988, a citizen of the Philippines. In fact, he was not even a
qualified voter under the Constitution itself because of his
alienage. 21 He was therefore ineligible as a candidate for mayor of
Baguio City, under Section 42 of the Local Government Code providing
in material part as follows:
Sec. 42. Qualifications. An elective local official
must be a citizen of the Philippines, at least twentythree years of age on election day, a qualified voter
registered as such in the barangay, municipality, city
or province where he proposes to be elected, a
resident therein for at least one year at the time of
the filing of his certificate of candidacy, and able to
read and write English, Filipino, or any other local
language or dialect.
The petitioner argues that his alleged lack of citizenship is a "futile
technicality" that should not frustrate the will of the electorate of Baguio
City, who elected him by a "resonant and thunderous majority." To be
accurate, it was not as loud as all that, for his lead over the secondplacer was only about 2,100 votes. In any event, the people of that
locality could not have, even unanimously, changed the requirements of
the Local Government Code and the Constitution. The electorate had no
power to permit a foreigner owing his total allegiance to the Queen of
Australia, or at least a stateless individual owing no allegiance to the
Republic of the Philippines, to preside over them as mayor of their city.

Only citizens of the Philippines have that privilege over their

countrymen.
The probability that many of those who voted for the petitioner may have
done so in the belief that he was qualified only strengthens the
conclusion that the results of the election cannot nullify the qualifications
for the office now held by him. These qualifications are continuing
requirements; once any of them is lost during incumbency, title to the
office itself is deemed forfeited. In the case at bar, the citizenship and
voting requirements were not subsequently lost but were not possessed
at all in the first place on the day of the election. The petitioner was
disqualified from running as mayor and, although elected, is not now
qualified to serve as such.
Finally, there is the question of whether or not the private respondent,
who filed the quo warranto petition, can replace the petitioner as mayor.
He cannot. The simple reason is that as he obtained only the second
highest number of votes in the election, he was obviously not the choice
of the people of Baguio city.
The latest ruling of the Court on this issue is Santos v. Commission on
Elections 22 decided in 1985. In that case, the candidate who placed
second was proclaimed elected after the votes for his winning rival, who
was disqualified as a turncoat and considered a non-candidate, were all
disregarded as stray. In effect, the second placer won by default. That
decision was supported by eight members of the Court then 23 with three
dissenting 24 and another two reserving their vote. 25 One was on official
leave. 26
Re-examining that decision, the Court finds, and so holds, that it should
be reversed in favor of the earlier case ofGeronimo v. Ramos, 27 Which
represents the more logical and democratic rule. That case, which
reiterated the doctrine first announced in 1912 in Topacio vs.
Paredes 28 was supported by ten members of the Court 29 without any
dissent, although one reserved his vote, 30 another took no part 31 and
two others were on leave. 32 There the Court held:
... it would be extremely repugnant to the basic
concept of the constitutionally guaranteed right to
suffrage if a candidate who has not acquired the
majority or plurality of votes is proclaimed a winner
and imposed as the representative of a constituency,
the majority of which have positively declared
through their ballots that they do not choose him.

Sound policy dictates that public elective offices are

filled by those who have received the highest
number of votes cast in the election for that office,
and it is a fundamental Idea in all republican forms
of government that no one can be declared elected
and no measure can be declared carried unless he
or it receives a majority or plurality of the legal votes
cast in the election. (20 Corpus Juris 2nd, S 243, p.
676.)
The fact that the candidate who obtained the highest
number of votes is later declared to be disqualified
or not eligible for the office to which he was elected
does not necessarily entitle the candidate who
obtained the second highest number of votes to be
declared the winner of the elective office. The votes
cast for a dead, disqualified, or non-eligible person
may not be valid to vote the winner into office or
maintain him there. However, in the absence of a
statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast
in the sincere belief that the candidate was alive,
qualified, or eligible, they should not be treated as
stray, void or meaningless.
It remains to stress that the citizen of the Philippines must take pride in
his status as such and cherish this priceless gift that, out of more than a
hundred other nationalities, God has seen fit to grant him. Having been
so endowed, he must not lightly yield this precious advantage, rejecting
it for another land that may offer him material and other attractions that
he may not find in his own country. To be sure, he has the right to
renounce the Philippines if he sees fit and transfer his allegiance to a
state with more allurements for him. 33 But having done so, he cannot
expect to be welcomed back with open arms once his taste for his
adopted country turns sour or he is himself disowned by it as an
undesirable alien.
Philippine citizenship is not a cheap commodity that can be easily
recovered after its renunciation. It may be restored only after the
returning renegade makes a formal act of re-dedication to the country he
has abjured and he solemnly affirms once again his total and exclusive
loyalty to the Republic of the Philippines. This may not be accomplished
by election to public office.

WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a

citizen of the Philippines and therefore DISQUALIFIED from continuing
to serve as Mayor of Baguio City. He is ordered to VACATE his office
and surrender the same to the Vice-Mayor of Baguio City, once this
decision becomes final and executory. The temporary restraining order
dated January 31, 1989, is LIFTED.
Fernan, (C.J.), Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento, Cortes, Gri;o-Aquino Medialdea and
Regalado, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 160869

May 11, 2007

AASJS (ADVOCATES AND ADHERENTS OF SOCIAL JUSTICE FOR

SCHOOL TEACHERS AND ALLIED WORKERS) MEMBER - HECTOR
GUMANGAN CALILUNG, Petitioner,
vs.
THE HONORABLE SIMEON DATUMANONG, in his official capacity
as the Secretary of Justice,Respondent.
DECISION
QUISUMBING, J.:
This is an original action for prohibition under Rule 65 of the 1997
Revised Rules of Civil Procedure.
Petitioner filed the instant petition against respondent, then Secretary of
Justice Simeon Datumanong, the official tasked to implement laws
governing citizenship.1 Petitioner prays that a writ of prohibition be
issued to stop respondent from implementing Republic Act No. 9225,
entitled "An Act Making the Citizenship of Philippine Citizens Who
Acquire Foreign Citizenship Permanent, Amending for the Purpose
Commonwealth Act No. 63, As Amended, and for Other Purposes."
Petitioner avers that Rep. Act No. 9225 is unconstitutional as it violates
Section 5, Article IV of the 1987 Constitution that states, "Dual allegiance

of citizens is inimical to the national interest and shall be dealt with by

law."
Rep. Act No. 9225, signed into law by President Gloria M. Arroyo on
August 29, 2003, reads:
SECTION 1. Short Title.-This Act shall be known as the "Citizenship
Retention and Reacquisition Act of 2003."
SEC. 2. Declaration of Policy.-It is hereby declared the policy of the
State that all Philippine citizens who become citizens of another country
shall be deemed not to have lost their Philippine citizenship under the
conditions of this Act.
SEC. 3. Retention of Philippine Citizenship.-Any provision of law to the
contrary notwithstanding, natural-born citizens of the Philippines who
have lost their Philippine citizenship by reason of their naturalization as
citizens of a foreign country are hereby deemed to have reacquired
Philippine citizenship upon taking the following oath of allegiance to the
Republic:
"I ___________________________, solemnly swear (or affirm) that I will
support and defend the Constitution of the Republic of the Philippines
and obey the laws and legal orders promulgated by the duly constituted
authorities of the Philippines; and I hereby declare that I recognize and
accept the supreme authority of the Philippines and will maintain true
faith and allegiance thereto; and that I impose this obligation upon
myself voluntarily without mental reservation or purpose of evasion."
Natural-born citizens of the Philippines who, after the effectivity of this
Act, become citizens of a foreign country shall retain their Philippine
citizenship upon taking the aforesaid oath.
SEC. 4. Derivative Citizenship. - The unmarried child, whether
legitimate, illegitimate or adopted, below eighteen (18) years of age, of
those who reacquire Philippine citizenship upon effectivity of this Act
shall be deemed citizens of the Philippines.
SEC. 5. Civil and Political Rights and Liabilities. - Those who retain or
reacquire Philippine citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following
conditions:

(1) Those intending to exercise their right of suffrage must

meet the requirements under Section 1, Article V of the
Constitution, Republic Act No. 9189, otherwise known as "The
Overseas Absentee Voting Act of 2003" and other existing
laws;
(2) Those seeking elective public office in the Philippines shall
meet the qualifications for holding such public office as
required by the Constitution and existing laws and, at the time
of the filing of the certificate of candidacy, make a personal
and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and
swear to an oath of allegiance to the Republic of the
Philippines and its duly constituted authorities prior to their
assumption of office: Provided, That they renounce their oath
of allegiance to the country where they took that oath;
(4) Those intending to practice their profession in the
Philippines shall apply with the proper authority for a license or
permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public
office in the Philippines cannot be exercised by, or extended
to, those who:
(a) are candidates for or are occupying any public office in the
country of which they are naturalized citizens; and/or
(b) are in the active service as commissioned or
noncommissioned officers in the armed forces of the country
which they are naturalized citizens.
SEC. 6. Separability Clause. - If any section or provision of this Act is
held unconstitutional or invalid, any other section or provision not
affected thereby shall remain valid and effective.
SEC. 7. Repealing Clause. - All laws, decrees, orders, rules and
regulations inconsistent with the provisions of this Act are hereby
repealed or modified accordingly.

SEC. 8. Effectivity Clause. - This Act shall take effect after fifteen (15)
days following its publication in the Official Gazette or two (2)
newspapers of general circulation.
In this petition for prohibition, the following issues have been raised: (1)
Is Rep. Act No. 9225 unconstitutional? (2) Does this Court have
jurisdiction to pass upon the issue of dual allegiance?
We shall discuss these issues jointly.
Petitioner contends that Rep. Act No. 9225 cheapens Philippine
citizenship. He avers that Sections 2 and 3 of Rep. Act No. 9225,
together, allow dual allegiance and not dual citizenship. Petitioner
maintains that Section 2 allows all Filipinos, either natural-born or
naturalized, who become foreign citizens, to retain their Philippine
citizenship without losing their foreign citizenship. Section 3 permits dual
allegiance because said law allows natural-born citizens of the
Philippines to regain their Philippine citizenship by simply taking an oath
of allegiance without forfeiting their foreign allegiance. 2 The Constitution,
however, is categorical that dual allegiance is inimical to the national
interest.
The Office of the Solicitor General (OSG) claims that Section 2 merely
declares as a state policy that "Philippine citizens who become citizens
of another country shall be deemed not to have lost their Philippine
citizenship." The OSG further claims that the oath in Section 3 does not
allow dual allegiance since the oath taken by the former Filipino citizen
is an effective renunciation and repudiation of his foreign citizenship.
The fact that the applicant taking the oath recognizes and accepts the
supreme authority of the Philippines is an unmistakable and categorical
affirmation of his undivided loyalty to the Republic.3
In resolving the aforecited issues in this case, resort to the deliberations
of Congress is necessary to determine the intent of the legislative
branch in drafting the assailed law. During the deliberations, the issue of
whether Rep. Act No. 9225 would allow dual allegiance had in fact been
the subject of debate. The record of the legislative deliberations reveals
the following:
xxxx
Pursuing his point, Rep. Dilangalen noted that under the measure, two
situations exist - - the retention of foreign citizenship, and the

reacquisition of Philippine citizenship. In this case, he observed that

there are two citizenships and therefore, two allegiances. He pointed out
that under the Constitution, dual allegiance is inimical to public interest.
He thereafter asked whether with the creation of dual allegiance by
reason of retention of foreign citizenship and the reacquisition of
Philippine citizenship, there will now be a violation of the Constitution
Rep. Locsin underscored that the measure does not seek to address the
constitutional injunction on dual allegiance as inimical to public interest.
He said that the proposed law aims to facilitate the reacquisition of
Philippine citizenship by speedy means. However, he said that in one
sense, it addresses the problem of dual citizenship by requiring the
taking of an oath. He explained that the problem of dual citizenship is
transferred from the Philippines to the foreign country because the latest
oath that will be taken by the former Filipino is one of allegiance to the
Philippines and not to the United States, as the case may be. He added
that this is a matter which the Philippine government will have no
concern and competence over.
Rep. Dilangalen asked why this will no longer be the country's concern,
when dual allegiance is involved.
Rep. Locsin clarified that this was precisely his objection to the original
version of the bill, which did not require an oath of allegiance. Since the
measure now requires this oath, the problem of dual allegiance is
transferred from the Philippines to the foreign country concerned, he
explained.
xxxx
Rep. Dilangalen asked whether in the particular case, the person did not
denounce his foreign citizenship and therefore still owes allegiance to
the foreign government, and at the same time, owes his allegiance to
the Philippine government, such that there is now a case of dual
citizenship and dual allegiance.
Rep. Locsin clarified that by swearing to the supreme authority of the
Republic, the person implicitly renounces his foreign citizenship.
However, he said that this is not a matter that he wishes to address in
Congress because he is not a member of a foreign parliament but a
Member of the House.
xxxx

Rep. Locsin replied that it is imperative that those who have dual
allegiance contrary to national interest should be dealt with by law.
However, he said that the dual allegiance problem is not addressed in
the bill. He then cited the Declaration of Policy in the bill which states
that "It is hereby declared the policy of the State that all citizens who
become citizens of another country shall be deemed not to have lost
their Philippine citizenship under the conditions of this Act." He stressed
that what the bill does is recognize Philippine citizenship but says
nothing about the other citizenship.
Rep. Locsin further pointed out that the problem of dual allegiance is
created wherein a natural-born citizen of the Philippines takes an oath of
allegiance to another country and in that oath says that he abjures and
absolutely renounces all allegiance to his country of origin and swears
allegiance to that foreign country. The original Bill had left it at this stage,
he explained. In the present measure, he clarified, a person is required
to take an oath and the last he utters is one of allegiance to the country.
He then said that the problem of dual allegiance is no longer the
problem of the Philippines but of the other foreign country. 4 (Emphasis
supplied.)
From the above excerpts of the legislative record, it is clear that the
intent of the legislature in drafting Rep. Act No. 9225 is to do away with
the provision in Commonwealth Act No. 635 which takes away Philippine
citizenship from natural-born Filipinos who become naturalized citizens
of other countries. What Rep. Act No. 9225 does is allow dual citizenship
to natural-born Filipino citizens who have lost Philippine citizenship by
reason of their naturalization as citizens of a foreign country. On its face,
it does not recognize dual allegiance. By swearing to the supreme
authority of the Republic, the person implicitly renounces his foreign
citizenship. Plainly, from Section 3, Rep. Act No. 9225 stayed clear out
of the problem of dual allegiance and shifted the burden of confronting
the issue of whether or not there is dual allegiance to the concerned
foreign country. What happens to the other citizenship was not made a
concern of Rep. Act No. 9225.
Petitioner likewise advances the proposition that although Congress has
not yet passed any law on the matter of dual allegiance, such absence
of a law should not be justification why this Court could not rule on the
issue. He further contends that while it is true that there is no enabling
law yet on dual allegiance, the Supreme Court, through Mercado v.
Manzano,6 already had drawn up the guidelines on how to distinguish
dual allegiance from dual citizenship.7

For its part, the OSG counters that pursuant to Section 5, Article IV of
the 1987 Constitution, dual allegiance shall be dealt with by law. Thus,
until a law on dual allegiance is enacted by Congress, the Supreme
Court is without any jurisdiction to entertain issues regarding dual
allegiance.8
To begin with, Section 5, Article IV of the Constitution is a declaration of
a policy and it is not a self-executing provision. The legislature still has
to enact the law on dual allegiance. In Sections 2 and 3 of Rep. Act No.
9225, the framers were not concerned with dual citizenship per se, but
with the status of naturalized citizens who maintain their allegiance to
their countries of origin even after their naturalization. 9 Congress was
given a mandate to draft a law that would set specific parameters of
what really constitutes dual allegiance.10 Until this is done, it would be
premature for the judicial department, including this Court, to rule on
issues pertaining to dual allegiance.

COMMISSION ON ELECTIONS, LUIS M. BAUTISTA, ROBELITO V.

PICAR and WILMA P. PAGADUAN,Respondents.
SERENO,*
PERLAS-BERNABE, JJ *
DECISION
REYES, J.:
Failure to renounce foreign citizenship in accordance with the exact
tenor of Section 5(2) of Republic Act (R.A.) No. 9225 renders a dual
citizen ineligible to run for and thus hold any elective public office.
The Case

Neither can we subscribe to the proposition of petitioner that a law is not

needed since the case of Mercado had already set the guidelines for
determining dual allegiance. Petitioner misreads Mercado. That case did
not set the parameters of what constitutes dual allegiance but merely
made a distinction between dual allegiance and dual citizenship.
Moreover, in Estrada v. Sandiganbayan,11 we said that the courts must
assume that the legislature is ever conscious of the borders and edges
of its plenary powers, and passed laws with full knowledge of the facts
and for the purpose of promoting what is right and advancing the welfare
of the majority. Hence, in determining whether the acts of the legislature
are in tune with the fundamental law, we must proceed with judicial
restraint and act with caution and forbearance.12 The doctrine of
separation of powers demands no less. We cannot arrogate the duty of
setting the parameters of what constitutes dual allegiance when the
Constitution itself has clearly delegated the duty of determining what
acts constitute dual allegiance for study and legislation by Congress.
WHEREFORE, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.
G.R. No. 198742

August 10, 2012

TEODORA SOBEJANA-CONDON, Petitioner,

vs.

At bar is a special civil action for certiorari1 under Rule 64 of the Rules of
Court seeking to nullify Resolution2dated September 6, 2011 of the
Commission on Elections (COMELEC) en banc in EAC (AE) No. A-442010. The assailed resolution (a) reversed the Order3 dated November
30, 2010 of COMELEC Second Division dismissing petitioners appeal;
and (b) affirmed the consolidated Decision4 dated October 22, 2010 of
the Regional Trial Court (RTC), Bauang, La Union, Branch 33, declaring
petitioner Teodora Sobejana-Condon (petitioner) disqualified and
ineligible to her position as Vice-Mayor of Caba, La Union.
The Undisputed Facts
The petitioner is a natural-born Filipino citizen having been born of
Filipino parents on August 8, 1944. On December 13, 1984, she became
a naturalized Australian citizen owing to her marriage to a certain Kevin
Thomas Condon.
On December 2, 2005, she filed an application to re-acquire Philippine
citizenship before the Philippine Embassy in Canberra, Australia
pursuant to Section 3 of R.A. No. 9225 otherwise known as the
"Citizenship Retention and Re-Acquisition Act of 2003." 5 The application
was approved and the petitioner took her oath of allegiance to the
Republic of the Philippines on December 5, 2005.
On September 18, 2006, the petitioner filed an unsworn Declaration of
Renunciation of Australian Citizenship before the Department of

Immigration and Indigenous Affairs, Canberra, Australia, which in turn

issued the Order dated September 27, 2006 certifying that she has
ceased to be an Australian citizen.6

1) DECLARING [petitioner] TEODORA SOBEJANA-CONDON,

disqualified and ineligible to hold the office of Vice-Mayor of Caba, La
Union;

The petitioner ran for Mayor in her hometown of Caba, La Union in the
2007 elections. She lost in her bid. She again sought elective office
during the May 10, 2010 elections this time for the position of ViceMayor. She obtained the highest numbers of votes and was proclaimed
as the winning candidate. She took her oath of office on May 13, 2010.

2) NULLIFYING her proclamation as the winning candidate for ViceMayor of said municipality; and

Soon thereafter, private respondents Robelito V. Picar, Wilma P.

Pagaduan7 and Luis M. Bautista,8 (private respondents) all registered
voters of Caba, La Union, filed separate petitions for quo warranto
questioning the petitioners eligibility before the RTC. The petitions
similarly sought the petitioners disqualification from holding her elective
post on the ground that she is a dual citizen and that she failed to
execute a "personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an oath" as
imposed by Section 5(2) of R.A. No. 9225.
The petitioner denied being a dual citizen and averred that since
September 27, 2006, she ceased to be an Australian citizen. She
claimed that the Declaration of Renunciation of Australian Citizenship
she executed in Australia sufficiently complied with Section 5(2), R.A.
No. 9225 and that her act of running for public office is a clear
abandonment of her Australian citizenship.
Ruling of the RTC

3) DECLARING the position of Vice-Mayor in said municipality vacant.

SO ORDERED.9
Ruling of the COMELEC
The petitioner appealed to the COMELEC but the appeal was dismissed
by the Second Division in its Order10dated November 30, 2010 for failure
to pay the docket fees within the prescribed period. On motion for
reconsideration, the appeal was reinstated by the COMELEC en banc in
its Resolution11 dated September 6, 2011. In the same issuance, the
substantive merits of the appeal were given due course. The COMELEC
en banc concurred with the findings and conclusions of the RTC; it also
granted the Motion for Execution Pending Appeal filed by the private
respondents.
The decretal portion of the resolution reads:
WHEREFORE, premises considered the Commission RESOLVED as it
hereby RESOLVES as follows:

In its consolidated Decision dated October 22, 2010, the trial court held
that the petitioners failure to comply with Section 5(2) of R.A. No. 9225
rendered her ineligible to run and hold public office. As admitted by the
petitioner herself during trial, the personal declaration of renunciation
she filed in Australia was not under oath. The law clearly mandates that
the document containing the renunciation of foreign citizenship must be
sworn before any public officer authorized to administer oath.
Consequently, the RTCs decision disposed as follows:

1. To DISMISS the instant appeal for lack of merit;

WHEREFORE, premises considered, the Court renders judgment in

FAVOR of [private respondents] and AGAINST (petitioner):

Hence, the present petition ascribing grave abuse of discretion to the

COMELEC en banc.

2. To AFFIRM the DECISION dated 22 October 2010 of the court a quo;

and

The petitioner contends that since she ceased to be an Australian citizen

on September 27, 2006, she no longer held dual citizenship and was
only a Filipino citizen when she filed her certificate of candidacy as early
as the 2007 elections. Hence, the "personal and sworn renunciation of
foreign citizenship" imposed by Section 5(2) of R.A. No. 9225 to dual
citizens seeking elective office does not apply to her.
She further argues that a sworn renunciation is a mere formal and not a
mandatory requirement. In support thereof, she cites portions of the
Journal of the House of Representatives dated June 2 to 5, 2003
containing the sponsorship speech for House Bill (H.B.) No. 4720, the
precursor of R.A. No. 9225.
She claims that the private respondents are estopped from questioning
her eligibility since they failed to do so when she filed certificates of
candidacy for the 2007 and 2010 elections.
Lastly, she disputes the power of the COMELEC en banc to: (a) take
cognizance of the substantive merits of her appeal instead of remanding
the same to the COMELEC Second Division for the continuation of the
appeal proceedings; and (b) allow the execution pending appeal of the
RTCs judgment.
The Issues
Posed for resolution are the following issues: I) Whether the COMELEC
en banc may resolve the merits of an appeal after ruling on its
reinstatement; II) Whether the COMELEC en banc may order the
execution of a judgment rendered by a trial court in an election case; III)
Whether the private respondents are barred from questioning the
qualifications of the petitioner; and IV) For purposes of determining the
petitioners eligibility to run for public office, whether the "sworn
renunciation of foreign citizenship" in Section 5(2) of R.A. No. 9225 is a
mere pro-forma requirement.

3. To GRANT the Motion for Execution filed on November 12, 2010.

The Courts Ruling
SO ORDERED.12 (Emphasis supplied)

The Petitioners Arguments

I. An appeal may be simultaneously

reinstated and definitively resolved
by the COMELEC en banc in a
resolution disposing of a motion for
reconsideration.

The power to decide motions for reconsideration in election cases is

arrogated unto the COMELEC en banc by Section 3, Article IX-C of the
Constitution, viz:
Sec. 3. The Commission on Elections may sit en banc or in two
divisions, and shall promulgate its rules of procedure in order to expedite
disposition of election cases, including pre-proclamation controversies.
All such election cases shall be heard and decided in division, provided
that motions for reconsideration of decisions shall be decided by the
Commission en banc.
A complementary provision is present in Section 5(c), Rule 3 of the
COMELEC Rules of Procedure, to wit:
Any motion to reconsider a decision, resolution, order or ruling of a
Division shall be resolved by the Commission en banc except motions
on interlocutory orders of the division which shall be resolved by the
division which issued the order.
Considering that the above cited provisos do not set any limits to the
COMELEC en bancs prerogative in resolving a motion for
reconsideration, there is nothing to prevent the body from directly
adjudicating the substantive merits of an appeal after ruling for its
reinstatement instead of remanding the same to the division that initially
dismissed it.
We thus see no impropriety much more grave abuse of discretion on the
part of the COMELEC en banc when it proceeded to decide the
substantive merits of the petitioners appeal after ruling for its
reinstatement.
Further, records show that, in her motion for reconsideration before the
COMELEC en banc, the petitioner not only proffered arguments on the
issue on docket fees but also on the issue of her eligibility. She even
filed a supplemental motion for reconsideration attaching therewith
supporting documents13 to her contention that she is no longer an
Australian citizen. The petitioner, after obtaining an unfavorable
decision, cannot be permitted to disavow the en bancs exercise of
discretion on the substantial merits of her appeal when she herself
invoked the same in the first place.
The fact that the COMELEC en banc had remanded similar appeals to
the Division that initially dismissed them cannot serve as a precedent to

the disposition of the petitioners appeal. A decision or resolution of any

adjudicating body can be disposed in several ways. To sustain
petitioners argument would be virtually putting a straightjacket on the
COMELEC en bancs adjudicatory powers.

registered candidate to run for the office for which his certificate of
candidacy was filed can be raised, to wit:

More significantly, the remand of the appeal to the COMELEC Second

Division would be unnecessarily circuitous and repugnant to the rule on
preferential disposition of quo warranto cases espoused in Rule 36,
Section 15 of the COMELEC Rules of Procedure.14

Sec. 78. Petition to deny due course or to cancel a certificate of

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

II. The COMELEC en banc has the

power to order discretionary
execution of judgment.
We cannot subscribe to petitioners submission that the COMELEC en
banc has no power to order the issuance of a writ of execution and that
such function belongs only to the court of origin.
There is no reason to dispute the COMELECs authority to order
discretionary execution of judgment in view of the fact that the
suppletory application of the Rules of Court is expressly sanctioned by
Section 1, Rule 41 of the COMELEC Rules of Procedure. 15
Under Section 2, Rule 39 of the Rules of Court, execution pending
appeal may be issued by an appellate court after the trial court has lost
jurisdiction. In Batul v. Bayron,16 we stressed the import of the provision
vis--vis election cases when we held that judgments in election cases
which may be executed pending appeal includes those decided by trial
courts and those rendered by the COMELEC whether in the exercise of
its original or appellate jurisdiction.
III. Private respondents are not
estopped from questioning
petitioners eligibility to hold public
office.
The fact that the petitioners qualifications were not questioned when
she filed certificates of candidacy for 2007 and 2010 elections cannot
operate as an estoppel to the petition for quo warranto before the RTC.
Under the Batas Pambansa Bilang 881 (Omnibus Election Code), there
are two instances where a petition questioning the qualifications of a

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

(2) After election, pursuant to Section 253 thereof, viz:

Sec. 253. Petition for quo warranto. Any voter contesting the election
of any Member of the Batasang Pambansa, regional, provincial, or city
officer on the ground of ineligibility or of disloyalty to the Republic of the
Philippines shall file a sworn petition for quo warranto with the
Commission within ten days after the proclamation of the results of the
election. (Emphasis ours)
Hence, if a person qualified to file a petition to disqualify a certain
candidate fails to file the petition within the twenty-five (25)-day period
prescribed by Section 78 of the Omnibus Election Code for whatever
reasons, the elections laws do not leave him completely helpless as he
has another chance to raise the disqualification of the candidate by filing
a petition for quo warranto within ten (10) days from the proclamation of
the results of the election, as provided under Section 253 of the
Omnibus Election Code.17
The above remedies were both available to the private respondents and
their failure to utilize Section 78 of the Omnibus Election Code cannot
serve to bar them should they opt to file, as they did so file, a quo
warranto petition under Section 253.
IV. Petitioner is disqualified from
running for elective office for
failure to renounce her Australian
citizenship in accordance with
Section 5(2) of R.A. No. 9225.

R.A. No. 9225 allows the retention and re-acquisition of Filipino

citizenship for natural-born citizens who have lost their Philippine
citizenship18 by taking an oath of allegiance to the Republic, thus:
Section 3. Retention of Philippine Citizenship. Any provision of law to
the contrary notwithstanding, natural-born citizens of the Philippines who
have lost their Philippine citizenship by reason of their naturalization as
citizens of a foreign country are hereby deemed to have re-acquired
Philippine citizenship upon taking the following oath of allegiance to the
Republic:
"I, _____________________, solemnly swear (or affirm) that I
will support and defend the Constitution of the Republic of the
Philippines and obey the laws and legal orders promulgated
by the duly constituted authorities of the Philippines; and I
hereby declare that I recognize and accept the supreme
authority of the Philippines and will maintain true faith and
allegiance thereto; and that I imposed this obligation upon
myself voluntarily without mental reservation or purpose of
evasion."

and existing laws and, at the time of the filing of the certificate of
candidacy, make a personal and sworn renunciation of any and all
foreign citizenship before any public officer authorized to administer an
oath;
(3) Those appointed to any public office shall subscribe and swear to an
oath of allegiance to the Republic of the Philippines and its duly
constituted authorities prior to their assumption of office: Provided, That
they renounce their oath of allegiance to the country where they took
that oath;
(4) Those intending to practice their profession in the Philippines shall
apply with the proper authority for a license or permit to engage in such
practice; and
(5) That right to vote or be elected or appointed to any public office in the
Philippines cannot be exercised by, or extended to, those who:
(a) are candidates for or are occupying any public office in the country of
which they are naturalized citizens; and/or

Natural-born citizens of the Philippines who, after the effectivity of this

Act, become citizens of a foreign country shall retain their Philippine
citizenship upon taking the aforesaid oath.

(b) are in active service as commissioned or non-commissioned officers

in the armed forces of the country which they are naturalized citizens.
(Emphasis ours)

The oath is an abbreviated repatriation process that restores ones

Filipino citizenship and all civil and political rights and obligations
concomitant therewith, subject to certain conditions imposed in Section
5, viz:

Under the provisions of the aforementioned law, the petitioner has

validly re-acquired her Filipino citizenship when she took an Oath of
Allegiance to the Republic of the Philippines on December 5, 2005. At
that point, she held dual citizenship, i.e., Australian and Philippine.

Sec. 5. Civil and Political Rights and Liabilities. Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following
conditions:

On September 18, 2006, or a year before she initially sought elective

public office, she filed a renunciation of Australian citizenship in
Canberra, Australia. Admittedly, however, the same was not under oath
contrary to the exact mandate of Section 5(2) that the renunciation of
foreign citizenship must be sworn before an officer authorized to
administer oath.

(1) Those intending to exercise their right of suffrage must meet the
requirements under Section 1, Article V of the Constitution, Republic Act
No. 9189, otherwise known as "The Overseas Absentee Voting Act of
2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the
qualification for holding such public office as required by the Constitution

To obviate the fatal consequence of her inutile renunciation, the

petitioner pleads the Court to interpret the "sworn renunciation of any
and all foreign citizenship" in Section 5(2) to be a mere pro forma
requirement in conformity with the intent of the Legislature. She anchors
her submission on the statement made by Representative Javier during
the floor deliberations on H.B. No. 4720, the precursor of R.A. No. 9225.

At the outset, it bears stressing that the Courts duty to interpret the law
according to its true intent is exercised only when the law is ambiguous
or of doubtful meaning. The first and fundamental duty of the Court is to
apply the law. As such, when the law is clear and free from any doubt,
there is no occasion for construction or interpretation; there is only room
for application.19 Section 5(2) of R.A. No. 9225 is one such instance.
Ambiguity is a condition of admitting two or more meanings, of being
understood in more than one way, or of referring to two or more things at
the same time. For a statute to be considered ambiguous, it must admit
of two or more possible meanings.20
The language of Section 5(2) is free from any ambiguity. In Lopez v.
COMELEC,21 we declared its categorical and single meaning: a Filipino
American or any dual citizen cannot run for any elective public position
in the Philippines unless he or she personally swears to a renunciation
of all foreign citizenship at the time of filing the certificate of candidacy.
We also expounded on the form of the renunciation and held that to be
valid, the renunciation must be contained in an affidavit duly executed
before an officer of the law who is authorized to administer an oath
stating in clear and unequivocal terms that affiant is renouncing all
foreign citizenship.
The same meaning was emphasized in Jacot v. Dal,22 when we held that
Filipinos re-acquiring or retaining their Philippine citizenship under R.A.
No. 9225 must explicitly renounce their foreign citizenship if they wish to
run for elective posts in the Philippines, thus:
The law categorically requires persons seeking elective public office,
who either retained their Philippine citizenship or those who reacquired
it, to make a personal and sworn renunciation of any and all foreign
citizenship before a public officer authorized to administer an oath
simultaneous with or before the filing of the certificate of candidacy.
Hence, Section 5(2) of Republic Act No. 9225 compels natural-born
Filipinos, who have been naturalized as citizens of a foreign country, but
who reacquired or retained their Philippine citizenship (1) to take the
oath of allegiance under Section 3 of Republic Act No. 9225, and (2) for
those seeking elective public offices in the Philippines, to additionally
execute a personal and sworn renunciation of any and all foreign
citizenship before an authorized public officer prior or simultaneous to
the filing of their certificates of candidacy, to qualify as candidates in
Philippine elections.

Clearly Section 5(2) of Republic Act No. 9225 (on the making of a
personal and sworn renunciation of any and all foreign citizenship)
requires of the Filipinos availing themselves of the benefits under the
said Act to accomplish an undertaking other than that which they have
presumably complied with under Section 3 thereof (oath of allegiance to
the Republic of the Philippines). This is made clear in the discussion of
the Bicameral Conference Committee on Disagreeing Provisions of
House Bill No. 4720 and Senate Bill No. 2130 held on 18 August 2003
(precursors of Republic Act No. 9225), where the Hon. Chairman
Franklin Drilon and Hon. Representative Arthur Defensor explained to
Hon. Representative Exequiel Javier that the oath of allegiance is
different from the renunciation of foreign citizenship;
xxxx
The intent of the legislators was not only for Filipinos reacquiring or
retaining their Philippine citizenship under Republic Act No. 9225 to take
their oath of allegiance to the Republic of the Philippines, but also to
explicitly renounce their foreign citizenship if they wish to run for elective
posts in the Philippines. To qualify as a candidate in Philippine elections,
Filipinos must only have one citizenship, namely, Philippine
citizenship.23 (Citation omitted and italics and underlining ours)
Hence, in De Guzman v. COMELEC,24 we declared petitioner therein to
be disqualified from running for the position of vice-mayor for his failure
to make a personal and sworn renunciation of his American citizenship.
We find no reason to depart from the mandatory nature infused by the
above rulings to the phrase "sworn renunciation". The language of the
provision is plain and unambiguous. It expresses a single, definite, and
sensible meaning and must thus be read literally.25 The foreign
citizenship must be formally rejected through an affidavit duly sworn
before an officer authorized to administer oath.
It is conclusively presumed to be the meaning that the Legislature has
intended to convey.26 Even a resort to the Journal of the House of
Representatives invoked by the petitioner leads to the same inference,
viz:
INTERPELLATION OF REP. JAVIER
Rep. Javier initially inquired whether under the Bill, dual citizenship is
only limited to natural-born Filipinos and not to naturalized Filipinos.

Rep. Libanan replied in the affirmative.

Rep. Javier subsequently adverted to Section 5 of the Bill which
provides that natural-born Filipinos who have dual citizenship shall
continue to enjoy full civil and political rights. This being the case, he
sought clarification as to whether they can indeed run for public office
provided that they renounce their foreign citizenship.
Rep. Libanan replied in the affirmative, citing that these citizens will only
have to make a personal and sworn renunciation of foreign citizenship
before any authorized public officer.
Rep. Javier sought further clarification on this matter, citing that while the
Bill provides them with full civil and political rights as Filipino citizens, the
measure also discriminates against them since they are required to
make a sworn renunciation of their other foreign citizenship if and when
they run for public office. He thereafter proposed to delete this particular
provision.
In his rejoinder, Rep. Libanan explained that this serves to erase all
doubts regarding any issues that might be raised pertaining to the
citizenship of any candidate. He subsequently cited the case of
Afroyim vs. Rusk, wherein the United States considered a
naturalized American still as an American citizen even when he
cast his vote in Israel during one of its elections.
Rep. Javier however pointed out that the matter of voting is different
because in voting, one is not required to renounce his foreign
citizenship. He pointed out that under the Bill, Filipinos who run for
public office must renounce their foreign citizenship. He pointed out
further that this is a contradiction in the Bill.
Thereafter, Rep. Javier inquired whether Filipino citizens who had
acquired foreign citizenship and are now entitled to reacquire their
Filipino citizenship will be considered as natural-born citizens. As such,
he likewise inquired whether they will also be considered qualified to run
for the highest elective positions in the country.
Rep. Libanan replied in the affirmative, citing that the only requirement is
that they make a sworn renunciation of their foreign citizenship and that
they comply with the residency and registration requirements as
provided for in the Constitution.

Whereupon, Rep. Javier noted that under the Constitution, natural-born

citizens are those who are citizens at the time of birth without having to
perform an act to complete or perfect his/her citizenship.
Rep. Libanan agreed therewith, citing that this is the reason why the Bill
seeks the repeal of CA No. 63. The repeal, he said, would help Filipino
citizens who acquired foreign citizenship to retain their citizenship. With
regard then to Section 5 of the Bill, he explained that the Committee had
decided to include this provision because Section 18, Article XI of the
Constitution provides for the accountability of public officers.
In his rejoinder, Rep. Javier maintained that in this case, the sworn
renunciation of a foreign citizenship will only become a pro forma
requirement.
On further queries of Rep. Javier, Rep. Libanan affirmed that naturalborn Filipino citizens who became foreign citizens and who have
reacquired their Filipino citizenship under the Bill will be considered as
natural-born citizens, and therefore qualified to run for the presidency,
the vice-presidency or for a seat in Congress. He also agreed with the
observation of Rep. Javier that a natural-born citizen is one who is a
citizen of the country at the time of birth. He also explained that the Bill
will, in effect, return to a Filipino citizen who has acquired foreign
citizenship, the status of being a natural-born citizen effective at the time
he lost his Filipino citizenship.
As a rejoinder, Rep. Javier opined that doing so would be discriminating
against naturalized Filipino citizens and Filipino citizens by election who
are all disqualified to run for certain public offices. He then suggested
that the Bill be amended by not considering as natural-born citizens
those Filipinos who had renounced their Filipino citizenship and acquired
foreign citizenship. He said that they should be considered as
repatriated citizens.
In reply, Rep. Libanan assured Rep. Javier that the Committee will take
note of the latters comments on the matter. He however stressed that
after a lengthy deliberation on the subject, the Committees on Justice,
and Foreign Affairs had decided to revert back to the status of being
natural-born citizens those natural-born Filipino citizens who had
acquired foreign citizenship but now wished to reacquire their Filipino
citizenship.
Rep. Javier then explained that a Filipina who loses her Filipino
citizenship by virtue of her marriage to a foreigner can regain her

repatriated Filipino citizenship, upon the death of her husband, by simply

taking her oath before the Department of Justice (DOJ).
Rep. Javier said that he does not oppose the Bill but only wants to be
fair to other Filipino citizens who are not considered natural-born. He
reiterated that natural-born Filipino citizens who had renounced their
citizenship by pledging allegiance to another sovereignty should not be
allowed to revert back to their status of being natural-born citizens once
they decide to regain their Filipino citizenship. He underscored that this
will in a way allow such Filipinos to enjoy dual citizenship.
On whether the Sponsors will agree to an amendment incorporating the
position of Rep. Javier, Rep. Libanan stated that this will defeat the
purpose of the Bill.
Rep. Javier disagreed therewith, adding that natural-born Filipino
citizens who acquired foreign citizenships and later decided to regain
their Filipino citizenship, will be considered as repatriated citizens.

context of the issue then being discussed, that is whether former

natural-born citizens who re-acquire their Filipino citizenship under the
proposed law will revert to their original status as natural-born citizens
and thus be qualified to run for government positions reserved only to
natural-born Filipinos, i.e. President, Vice-President and Members of the
Congress.
It was Representative Javiers position that they should be considered
as repatriated Filipinos and not as natural-born citizens since they will
have to execute a personal and sworn renunciation of foreign
citizenship. Natural-born citizens are those who need not perform an act
to perfect their citizenship. Representative Libanan, however,
maintained that they will revert to their original status as natural-born
citizens. To reconcile the renunciation imposed by Section 5(2) with the
principle that natural-born citizens are those who need not perform any
act to perfect their citizenship, Representative Javier suggested that the
sworn renunciation of foreign citizenship be considered as a mere pro
forma requirement.

In reaction, Rep. Javier clarified that only citizens by election or those

whose mothers are Filipino citizens under the 1935 Constitution and
who elected Filipino citizenship upon reaching the age of maturity, are
not deemed as natural-born citizens.

Petitioners argument, therefore, loses its point. The "sworn renunciation

of foreign citizenship" must be deemed a formal requirement only with
respect to the re-acquisition of ones status as a natural-born Filipino so
as to override the effect of the principle that natural-born citizens need
not perform any act to perfect their citizenship. Never was it mentioned
or even alluded to that, as the petitioner wants this Court to believe,
those who re-acquire their Filipino citizenship and thereafter run for
public office has the option of executing an unsworn affidavit of
renunciation.

In response, Rep. Libanan maintained that in the Bengzon case,

repatriation results in the recovery of ones original nationality and only
naturalized citizens are not considered as natural-born citizens.

It is also palpable in the above records that Section 5 was intended to

complement Section 18, Article XI of the Constitution on public officers
primary accountability of allegiance and loyalty, which provides:

On whether the Sponsors would agree to not giving back the status of
being natural-born citizens to natural-born Filipino citizens who acquired
foreign citizenship, Rep. Libanan remarked that the Body in plenary
session will decide on the matter.27

Sec. 18. Public officers and employees owe the State and this
Constitution allegiance at all times and any public officer or employee
who seeks to change his citizenship or acquire the status of an
immigrant of another country during his tenure shall be dealt with by law.

The petitioner obviously espouses an isolated reading of Representative

Javiers statement; she conveniently disregards the preceding and
succeeding discussions in the records.

An oath is a solemn declaration, accompanied by a swearing to God or

a revered person or thing, that ones statement is true or that one will be
bound to a promise. The person making the oath implicitly invites
punishment if the statement is untrue or the promise is broken. The legal
effect of an oath is to subject the person to penalties for perjury if the
testimony is false.28

Rep. Libanan cited the case of Bengzon vs. HRET wherein the Supreme
Court had ruled that only naturalized Filipino citizens are not considered
as natural-born citizens.

The above-quoted excerpts of the legislative record show that

Representative Javiers statement ought to be understood within the

Indeed, the solemn promise, and the risk of punishment attached to an

oath ensures truthfulness to the prospective public officers
abandonment of his adopted state and promise of absolute allegiance
and loyalty to the Republic of the Philippines.
To hold the oath to be a mere pro forma requirement is to say that it is
only for ceremonial purposes; it would also accommodate a mere
qualified or temporary allegiance from government officers when the
Constitution and the legislature clearly demand otherwise.
Petitioner contends that the Australian Citizenship Act of 1948, under
which she is already deemed to have lost her citizenship, is entitled to
judicial notice. We disagree.
Foreign laws are not a matter of judicial notice. Like any other fact, they
must be alleged and proven.29 To prove a foreign law, the party invoking
it must present a copy thereof and comply with Sections 24 and 25 of
Rule 132 of the Revised Rules of Court which reads:
Sec. 24. Proof of official record. The record of public documents
referred to in paragraph (a) of Section 19, when admissible for any
purpose, may be evidenced by an official publication thereof or by a
copy attested by the officer having the legal custody of the record, or by
his deputy, and accompanied, if the record is not kept in the Philippines,
with a certificate that such officer has the custody. If the office in which
the record is kept is in a foreign country, the certificate may be made by
a secretary of the embassy or legation, consul general, consul, viceconsul, or consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the record is kept,
and authenticated by the seal of his office. (Emphasis ours)
Sec. 25. What attestation of copy must state. Whenever a copy of a
document or record is attested for the purpose of the evidence, the
attestation must state, in substance, that the copy is a correct copy of
the original, or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting officer, if there
be any, or if he be the clerk of a court having a seal, under the seal of
such court.
The Court has admitted certain exceptions to the above rules and held
that the existence of a foreign law may also be established through: (1)
a testimony under oath of an expert witness such as an attorney-at-law
in the country where the foreign law operates wherein he quotes
verbatim a section of the law and states that the same was in force at

the time material to the facts at hand; and (2) likewise, in several
naturalization cases, it was held by the Court that evidence of the law of
a foreign country on reciprocity regarding the acquisition of citizenship,
although not meeting the prescribed rule of practice, may be allowed
and used as basis for favorable action, if, in the light of all the
circumstances, the Court is "satisfied of the authenticity of the written
proof offered." Thus, in a number of decisions, mere authentication of
the Chinese Naturalization Law by the Chinese Consulate General of
Manila was held to be a competent proof of that law. 30
The petitioner failed to prove the Australian Citizenship Act of 1948
through any of the above methods. As uniformly observed by the RTC
and COMELEC, the petitioner failed to show proof of the existence of
the law during trial. Also, the letter issued by the Australian government
showing that petitioner already renounced her Australian citizenship was
unauthenticated hence, the courts a quo acted judiciously in
disregarding the same.
We are bound to arrive at a similar conclusion even if we were to admit
as competent evidence the said letter in view of the photocopy of a
Certificate of Authentication issued by Consular Section of the Philippine
Embassy in Canberra, Australia attached to the petitioners motion for
reconsideration.
We have stressed in Advocates and Adherents of Social Justice for
School Teachers and Allied Workers (AASJS) Member v.
Datumanong31 that the framers of R.A. No. 9225 did not intend the law
to concern itself with the actual status of the other citizenship.
This Court as the government branch tasked to apply the enactments of
the legislature must do so conformably with the wisdom of the latter
sans the interference of any foreign law. If we were to read the
Australian Citizen Act of 1948 into the application and operation of R.A.
No. 9225, we would be applying not what our legislative department has
deemed wise to require. To do so would be a brazen encroachment
upon the sovereign will and power of the people of this Republic. 32
The petitioners act of running for public office does not suffice to serve
as an effective renunciation of her Australian citizenship. While this
Court has previously declared that the filing by a person with dual
citizenship of a certificate of candidacy is already considered a
renunciation of foreign citizenship,33 such ruling was already adjudged
superseded by the enactment of R.A. No. 9225 on August 29, 2003

which provides for the additional condition of a personal and sworn

renunciation of foreign citizenship.34
The fact that petitioner won the elections can not cure the defect of her
candidacy. Garnering the most number of votes does not validate the
election of a disqualified candidate because the application of the
constitutional and statutory provisions on disqualification is not a matter
of popularity.35
In fine, R.A. No. 9225 categorically demands natural-born Filipinos who
re-acquire their citizenship and seek elective office, to execute a
personal and sworn renunciation of any and all foreign citizenships
before an authorized public officer prior to or simultaneous to the filing of
their certificates of candidacy, to qualify as candidates in Philippine
elections.36 The rule applies to all those who have re-acquired their
Filipino citizenship, like petitioner, without regard as to whether they are
still dual citizens or not. It is a pre-requisite imposed for the exercise of
the right to run for public office.
Stated differently, it is an additional qualification for elective office
specific only to Filipino citizens who re-acquire their citizenship under
Section 3 of R.A. No. 9225. It is the operative act that restores their right
to run for public office. The petitioner's failure to comply therewith in
accordance with the exact tenor of the law, rendered ineffectual the
Declaration of Renunciation of Australian Citizenship she executed on
September 18, 2006. As such, she is yet to regain her political right to
seek elective office. Unless she executes a sworn renunciation of her
Australian citizenship, she is ineligible to run for and hold any elective
office in the Philippines.
WHEREFORE, in view of all the foregoing, the petition is
hereby DISMISSED. The Resolution dated September 6, 2011 of the
Commission on Elections en bane in EAC (AE) No. A-44-2010
is AFFIRMED in toto.
SO ORDERED.
ATTY. ROMULO B. MACALINTAL, petitioner, vs. COMMISSION ON
ELECTIONS, HON. ALBERTO ROMULO, in his official
capacity as Executive Secretary, and HON. EMILIA T.
BONCODIN, Secretary of the Department of Budget and
Management, respondents.

DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari and prohibition filed by
Romulo B. Macalintal, a member of the Philippine Bar, seeking a
declaration that certain provisions of Republic Act No. 9189 (The
Overseas Absentee Voting Act of 2003)[1] suffer from constitutional
infirmity. Claiming that he has actual and material legal interest in the
subject matter of this case in seeing to it that public funds are properly
and lawfully used and appropriated, petitioner filed the instant petition as
a taxpayer and as a lawyer.
The Court upholds the right of petitioner to file the present petition.
R.A. No. 9189, entitled, An Act Providing for A System of
Overseas Absentee Voting by Qualified Citizens of the Philippines
Abroad, Appropriating Funds Therefor, and for Other
Purposes, appropriates funds under Section 29 thereof which provides
that a supplemental budget on the General Appropriations Act of the
year of its enactment into law shall provide for the necessary amount to
carry out its provisions. Taxpayers, such as herein petitioner, have the
right to restrain officials from wasting public funds through the
enforcement of an unconstitutional statute. [2] The Court has held that
they may assail the validity of a law appropriating public funds [3] because
expenditure of public funds by an officer of the State for the purpose of
executing an unconstitutional act constitutes a misapplication of such
funds.[4]
The challenged provision of law involves a public right that affects
a great number of citizens. The Court has adopted the policy of taking
jurisdiction over cases whenever the petitioner has seriously and
convincingly presented an issue of transcendental significance to the
Filipino people. This has been explicitly pronounced in Kapatiran ng
mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan, [5] where the
Court held:
Objections to taxpayers suit for lack of sufficient personality standing, or
interest are, however, in the main procedural matters. Considering the
importance to the public of the cases at bar, and in keeping with the
Courts duty, under the 1987 Constitution, to determine whether or not
the other branches of government have kept themselves within the limits
of the Constitution and the laws and that they have not abused the
discretion given to them, the Court has brushed aside technicalities of
procedure and has taken cognizance of these petitions. [6]

Indeed, in this case, the Court may set aside procedural rules as
the constitutional right of suffrage of a considerable number of Filipinos
is involved.
The question of propriety of the instant petition which may appear
to be visited by the vice of prematurity as there are no ongoing
proceedings in any tribunal, board or before a government official
exercising judicial, quasi-judicial or ministerial functions as required by
Rule 65 of the Rules of Court, dims in light of the importance of the
constitutional issues raised by the petitioner. In Taada vs. Angara,[7] the
Court held:

abroad. Thus, strong reasons of public policy demand that the Court
resolves the instant petition [10] and determine whether Congress has
acted within the limits of the Constitution or if it had gravely abused the
discretion entrusted to it.[11]
The petitioner raises three principal questions:
A. Does Section 5(d) of Rep. Act No. 9189 allowing the
registration of voters who are immigrants or permanent
residents in other countries by their mere act of executing
an affidavit expressing their intention to return to the
Philippines, violate the residency requirement in Section 1
of Article V of the Constitution?

In seeking to nullify an act of the Philippine Senate on the ground that it

contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right
but in fact the duty of the judiciary to settle the dispute. The question
thus posed is judicial rather than political. The duty (to adjudicate)
remains to assure that the supremacy of the Constitution is upheld.
Once a controversy as to the application or interpretation of
constitutional provision is raised before this Court (as in the instant
case), it becomes a legal issue which the Court is bound by
constitutional mandate to decide.

B. Does Section 18.5 of the same law empowering the

COMELEC to proclaim the winning candidates for national
offices and party list representatives including the President
and the Vice-President violate the constitutional mandate
under Section 4, Article VII of the Constitution that the
winning candidates for President and the Vice-President
shall be proclaimed as winners by Congress?
C. May Congress, through the Joint Congressional
Oversight Committee created in Section 25 of Rep. Act No.
9189, exercise the power to review, revise, amend, and
approve the Implementing Rules and Regulations that the
Commission on Elections shall promulgate without violating
the independence of the COMELEC under Section 1, Article
IX-A of the Constitution?

In another case of paramount impact to the Filipino people, it has been

expressed that it is illogical to await the adverse consequences of the
law in order to consider the controversy actual and ripe for judicial
resolution.[8] In yet another case, the Court said that:
. . . despite the inhibitions pressing upon the Court when confronted with
constitutional issues, it will not hesitate to declare a law or act invalid
when it is convinced that this must be done. In arriving at this
conclusion, its only criterion will be the Constitution and God as its
conscience gives it in the light to probe its meaning and discover its
purpose. Personal motives and political considerations are irrelevancies
that cannot influence its decisions. Blandishment is as ineffectual as
intimidation, for all the awesome power of the Congress and Executive,
the Court will not hesitate to make the hammer fall heavily, where the
acts of these departments, or of any official, betray the peoples will as
expressed in the Constitution . . .[9]
The need to consider the constitutional issues raised before the
Court is further buttressed by the fact that it is now more than fifteen
years since the ratification of the 1987 Constitution requiring Congress
to provide a system for absentee voting by qualified Filipinos

prepared for the purpose by the Commission declaring that he/she shall
resume actual physical permanent residence in the Philippines not later
than three (3) years from approval of his/her registration under this Act.
Such affidavit shall also state that he/she has not applied for citizenship
in another country. Failure to return shall be cause for the removal of the
name of the immigrant or permanent resident from the National Registry
of Absentee Voters and his/her permanent disqualification to vote in
absentia.
Petitioner posits that Section 5(d) is unconstitutional because it violates
Section 1, Article V of the 1987 Constitution which requires that the voter
must be a resident in the Philippines for at least one year and in the
place where he proposes to vote for at least six months immediately
preceding an election. Petitioner cites the ruling of the Court in Caasi vs.
Court of Appeals[12] to support his claim. In that case, the Court held that
a green card holder immigrant to the United States is deemed to have
abandoned his domicile and residence in the Philippines.
Petitioner further argues that Section 1, Article V of the
Constitution does not allow provisional registration or a promise by a
voter to perform a condition to be qualified to vote in a political exercise;
[13]
that the legislature should not be allowed to circumvent the
requirement of the Constitution on the right of suffrage by providing a
condition thereon which in effect amends or alters the aforesaid
residence requirement to qualify a Filipino abroad to vote. [14] He claims
that the right of suffrage should not be granted to anyone who, on the
date of the election, does not possess the qualifications provided for by
Section 1, Article V of the Constitution.
Respondent COMELEC refrained from commenting on this issue.
[15]

The Court will resolve the questions in seriatim.

A.
Does Section 5(d) of Rep. Act No. 9189 violate Section 1,
Article V of the 1987 Constitution of the Republic of the
Philippines?
Section 5(d) provides:
Sec. 5. Disqualifications. The following shall be disqualified from
voting under this Act:
...

...

...

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

the host country, unless he/she executes, upon registration, an affidavit

In compliance with the Resolution of the Court, the Solicitor

General filed his comment for all public respondents. He contraposes
that the constitutional challenge to Section 5(d) must fail because of the
absence of clear and unmistakable showing that said provision of law is
repugnant to the Constitution. He stresses: All laws are presumed to be
constitutional; by the doctrine of separation of powers, a department of
government owes a becoming respect for the acts of the other two
departments; all laws are presumed to have adhered to constitutional
limitations; the legislature intended to enact a valid, sensible, and just
law.
In addition, the Solicitor General points out that Section 1, Article V
of the Constitution is a verbatim reproduction of those provided for in the

1935 and the 1973 Constitutions. Thus, he cites Co vs. Electoral

Tribunal of the House of Representatives[16] wherein the Court held that
the term residence has been understood to be synonymous with
domicile under both Constitutions. He further argues that a person can
have only one domicile but he can have two residences, one
permanent (the domicile) and the other temporary; [17] and that the
definition and meaning given to the term residence likewise applies to
absentee voters. Invoking Romualdez-Marcos vs. COMELEC[18] which
reiterates the Courts ruling inFaypon vs. Quirino,[19] the Solicitor General
maintains that Filipinos who are immigrants or permanent residents
abroad may have in fact never abandoned their Philippine domicile. [20]
Taking issue with the petitioners contention that green card
holders are considered to have abandoned their Philippine domicile, the
Solicitor General suggests that the Court may have to discard its ruling
in Caasi vs. Court of Appeals[21] in so far as it relates to immigrants and
permanent residents in foreign countries who have executed and
submitted their affidavits conformably with Section 5(d) of R.A. No.
9189. He maintains that through the execution of the requisite affidavits,
the Congress of the Philippines with the concurrence of the President of
the Republic had in fact given these immigrants and permanent
residents the opportunity, pursuant to Section 2, Article V of the
Constitution, to manifest that they had in fact never abandoned their
Philippine domicile; that indubitably, they would have formally and
categorically expressed the requisite intentions, i.e., animus
manendi and animus revertendi; that Filipino immigrants and
permanent residents abroad possess the unquestionable right to
exercise the right of suffrage under Section 1, Article V of the
Constitution upon approval of their registration, conformably with R.A.
No. 9189.[22]
The seed of the present controversy is the interpretation that is
given to the phrase, qualified citizens of the Philippines abroad as it
appears in R.A. No. 9189, to wit:
SEC. 2. Declaration of Policy. It is the prime duty of the State to
provide a system of honest and orderly overseas absentee voting that
upholds the secrecy and sanctity of the ballot. Towards this end, the
State ensures equal opportunity to all qualified citizens of the
Philippines abroad in the exercise of this fundamental right.
SEC. 3. Definition of Terms. For purposes of this Act:
a) Absentee Voting refers to the process by which qualified
citizens of the Philippines abroad, exercise their right to vote;

. . . (Emphasis supplied)

Congress to provide a system for absentee voting by qualified Filipinos

abroad.

f)
Overseas Absentee Voter refers to a citizen of the Philippines
who is qualified to register and vote under this Act, not otherwise
disqualified by law, who is abroad on the day of elections. (Emphasis
supplied)

A simple, cursory reading of Section 5(d) of R.A. No. 9189 may

indeed give the impression that it contravenes Section 1, Article V of the
Constitution. Filipino immigrants and permanent residents overseas are
perceived as having left and abandoned the Philippines to live
permanently in their host countries and therefore, a provision in the law
enfranchising those who do not possess the residency requirement of
the Constitution by the mere act of executing an affidavit expressing
their intent to return to the Philippines within a given period, risks a
declaration of unconstitutionality. However, the risk is more apparent
than real.

SEC. 4. Coverage. All citizens of the Philippines abroad, who are

not otherwise disqualified by law, at least eighteen (18) years of age
on the day of elections, may vote for president, vice-president, senators
and party-list representatives. (Emphasis supplied)
in relation to Sections 1 and 2, Article V of the Constitution which read:
SEC. 1. Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age,
and who shall have resided in the Philippines for at least one year and in
the place wherein they propose to vote for at least six months
immediately preceding the election. No literacy, property, or other
substantive requirement shall be imposed on the exercise of suffrage.
SEC. 2. The Congress shall provide a system for securing the
secrecy and sanctity of the ballot as well as a system for absentee
voting by qualified Filipinos abroad.
...

...

. . . (Emphasis supplied)

Section 1, Article V of the Constitution specifically provides that

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

The Constitution is the fundamental and paramount law of the

nation to which all other laws must conform and in accordance with
which all private rights must be determined and all public authority
administered.[23] Laws that do not conform to the Constitution shall be
stricken down for being unconstitutional.
Generally, however, all laws are presumed
constitutional. In Peralta vs. COMELEC, the Court said:

to

be

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

be within constitutional limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the legislature as well.
The question of the validity of every statute is first determined by the
legislative department of the government itself.[24]
Thus, presumption of constitutionality of a law must be overcome
convincingly:
. . . To declare a law unconstitutional, the repugnancy of that law to the
Constitution must be clear and unequivocal, for even if a law is aimed at
the attainment of some public good, no infringement of constitutional
rights is allowed. To strike down a law there must be a clear showing
that what the fundamental law condemns or prohibits, the statute allows
it to be done.[25]
As the essence of R.A. No. 9189 is to enfranchise overseas
qualified Filipinos, it behooves the Court to take a holistic view of the
pertinent provisions of both the Constitution and R.A. No. 9189. It is a
basic rule in constitutional construction that the Constitution should be
construed as a whole. In Chiongbian vs. De Leon,[26] the Court held that
a constitutional provision should function to the full extent of its

substance and its terms, not by itself alone, but in conjunction with all
other provisions of that great document. Constitutional provisions are
mandatory in character unless, either by express statement or by
necessary implication, a different intention is manifest. [27] The intent of
the Constitution may be drawn primarily from the language of the
document itself. Should it be ambiguous, the Court may consider the
intent of its framers through their debates in the constitutional
convention.[28]
R.A. No. 9189 was enacted in obeisance to the mandate of the
first paragraph of Section 2, Article V of the Constitution that Congress
shall provide a system for voting by qualified Filipinos abroad. It must
be stressed that Section 2 does not provide for the parameters of the
exercise of legislative authority in enacting said law. Hence, in the
absence of restrictions, Congress is presumed to have duly exercised its
function as defined in Article VI (The Legislative Department) of the
Constitution.
To put matters in their right perspective, it is necessary to dwell
first on the significance of absentee voting. The concept of absentee
voting is relatively new. It is viewed thus:
The method of absentee voting has been said to be completely
separable and distinct from the regular system of voting, and to be a
new and different manner of voting from that previously known, and an
exception to the customary and usual manner of voting. The right of
absentee and disabled voters to cast their ballots at an election
is purely statutory; absentee voting was unknown to, and not
recognized at, the common law.
Absentee voting is an outgrowth of modern social and economic
conditions devised to accommodate those engaged in military or civil life
whose duties make it impracticable for them to attend their polling
places on the day of election, and the privilege of absentee voting
may flow from constitutional provisions or be conferred by statutes,
existing in some jurisdictions, which provide in varying terms for the
casting and reception of ballots by soldiers and sailors or other qualified
voters absent on election day from the district or precinct of their
residence.
Such statutes are regarded as conferring a privilege and not a right, or
an absolute right. When the legislature chooses to grant the right by
statute, it must operate with equality among all the class to which it
is granted; but statutes of this nature may be limited in their
application to particular types of elections. The statutes should be

construed in the light of any constitutional provisions affecting

registration and elections, and with due regard to their texts prior to
amendment and to predecessor statutes and the decisions
thereunder; they should also be construed in the light of the
circumstances under which they were enacted; and so as to carry
out the objects thereof, if this can be done without doing violence to their
provisions and mandates. Further, in passing on statutes regulating
absentee voting, the court should look to the whole and every part
of the election laws, the intent of the entire plan, and reasons and
spirit of their adoption, and try to give effect to every portion
thereof.[29] (Emphasis supplied)

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.

Ordinarily, an absentee is not a resident and vice versa; a person

cannot be at the same time, both a resident and an absentee.
[30]
However, under our election laws and the countless pronouncements
of the Court pertaining to elections, an absentee remains attached to
his residence in the Philippines as residence is considered
synonymous withdomicile.

For political purposes the concepts of residence and domicile are

dictated by the peculiar criteria of political laws. As these concepts have
evolved in our election law, what has clearly and unequivocally
emerged is the fact that residence for election purposes is used
synonymously with domicile.[32] (Emphasis supplied)

In Romualdez-Marcos,[31] the Court enunciated:

Article 50 of the Civil Code decrees that [f]or the exercise of civil rights
and the fulfillment of civil obligations, the domicile of natural persons is
their place of habitual residence. In Ong vs. Republic, this court took
the concept of domicile to mean an individuals permanent home, a
place to which, whenever absent for business or for pleasure, one
intends to return, and depends on facts and circumstances in the sense
that they disclose intent. Based on the foregoing, domicile includes the
twin elements of the fact of residing or physical presence in a fixed
place and animus manendi, or the intention of returning there
permanently.
Residence, in its ordinary conception, implies the factual relationship of
an individual to a certain place. It is the physical presence of a person in
a given area, community or country. The essential distinction between
residence and domicile in law is that residence involves the intent to
leave when the purpose for which the resident has taken up his abode
ends. One may seek a place for purposes such as pleasure, business,
or health. If a persons intent be to remain, it becomes his domicile; if
his intent is to leave as soon as his purpose is established it is
residence. It is thus, quite perfectly normal for an individual to have
different residences in various places. However, a person can only
have a single domicile, unless, for various reasons, he successfully
abandons his domicile in favor of another domicile of
choice. In Uytengsu vs. Republic, we laid this distinction quite clearly:

Aware of the domiciliary legal tie that links an overseas Filipino to

his residence in this country, the framers of the Constitution considered
the circumstances that impelled them to require Congress to establish a
system for overseas absentee voting, thus:
MR. OPLE. With respect to Section 1, it is not clear whether the right of
suffrage, which here has a residential restriction, is not denied to citizens
temporarily residing or working abroad. Based on the statistics of
several government agencies, there ought to be about two million such
Filipinos at this time. Commissioner Bernas had earlier pointed out that
these provisions are really lifted from the two previous Constitutions of
1935 and 1973, with the exception of the last paragraph. They could not
therefore have foreseen at that time the phenomenon now described as
the Filipino labor force explosion overseas.
According to government data, there are now about 600,000 contract
workers and employees, and although the major portions of these
expatriate communities of workers are to be found in the Middle East,
they are scattered in 177 countries in the world.
In a previous hearing of the Committee on Constitutional Commissions
and Agencies, the Chairman of the Commission on Elections, Ramon
Felipe, said that there was no insuperable obstacle to making effective
the right of suffrage for Filipinos overseas. Those who have adhered to
their Filipino citizenship notwithstanding strong temptations are exposed
to embrace a more convenient foreign citizenship. And those who on

their own or under pressure of economic necessity here, find that they
have to detach themselves from their families to work in other countries
with definite tenures of employment. Many of them are on contract
employment for one, two, or three years. They have no intention of
changing their residence on a permanent basis, but are technically
disqualified from exercising the right of suffrage in their countries of
destination by the residential requirement in Section 1 which says:
Suffrage shall be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are eighteen years of age or over,
and who shall have resided in the Philippines for at least one year and in
the place wherein they propose to vote for at least six months preceding
the election.
I, therefore, ask the Committee whether at the proper time they might
entertain an amendment that will make this exercise of the right to vote
abroad for Filipino citizens an effective, rather than merely a nominal
right under this proposed Constitution.
FR. BERNAS. Certainly, the Committee will consider that. But more
than just saying that, I would like to make a comment on the meaning of
residence in the Constitution because I think it is a concept that has
been discussed in various decisions of the Supreme Court, particularly
in the case of Faypon vs. Quirino, a 1954 case which dealt precisely
with the meaning of residence in the Election Law. Allow me to quote:
A citizen may leave the place of his birth to look for greener pastures, as
the saying goes, to improve his lot and that, of course, includes study in
other places, practice of his avocation, reengaging in business. When an
election is to be held, the citizen who left his birthplace to improve his lot
may decide to return to his native town, to cast his ballot, but for
professional or business reasons, or for any other reason, he may not
absent himself from the place of his professional or business activities.
So, they are here registered as voters as he has the qualifications to be
one, and is not willing to give up or lose the opportunity to choose the
officials who are to run the government especially in national
elections. Despite such registration, the animus revertendi to his home,
to his domicile or residence of origin has not forsaken him.
This may be the explanation why the registration of a voter in a place
other than his residence of origin has not been deemed sufficient to
consider abandonment or loss of such residence of origin.

In other words, residence in this provision refers to two residence

qualifications: residence in the Philippines and residence in the place
where he will vote. As far as residence in the Philippines is concerned,
the word residence means domicile, but as far as residence in the
place where he will actually cast his ballot is concerned, the meaning
seems to be different. He could have a domicile somewhere else and
yet he is a resident of a place for six months and he is allowed to vote
there. So that there may be serious constitutional obstacles to absentee
voting, unless the vote of the person who is absent is a vote which
will be considered as cast in the place of his domicile.
MR. OPLE. Thank you for citing the jurisprudence.
It gives me scant comfort thinking of about two million Filipinos who
should enjoy the right of suffrage, at least a substantial segment of these
overseas Filipino communities. The Committee, of course, is aware that
when this Article of the Constitution explicitly and unequivocally extends
the right of effective suffrage to Filipinos abroad, this will call for a
logistical exercise of global proportions. In effect, this will require
budgetary and administrative commitments on the part of the Philippine
government, mainly through the COMELEC and the Ministry of Foreign
Affairs, and perhaps, a more extensive elaboration of this mechanism
that will be put in place to make effective the right to
vote. Therefore, seeking shelter in some wise jurisprudence of the
past may not be sufficient to meet the demands of the right of
suffrage for Filipinos abroad that I have mentioned. But I want to
thank the Committee for saying that an amendment to this effect may be
entertained at the proper time. . . . . . . . . .
[33]

(Emphasis supplied)

Thus, the Constitutional Commission recognized the fact that while

millions of Filipinos reside abroad principally for economic reasons and
hence they contribute in no small measure to the economic uplift of this
country, their voices are marginal insofar as the choice of this countrys
leaders is concerned.
The Constitutional Commission realized that under the laws then
existing and considering the novelty of the system of absentee voting in
this jurisdiction, vesting overseas Filipinos with the right to vote would
spawn constitutional problems especially because the Constitution itself
provides for the residency requirement of voters:

transient voting; meaning, those who are, let us say, studying in Manila
need not go back to their places of registration, for instance, in
Mindanao, to cast their votes.
MR. MONSOD. I think our provision is for absentee voting by Filipinos
abroad.
MR. REGALADO. How about those people who cannot go back to the
places where they are registered?
MR. MONSOD. Under the present Election Code, there are provisions
for allowing students and military people who are temporarily in another
place to register and vote. I believe that those situations can be covered
by the Omnibus Election Code. The reason we want absentee voting
to be in the Constitution as a mandate to the legislature is that
there could be inconsistency on the residence rule if it is just a
question of legislation by Congress. So, by allowing it and saying
that this is possible, then legislation can take care of the rest.
[34]
(Emphasis supplied)
Thus, Section 2, Article V of the Constitution came into being to remove
any doubt as to the inapplicability of the residency requirement in
Section 1. It is precisely to avoid any problems that could impede the
implementation of its pursuit to enfranchise the largest number of
qualified Filipinos who are not in the Philippines that the Constitutional
Commission explicitly mandated Congress to provide a system for
overseas absentee voting.
The discussion of the Constitutional Commission on the effect of
the residency requirement prescribed by Section 1, Article V of the
Constitution on the proposed system of absentee voting for qualified
Filipinos abroad is enlightening:
MR. SUAREZ. May I just be recognized for a clarification. There are
certain qualifications for the exercise of the right of suffrage like having
resided in the Philippines for at least one year and in the place where
they propose to vote for at least six months preceding the elections.
What is the effect of these mandatory requirements on the matter of the
exercise of the right of suffrage by the absentee voters like Filipinos
abroad?
THE PRESIDENT. Would Commissioner Monsod care to answer?

MR. REGALADO. Before I act on that, may I inquire from

Commissioner Monsod if the term absentee voting also includes

MR. MONSOD. I believe the answer was already given by

Commissioner Bernas, that the domicile requirements as well as the
qualifications and disqualifications would be the same.
THE PRESIDENT. Are we leaving it to the legislature to devise the
system?
FR. BERNAS. I think there is a very legitimate problem raised there.
THE PRESIDENT. Yes.
MR. BENGZON. I believe Commissioner Suarez is clarified.
FR. BERNAS. But I think it should be further clarified with regard to the
residence requirement or the place where they vote in practice; the
understanding is that it is flexible. For instance, one might be a resident
of Naga or domiciled therein, but he satisfies the requirement of
residence in Manila, so he is able to vote in Manila.
MR. TINGSON. Madam President, may I then suggest to the
Committee to change the word Filipinos to QUALIFIED FILIPINO
VOTERS. Instead of VOTING BY FILIPINOS ABROAD, it should be
QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFIED
VOTERS LIVING ABROAD, would that not satisfy the requirement?
THE PRESIDENT. What does Commissioner Monsod say?
MR. MONSOD. Madam President, I think I would accept the phrase
QUALIFIED FILIPINOS ABROAD because QUALIFIED would
assume that he has the qualifications and none of the disqualifications to
vote.
MR. TINGSON. That is right. So does the Committee accept?
FR. BERNAS. QUALIFIED FILIPINOS ABROAD?
THE PRESIDENT. Does the Committee accept the amendment?
MR. REGALADO. Madam President.
THE PRESIDENT. Commissioner Regalado is recognized.

MR. REGALADO. When Commissioner Bengzon asked me to read my

proposed amendment, I specifically stated that the National Assembly
shall prescribe a system which will enable qualified citizens, temporarily
absent from the Philippines, to vote. According to Commissioner
Monsod, the use of the phrase absentee voting already took that into
account as its meaning. That is referring to qualified Filipino citizens
temporarily abroad.
MR. MONSOD. Yes, we accepted that. I would like to say that with
respect to registration we will leave it up to the legislative assembly, for
example, to require where the registration is. If it is, say, members of
the diplomatic corps who may be continuously abroad for a long time,
perhaps, there can be a system of registration in the
embassies. However, we do not like to preempt the legislative
assembly.
THE PRESIDENT. Just to clarify, Commissioner Monsods amendment
is only to provide a system.
MR. MONSOD. Yes.
THE PRESIDENT. The Commissioner is not stating here that he wants
new qualifications for these absentee voters.
MR. MONSOD. That is right. They must have the qualifications and
none of the disqualifications.
THE PRESIDENT. It is just to devise a system by which they can vote.
MR. MONSOD. That is right, Madam President.[35] (Emphasis supplied)
Clearly therefrom, the intent of the Constitutional Commission is to
entrust to Congress the responsibility of devising a system of absentee
voting. The qualifications of voters as stated in Section 1 shall remain
except for the residency requirement. This is in fact the reason why the
Constitutional Commission opted for the term qualified Filipinos
abroad with respect to the system of absentee voting that Congress
should draw up. As stressed by Commissioner Monsod, by the use of
the adjective qualified with respect to Filipinos abroad, the assumption is
that they have the qualifications and none of the disqualifications to
vote. In fine-tuning the provision on absentee voting, the Constitutional
Commission discussed how the system should work:

MR. SUAREZ. For clarification purposes, we just want to state for the
record that in the case of qualified Filipino citizens residing abroad and
exercising their right of suffrage, they can cast their votes for the
candidates in the place where they were registered to vote in the
Philippines. So as to avoid any complications, for example, if they are
registered in Angeles City, they could not vote for a mayor in Naga City.
In other words, if that qualified voter is registered in Angeles City, then
he can vote only for the local and national candidates in Angeles City. I
just want to make that clear for the record.
MR. REGALADO. Madam President.
THE PRESIDENT. What does Commissioner Regalado
say?
MR. REGALADO. I just want to make a note on the
statement of Commissioner Suarez that this envisions
Filipinos residing abroad. The understanding in the
amendment is that the Filipino is temporarily
abroad. He may not be actually residing abroad; he
may just be there on a business trip. It just so
happens that the day before the elections he has to fly
to the United States, so he could not cast his vote. He
is temporarily abroad, but not residing there. He stays
in a hotel for two days and comes back. This is not
limited only to Filipinos temporarily residing
abroad. But as long as he is temporarily abroad on
the date of the elections, then he can fall within
the prescription of Congress in that situation.
MR. SUAREZ. I thank the Commissioner for his further
clarification. Precisely, we need this clarification on
record.
MR. MONSOD. Madam President, to clarify what we
mean by temporarily abroad, it need not be on
very short trips. One can be abroad on a treaty
traders visa. Therefore, when we talk about
registration, it is possible that his residence is in
Angeles and he would be able to vote for the
candidates in Angeles, but Congress or the
Assembly may provide the procedure for
registration, like listing ones name, in a registry
list in the embassy abroad. That is still possible
under the system.

FR. BERNAS. Madam President, just one clarification if

Commissioner Monsod agrees with this.
Suppose we have a situation of a child of a diplomatic officer
who reaches the voting age while living abroad and he
has never registered here. Where will he register? Will
he be a registered voter of a certain locality in the
Philippines?
MR. MONSOD. Yes, it is possible that the system will
enable that child to comply with the registration
requirements in an embassy in the United States and
his name is then entered in the official registration
book in Angeles City, for instance.
FR. BERNAS. In other words, he is not a registered voter of
Los Angeles, but a registered voter of a locality here.
MR. MONSOD. That is right. He does not have to come
home to the Philippines to comply with the registration
procedure here.
FR. BERNAS. So, he does not have to come home.
MR. BENGZON. Madam President, the Floor Leader
wishes to inquire if there are more clarifications
needed from the body.
Also, the Floor Leader is happy to announce that there are no
more registered Commissioners to propose amendments. So I move
that we close the period of amendments.
[36]

(Emphasis supplied)

It is clear from these discussions of the members of the

Constitutional Commission that they intended to enfranchise as much as
possible all Filipino citizens abroad who have not abandoned their
domicile of origin. The Commission even intended to extend to young
Filipinos who reach voting age abroad whose parents domicile of origin
is in the Philippines, and consider them qualified as voters for the first
time.
It is in pursuance of that intention that the Commission provided
for Section 2 immediately after the residency requirement of Section
1. By the doctrine of necessary implication in statutory construction,
which may be applied in construing constitutional provisions, [37] the
strategic location of Section 2 indicates that the Constitutional
Commission provided for an exception to the actual residency
requirement of Section 1 with respect to qualified Filipinos abroad. The

same Commission has in effect declared that qualified Filipinos who are
not in the Philippines may be allowed to vote even though they do not
satisfy the residency requirement in Section 1, Article V of the
Constitution.
That Section 2 of Article V of the Constitution is an exception to
the residency requirement found in Section 1 of the same Article was in
fact the subject of debate when Senate Bill No. 2104, which became
R.A. No. 9189, was deliberated upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked
into in relation to the constitutional provisions. I think
the sponsor and I would agree that the Constitution is
supreme in any statute that we may enact.
Let me read Section 1, Article V, of the Constitution entitled, Suffrage. It
says:
Section 1. Suffrage may be exercised by all citizens of the Philippines
not otherwise disqualified by law, who are at least eighteen years of age,
and who shall have resided in the Philippines for at least one year and in
the place wherein they propose to vote for at least six months
immediately preceding the election.
Now, Mr. President, the Constitution says, who shall have
resided in the Philippines. They are permanent
immigrants. They have changed residence so they
are barred under the Constitution. This is why I asked
whether this committee amendment which in fact does
not alter the original text of the bill will have any effect
on this?
Senator Angara. Good question, Mr. President. And this
has been asked in various fora. This is in compliance
with the Constitution. One, the interpretation here of
residence is synonymous with domicile.
As the gentleman and I know, Mr. President, domicile is the
intent to return to ones home. And the fact that a
Filipino may have been physically absent from the
Philippines and may be physically a resident of
the United States, for example, but has a clear
intent to return to the Philippines, will make him
qualified as a resident of the Philippines under
this law.

This is consistent, Mr. President, with the constitutional

mandate that we that Congress must provide a
franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle
literally as demanding physical presence, then
there is no way we can provide for offshore voting
to our offshorekababayan, Mr. President.
Senator Arroyo. Mr. President, when the Constitution says,
in Section 2 of Article V, it reads: The Congress shall
provide a system for securing the secrecy and sanctity
of the ballot as well as a system for absentee voting by
qualified Filipinos abroad.
The key to this whole exercise, Mr. President, is
qualified. In other words, anything that we may
do or say in granting our compatriots abroad must
be anchored on the proposition that they are
qualified. Absent the qualification, they cannot
vote. And residents (sic) is a qualification.
I will lose votes here from permanent residents so-called
green-card holders, but the Constitution is the
Constitution. We cannot compromise on this. The
Senate cannot be a party to something that would
affect or impair the Constitution.
Look at what the Constitution says In the place wherein
they propose to vote for at least six months
immediately preceding the election.
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros where Senator
Cayetano lives. We are separated only by a
creek. But one who votes in Makati cannot vote in
Pateros unless he resides in Pateros for six months.
That is how restrictive our Constitution is. I am not
talking even about the Election Code. I am talking
about the Constitution.
As I have said, if a voter in Makati would want to vote in
Pateros, yes, he may do so. But he must do so, make
the transfer six months before the election, otherwise,
he is not qualified to vote.

That is why I am raising this point because I think we have a

fundamental difference here.
Senator Angara. It is a good point to raise, Mr.
President. But it is a point already well-debated even
in the constitutional commission of 1986. And the
reason Section 2 of Article V was placed
immediately
after
the six-month/one-year
residency requirement is to demonstrate
unmistakably that Section 2 which authorizes
absentee voting is an exception to the sixmonth/one-year residency requirement. That is the
first principle, Mr. President, that one must remember.
The second reason, Mr. President, is that under our
jurisprudence and I think this is so well-entrenched
that one need not argue about it residency has
been interpreted as synonymous with domicile.
But the third more practical reason, Mr. President, is, if
we follow the interpretation of the gentleman, then
it is legally and constitutionally impossible to give
a franchise to vote to overseas Filipinos who do
not physically live in the country, which is quite
ridiculous because that is exactly the whole point
of this exercise to enfranchise them and
empower them to vote.
[38]

(Emphasis supplied)

Accordingly, Section 4 of R.A. No. 9189 provides for the coverage

of the absentee voting process, to wit:
SEC. 4. Coverage. All citizens of the Philippines abroad, who are not
otherwise disqualified by law, at least eighteen (18) years of age on the
day of elections, may vote for president, vice-president, senators and
party-list representatives.
which does not require physical residency in the Philippines; and
Section 5 of the assailed law which enumerates those who are
disqualified, to wit:
SEC. 5. Disqualifications. The following shall be disqualified from
voting under this Act:

a) Those who have lost their Filipino citizenship in accordance with

Philippine laws;
b) Those who have expressly renounced their Philippine citizenship
and who have pledged allegiance to a foreign country;
c) Those who have committed and are convicted in a final judgment
by a court or tribunal of an offense punishable by imprisonment of not
less than one (1) year, including those who have committed and been
found guilty of Disloyalty as defined under Article 137 of the Revised
Penal Code, such disability not having been removed by plenary pardon
or amnesty: Provided, however, That any person disqualified to vote
under this subsection shall automatically acquire the right to vote upon
expiration of five (5) years after service of sentence; Provided, further,
That the Commission may take cognizance of final judgments issued by
foreign courts or tribunals only on the basis of reciprocity and subject to
the formalities and processes prescribed by the Rules of
Court on execution of judgments;
d) An immigrant or a permanent resident who is recognized as such
in the host country, unless he/she executes, upon registration, an
affidavit prepared for the purpose by the Commission declaring that
he/she shall resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of his/her
registration under this Act. Such affidavit shall also state that he/she has
not applied for citizenship in another country. Failure to return shall be
cause for the removal of the name of the immigrant or permanent
resident from the National Registry of Absentee Voters and his/her
permanent disqualification to vote in absentia.
e) Any citizen of the Philippines abroad previously declared insane or
incompetent by competent authority in the Philippines or abroad, as
verified by the Philippine embassies, consulates or foreign service
establishments concerned, unless such competent authority
subsequently certifies that such person is no longer insane or
incompetent.
As finally approved into law, Section 5(d) of R.A. No. 9189
specifically disqualifies an immigrant or permanent resident who is
recognized as such in the host country because immigration or
permanent residence in another country implies renunciation of ones
residence in his country of origin. However, same Section allows an
immigrant and permanent resident abroad to register as voter for as long
as he/she executes an affidavit to show that he/she has not abandoned

his domicile in pursuance of the constitutional intent expressed in

Sections 1 and 2 of Article V that all citizens of the Philippines not
otherwise disqualified by law must be entitled to exercise the right of
suffrage and, that Congress must establish a system for absentee
voting; for otherwise, if actual, physical residence in the Philippines is
required, there is no sense for the framers of the Constitution to
mandate Congress to establish a system for absentee voting.
Contrary to the claim of petitioner, the execution of the affidavit
itself is not the enabling or enfranchising act. The affidavit required in
Section 5(d) is not only proof of the intention of the immigrant or
permanent resident to go back and resume residency in the Philippines,
but more significantly, it serves as an explicit expression that he had not
in fact abandoned his domicile of origin. Thus, it is not correct to say that
the execution of the affidavit under Section 5(d) violates the Constitution
that proscribes provisional registration or a promise by a voter to
perform a condition to be qualified to vote in a political exercise.
To repeat, the affidavit is required of immigrants and permanent
residents abroad because by their status in their host countries, they are
presumed to have relinquished their intent to return to this country; thus,
without the affidavit, the presumption of abandonment of Philippine
domicile shall remain.
Further perusal of the transcripts of the Senate proceedings
discloses another reason why the Senate required the execution of said
affidavit. It wanted the affiant to exercise the option to return or to
express his intention to return to his domicile of origin and not to
preempt that choice by legislation. Thus:
Senator Villar. Yes, we are going back.
It states that: For Filipino immigrants and those who have
acquired permanent resident status abroad, a
requirement for the registration is the submission of a
Sworn Declaration of Intent to Return duly sworn
before any Philippine embassy or consulate official
authorized to administer oath
Mr. President, may we know the rationale of this provision?
Is the purpose of this Sworn Declaration to include
only those who have the intention of returning to be
qualified to exercise the right of suffrage? What if the
Filipino immigrant has no purpose of returning? Is he
automatically disbarred from exercising this right to
suffrage?

Senator Angara. The rationale for this, Mr. President, is

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

It must be emphasized that Section 5(d) does not only require an

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

Contrary to petitioners claim that Section 5(d) circumvents the

Constitution, Congress enacted the law prescribing a system of
overseas absentee voting in compliance with the constitutional
mandate. Such mandate expressly requires that Congress provide a
system of absentee voting that necessarily presupposes that the
qualified citizen of the Philippines abroad is not physically present in
the country. The provisions of Sections 5(d) and 11 are components of
the system of overseas absentee voting established by R.A. No.
9189. The qualified Filipino abroad who executed the affidavit is
deemed to have retained his domicile in the Philippines. He is
presumed not to have lost his domicile by his physical absence from this
country. His having become an immigrant or permanent resident of his
host country does not necessarily imply an abandonment of his intention
to return to his domicile of origin, the Philippines. Therefore, under the
law, he must be given the opportunity to express that he has not actually
abandoned his domicile in the Philippines by executing the affidavit
required by Sections 5(d) and 8(c) of the law.
Petitioners speculative apprehension that the implementation of
Section 5(d) would affect the credibility of the elections is insignificant as
what is important is to ensure that all those who possess the
qualifications to vote on the date of the election are given the opportunity
and permitted to freely do so. The COMELEC and the Department of
Foreign Affairs have enough resources and talents to ensure the
integrity and credibility of any election conducted pursuant to R.A. No.
9189.
As to the eventuality that the Filipino abroad would renege on his
undertaking to return to the Philippines, the penalty of perpetual
disenfranchisement provided for by Section 5(d) would suffice to serve
as deterrence to non-compliance with his/her undertaking under the
affidavit.
Petitioner argues that should a sizable number of immigrants
renege on their promise to return, the result of the elections would be
affected and could even be a ground to contest the proclamation of the
winning candidates and cause further confusion and doubt on the
integrity of the results of the election. Indeed, the probability that after
an immigrant has exercised the right to vote, he shall opt to remain in his
host country beyond the third year from the execution of the affidavit, is
not farfetched. However, it is not for this Court to determine the wisdom
of a legislative exercise. As expressed in Taada vs. Tuvera,[40] the
Court is not called upon to rule on the wisdom of the law or to repeal it or
modify it if we find it impractical.
Congress itself was conscious of said probability and in fact, it has
addressed the expected problem. Section 5(d) itself provides for a

deterrence which is that the Filipino who fails to return as promised

stands to lose his right of suffrage. Under Section 9, should a registered
overseas absentee voter fail to vote for two consecutive national
elections, his name may be ordered removed from the National Registry
of Overseas Absentee Voters.
Other serious legal questions that may be raised would be: what
happens to the votes cast by the qualified voters abroad who were not
able to return within three years as promised? What is the effect on the
votes cast by the non-returnees in favor of the winning candidates? The
votes cast by qualified Filipinos abroad who failed to return within three
years shall not be invalidated because they were qualified to vote on the
date of the elections, but their failure to return shall be cause for the
removal of the names of the immigrants or permanent residents from the
National Registry of Absentee Voters and their permanent
disqualification to vote in absentia.
In fine, considering the underlying intent of the Constitution, the
Court does not find Section 5(d) of R.A. No. 9189 as constitutionally
defective.
B.
Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of
the same Act in contravention of Section 4, Article VII of the
Constitution?
Section 4 of R.A. No. 9189 provides that the overseas absentee
voter may vote for president, vice-president, senators and party-list
representatives.
Section 18.5 of the same Act provides:
SEC. 18. On-Site Counting and Canvassing.
...

...

...

18. 5 The canvass of votes shall not cause the delay of the
proclamation of a winning candidate if the outcome of the election will
not be affected by the results thereof. Notwithstanding the
foregoing, the Commission is empowered to order the proclamation
of winning candidates despite the fact that the scheduled election has
not taken place in a particular country or countries, if the holding of
elections therein has been rendered impossible by events, factors and
circumstances peculiar to such country or countries, in which events,
factors and circumstances are beyond the control or influence of the
Commission. (Emphasis supplied)

Petitioner claims that the provision of Section 18.5 of R.A. No.

9189 empowering the COMELEC to order the proclamation of winning
candidates insofar as it affects the canvass of votes and proclamation of
winning candidates for president and vice-president, is unconstitutional
because it violates the following provisions of paragraph 4, Section 4 of
Article VII of the Constitution:
SEC. 4 . . .
The returns of every election for President and Vice-President, duly
certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the
Senate. Upon receipt of the certificates of canvass, the President of the
Senate shall, not later than thirty days after the day of the election, open
all the certificates in the presence of the Senate and the House of
Representatives in joint public session, and the Congress, upon
determination of the authenticity and due execution thereof in the
manner provided by law, canvass the votes.
The person having the highest number of votes shall be proclaimed
elected, but in case two or more shall have an equal and highest
number of votes, one of them shall forthwith be chosen by the vote of a
majority of all the Members of both Houses of the Congress, voting
separately.
The Congress shall promulgate its rules for the canvassing of the
certificates.
...
which gives to Congress the duty to canvass the votes and proclaim the
winning candidates for president and vice-president.
The Solicitor General asserts that this provision must be
harmonized with paragraph 4, Section 4, Article VII of the Constitution
and should be taken to mean that COMELEC can only proclaim the
winning Senators and party-list representatives but not the President
and Vice-President.[41]
Respondent COMELEC has no comment on the matter.
Indeed, the phrase, proclamation of winning candidates, in Section
18.5 of R.A. No. 9189 is far too sweeping that it necessarily includes the
proclamation of the winning candidates for the presidency and the vicepresidency.

Section 18.5 of R.A. No. 9189 appears to be repugnant to Section

4, Article VII of the Constitution only insofar as said Section totally
disregarded the authority given to Congress by the Constitution to
proclaim the winning candidates for the positions of president and vicepresident.
In addition, the Court notes that Section 18.4 of the law, to wit:
18.4. . . . Immediately upon the completion of the canvass, the
chairman of the Special Board of Canvassers shall transmit via
facsimile, electronic mail, or any other means of transmission equally
safe and reliable the Certificates of Canvass and the Statements of
Votes to the Commission, . . . [Emphasis supplied]
clashes with paragraph 4, Section 4, Article VII of the Constitution which
provides that the returns of every election for President and VicePresident shall be certified by the board of canvassers to Congress.
Congress could not have allowed the COMELEC to usurp a power
that constitutionally belongs to it or, as aptly stated by petitioner, to
encroach on the power of Congress to canvass the votes for president
and vice-president and the power to proclaim the winners for the said
positions. The provisions of the Constitution as the fundamental law of
the land should be read as part of The Overseas Absentee Voting Act of
2003 and hence, the canvassing of the votes and the proclamation of
the winning candidates for president and vice-president for the entire
nation must remain in the hands of Congress.
C.
Are Sections 19 and 25 of R.A. No. 9189 in violation of
Section 1, Article IX-A of the Constitution?
Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate
Article IX-A (Common Provisions) of the Constitution, to wit:
Section 1. The Constitutional Commissions, which shall
be independent, are the Civil Service Commission, the Commission on
Elections, and the Commission on Audit. (Emphasis supplied)
He submits that the creation of the Joint Congressional Oversight
Committee with the power to review, revise, amend and approve the
Implementing Rules and Regulations promulgated by the COMELEC,
R.A. No. 9189 intrudes into the independence of the COMELEC which,
as a constitutional body, is not under the control of either the executive
or legislative departments of government; that only the COMELEC itself
can promulgate rules and regulations which may be changed or revised
only by the majority of its members; and that should the rules

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

...

. . . (Emphasis supplied)

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

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

Oversight Committee created by virtue of this Act for prior

approval.
...

...

. . . (Emphasis supplied)

Composed of Senators and Members of the House of Representatives,

the Joint Congressional Oversight Committee (JCOC) is a purely
legislative body. There is no question that the authority of Congress to
monitor and evaluate the implementation of R.A. No. 9189 is geared
towards possible amendments or revision of the law itself and thus, may
be performed in aid of its legislation.
However, aside from its monitoring and evaluation functions, R.A.
No. 9189 gives to the JCOC the following functions: (a) to review,
revise, amend and approve the Implementing Rules and Regulations
(IRR) promulgated by the COMELEC [Sections 25 and 19]; and (b)
subject to the approval of the JCOC [Section 17.1], the voting by mail in
not more than three countries for the May 2004 elections and in any
country determined by COMELEC.
The ambit of legislative power under Article VI of the Constitution
is circumscribed by other constitutional provisions. One such provision
is Section 1 of Article IX-A of the 1987 Constitution ordaining that
constitutional commissions such as the COMELEC shall be
independent.
Interpreting Section 1, Article X of the 1935 Constitution providing
that there shall be an independent COMELEC, the Court has held that
[w]hatever may be the nature of the functions of the Commission on
Elections, the fact is that the framers of the Constitution wanted it to be
independent from the other departments of the Government. [44] In an
earlier case, the Court elucidated:
The Commission on Elections is a constitutional body. It is intended to
play a distinct and important part in our scheme of government. In the
discharge of its functions, it should not be hampered with restrictions
that would be fully warranted in the case of a less responsible
organization. The Commission may err, so may this court also. It should
be allowed considerable latitude in devising means and methods that
will insure the accomplishment of the great objective for which it was
created free, orderly and honest elections. We may not agree fully
with its choice of means, but unless these are clearly illegal or constitute
gross abuse of discretion, this court should not interfere. Politics is a
practical matter, and political questions must be dealt with realistically
not from the standpoint of pure theory. The Commission on Elections,

because of its fact-finding facilities, its contacts with political strategists,

and its knowledge derived from actual experience in dealing with
political controversies, is in a peculiarly advantageous position to decide
complex political questions.
[45]

(Emphasis supplied)

The Court has no general powers of supervision over COMELEC

which is an independent body except those specifically granted by the
Constitution, that is, to review its decisions, orders and rulings. [46] In the
same vein, it is not correct to hold that because of its recognized
extensive legislative power to enact election laws, Congress may intrude
into the independence of the COMELEC by exercising supervisory
powers over its rule-making authority.
By virtue of Section 19 of R.A. No. 9189, Congress has
empowered the COMELEC to issue the necessary rules and
regulations to effectively implement the provisions of this Act within sixty
days from the effectivity of this Act. This provision of law follows the
usual procedure in drafting rules and regulations to implement a law
the legislature grants an administrative agency the authority to craft the
rules and regulations implementing the law it has enacted, in recognition
of the administrative expertise of that agency in its particular field of
operation.[47] Once a law is enacted and approved, the legislative
function is deemed accomplished and complete. The legislative function
may spring back to Congress relative to the same law only if that body
deems it proper to review, amend and revise the law, but certainly not to
approve, review, revise and amend the IRR of the COMELEC.
By vesting itself with the powers to approve, review, amend, and
revise the IRR for The Overseas Absentee Voting Act of 2003, Congress
went beyond the scope of its constitutional authority. Congress trampled
upon the constitutional mandate of independence of the
COMELEC. Under such a situation, the Court is left with no option but
to withdraw from its usual reticence in declaring a provision of law
unconstitutional.
The second sentence of the first paragraph of Section 19 stating
that [t]he Implementing Rules and Regulations shall be submitted to the
Joint Congressional Oversight Committee created by virtue of this Act
for prior approval, and the second sentence of the second paragraph of
Section 25 stating that [i]t shall review, revise, amend and approve the
Implementing Rules and Regulations promulgated by the Commission,
whereby Congress, in both provisions, arrogates unto itself a function
not specifically vested by the Constitution, should be stricken out of the

subject statute for constitutional infirmity. Both provisions brazenly

violate the mandate on the independence of the COMELEC.
Similarly, the phrase, subject to the approval of the Congressional
Oversight Committee in the first sentence of Section 17.1 which
empowers the Commission to authorize voting by mail in not more than
three countries for the May, 2004 elections; and the phrase, only upon
review and approval of the Joint Congressional Oversight Committee
found in the second paragraph of the same section are unconstitutional
as they require review and approval of voting by mail in any country after
the 2004 elections. Congress may not confer upon itself the authority to
approve or disapprove the countries wherein voting by mail shall be
allowed, as determined by the COMELEC pursuant to the conditions
provided for in Section 17.1 of R.A. No. 9189. [48] Otherwise, Congress
would overstep the bounds of its constitutional mandate and intrude into
the independence of the COMELEC.
During the deliberations, all the members of the Court agreed to
adopt the separate opinion of Justice Reynato S. Puno as part of the
ponencia on the unconstitutionality of Sections 17.1, 19 and 25 of R.A.
No. 9189 insofar as they relate to the creation of and the powers given
to the Joint Congressional Oversight Committee.
WHEREFORE, the petition is partly GRANTED. The following
portions of R.A. No. 9189 are declared VOID for being
UNCONSTITUTIONAL:
a) The phrase in the first sentence of the first paragraph
of Section 17.1, to wit: subject to the approval of the
Joint Congressional Oversight Committee;
b) The portion of the last paragraph of Section 17.1, to
wit: only upon review and approval of the Joint
Congressional Oversight Committee;
c) The second sentence of the first paragraph of Section
19, to wit: The Implementing Rules and Regulations
shall be submitted to the Joint Congressional
Oversight Committee created by virtue of this Act for
prior approval; and
d) The second sentence in the second paragraph of Section 25, to
wit: It shall review, revise, amend and approve the Implementing
Rules and Regulations promulgated by the Commission of the
same law;

for being repugnant to Section 1, Article IX-A of the Constitution

mandating the independence of constitutional commission, such as
COMELEC.
The constitutionality of Section 18.5 of R.A. No. 9189
is UPHELD with respect only to the authority given to the COMELEC to
proclaim the winning candidates for the Senators and party-list
representatives but not as to the power to canvass the votes and
proclaim the winning candidates for President and Vice-President which
is lodged with Congress under Section 4, Article VII of the Constitution.
The constitutionality of Section 5(d) is UPHELD.
Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions
of said law continues to be in full force and effect.
SO ORDERED.
G.R. No. 119976 September 18, 1995
IMELDA ROMUALDEZ-MARCOS, petitioner,
vs.
COMMISSION ON ELECTIONS and CIRILO ROY
MONTEJO, respondents.

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

RESIDENCE IN THE CONSTITUENCY WHERE I

SEEK TO BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION: __________ Years
and seven Months.
On March 23, 1995, private respondent Cirilo Roy Montejo, the
incumbent Representative of the First District of Leyte and a candidate
for the same position, filed a "Petition for Cancellation and
Disqualification" 5 with the Commission on Elections alleging that
petitioner did not meet the constitutional requirement for residency. In
his petition, private respondent contended that Mrs. Marcos lacked the
Constitution's one year residency requirement for candidates for the
House of Representatives on the evidence of declarations made by her
in Voter Registration Record 94-No. 3349772 6and in her Certificate of
Candidacy. He prayed that "an order be issued declaring (petitioner)
disqualified and canceling the certificate of candidacy." 7
On March 29, 1995, petitioner filed an Amended/Corrected Certificate of
Candidacy, changing the entry "seven" months to "since childhood" in
item no. 8 of the amended certificate. 8 On the same day, the Provincial
Election Supervisor of Leyte informed petitioner that:
[T]his office cannot receive or accept the
aforementioned Certificate of Candidacy on the
ground that it is filed out of time, the deadline for the
filing of the same having already lapsed on March
20, 1995. The Corrected/Amended Certificate of
Candidacy should have been filed on or before the
March 20, 1995 deadline. 9
Consequently, petitioner filed the Amended/Corrected Certificate of
Candidacy with the COMELEC's Head Office in Intramuros, Manila on
March 31, 1995. Her Answer to private respondent's petition in SPA No.
95-009 was likewise filed with the head office on the same day. In said
Answer, petitioner averred that the entry of the word "seven" in her
original Certificate of Candidacy was the result of an "honest
misinterpretation" 10 which she sought to rectify by adding the words
"since childhood" in her Amended/Corrected Certificate of Candidacy
and that "she has always maintained Tacloban City as her domicile or
residence. 11 Impugning respondent's motive in filing the petition seeking
her disqualification, she noted that:
When respondent (petitioner herein) announced that
she was intending to register as a voter in Tacloban

City and run for Congress in the First District of

Leyte, petitioner immediately opposed her intended
registration by writing a letter stating that "she is not
a resident of said city but of Barangay Olot, Tolosa,
Leyte. After respondent had registered as a voter in
Tolosa following completion of her six month actual
residence therein, petitioner filed a petition with the
COMELEC to transfer the town of Tolosa from the
First District to the Second District and pursued such
a move up to the Supreme Court, his purpose being
to remove respondent as petitioner's opponent in the
congressional election in the First District. He also
filed a bill, along with other Leyte Congressmen,
seeking the creation of another legislative district to
remove the town of Tolosa out of the First District, to
achieve his purpose. However, such bill did not pass
the Senate. Having failed on such moves, petitioner
now filed the instant petition for the same objective,
as it is obvious that he is afraid to submit along with
respondent for the judgment and verdict of the
electorate of the First District of Leyte in an honest,
orderly, peaceful, free and clean elections on May 8,
1995. 12
On April 24, 1995, the Second Division of the Commission on Elections
(COMELEC), by a vote of 2 to 1, 13 came up with a Resolution 1) finding
private respondent's Petition for Disqualification in SPA 95-009
meritorious; 2) striking off petitioner's Corrected/Amended Certificate of
Candidacy of March 31, 1995; and 3) canceling her original Certificate of
Candidacy. 14 Dealing with two primary issues, namely, the validity of
amending the original Certificate of Candidacy after the lapse of the
deadline for filing certificates of candidacy, and petitioner's compliance
with the one year residency requirement, the Second Division held:
Respondent raised the affirmative defense in her
Answer that the printed word "Seven" (months) was
a result of an "honest misinterpretation or honest
mistake" on her part and, therefore, an amendment
should subsequently be allowed. She averred that
she thought that what was asked was her "actual
and physical" presence in Tolosa and not residence
of origin or domicile in the First Legislative District, to
which she could have responded "since childhood."
In an accompanying affidavit, she stated that her
domicile is Tacloban City, a component of the First

District, to which she always intended to return

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

To further buttress respondent's contention that an

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

March 8, 1995 will only sum up to 7 months. The

Commission, therefore, cannot be persuaded to
believe in the respondent's contention that it was an
error.
xxx xxx xxx
Based on these reasons the Amended/Corrected
Certificate of Candidacy cannot be admitted by this
Commission.
xxx xxx xxx
Anent the second issue, and based on the foregoing
discussion, it is clear that respondent has not
complied with the one year residency requirement of
the Constitution.
In election cases, the term "residence" has always
been considered as synonymous with "domicile"
which imports not only the intention to reside in a
fixed place but also personal presence in-that place,
coupled with conduct indicative of such intention.
Domicile denotes a fixed permanent residence to
which when absent for business or pleasure, or for
like reasons, one intends to return. (Perfecto Faypon
vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. 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
several occasions declared that she was a resident
of Manila. Although she spent her school days in
Tacloban, she is considered to have abandoned
such place when she chose to stay and reside in
other different places. In the case of Romualdez
vs. RTC(226 SCRA 408) the Court explained how
one acquires a new domicile by choice. There must
concur: (1) residence or bodily presence in the new
locality; (2) intention to remain there; and (3)
intention to abandon the old domicile. In other words
there must basically be animus
manendi with animus non revertendi. When
respondent chose to stay in Ilocos and later on in
Manila, coupled with her intention to stay there by
registering as a voter there and expressly declaring
that she is a resident of that place, she is deemed to
have abandoned Tacloban City, where she spent her
childhood and school days, as her place of domicile.

Pure intention to reside in that place is not sufficient,

there must likewise be conduct indicative of such
intention. Respondent's statements to the effect that
she has always intended to return to Tacloban,
without the accompanying conduct to prove that
intention, is not conclusive of her choice of
residence. Respondent has not presented any
evidence to show that her conduct, one year prior
the election, showed intention to reside in Tacloban.
Worse, what was evident was that prior to her
residence in Tolosa, she had been a resident of
Manila.
It is evident from these circumstances that she was
not a resident of the First District of Leyte "since
childhood."
To further support the assertion that she could have
not been a resident of the First District of Leyte for
more than one year, petitioner correctly pointed out
that on January 28, 1995 respondent registered as a
voter at precinct No. 18-A of Olot, Tolosa, Leyte. In
doing so, she placed in her Voter Registration
Record that she resided in the municipality of Tolosa
for a period of six months. This may be
inconsequential as argued by the respondent since it
refers only to her residence in Tolosa, Leyte. But her
failure to prove that she was a resident of the First
District of Leyte prior to her residence in Tolosa
leaves nothing but a convincing proof that she had
been a resident of the district for six months only. 15
In a Resolution promulgated a day before the May 8, 1995 elections, the
COMELEC en banc denied petitioner's Motion for Reconsideration 16 of
the April 24, 1995 Resolution declaring her not qualified to run for the
position of Member of the House of Representatives for the First
Legislative District of Leyte. 17 The Resolution tersely stated:
After deliberating on the Motion for Reconsideration,
the Commission RESOLVED to DENY it, no new
substantial matters having been raised therein to
warrant re-examination of the resolution granting the
petition for disqualification. 18

On May 11, 1995, the COMELEC issued a Resolution allowing

petitioner's proclamation should the results of the canvass show that she
obtained the highest number of votes in the congressional elections in
the First District of Leyte. On the same day, however, the COMELEC
reversed itself and issued a second Resolution directing that the
proclamation of petitioner be suspended in the event that she obtains
the highest number of votes. 19
In a Supplemental Petition dated 25 May 1995, petitioner averred that
she was the overwhelming winner of the elections for the congressional
seat in the First District of Leyte held May 8, 1995 based on the canvass
completed by the Provincial Board of Canvassers on May 14, 1995.
Petitioner alleged that the canvass showed that she obtained a total of
70,471 votes compared to the 36,833 votes received by Respondent
Montejo. A copy of said Certificate of Canvass was annexed to the
Supplemental Petition.
On account of the Resolutions disqualifying petitioner from running for
the congressional seat of the First District of Leyte and the public
respondent's Resolution suspending her proclamation, petitioner comes
to this court for relief.
Petitioner raises several issues in her Original and Supplemental
Petitions. The principal issues may be classified into two general areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a resident, for election
purposes, of the First District of Leyte for a period of
one year at the time of the May 9, 1995 elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly exercised its
jurisdiction in disqualifying petitioner outside the
period mandated by the Omnibus Election Code for
disqualification cases under Article 78 of the said
Code.
b) After the Elections

Whether or not the House of Representatives

Electoral Tribunal assumed exclusive jurisdiction
over the question of petitioner's qualifications after
the May 8, 1995 elections.
I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's Second Division reveals
a startling confusion in the application of settled concepts of "Domicile"
and "Residence" in election law. While the COMELEC seems to be in
agreement with the general proposition that for the purposes of election
law, residence is synonymous with domicile, the Resolution reveals a
tendency to substitute or mistake the concept of domicile for actual
residence, a conception not intended for the purpose of determining a
candidate's qualifications for election to the House of Representatives as
required by the 1987 Constitution. As it were, residence, for the purpose
of meeting the qualification for an elective position, has a settled
meaning in our jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights
and the fulfillment of civil obligations, the domicile of natural persons is
their place of habitual residence." In Ong vs. Republic 20 this court took
the concept of domicile to mean an individual's "permanent home", "a
place to which, whenever absent for business or for pleasure, one
intends to return, and depends on facts and circumstances in the sense
that they disclose intent." 21 Based on the foregoing, domicile includes
the twin elements of "the fact of residing or physical presence in a fixed
place" and animus manendi, or the intention of returning there
permanently.
Residence, in its ordinary conception, implies the factual relationship of
an individual to a certain place. It is the physical presence of a person in
a given area, community or country. The essential distinction between
residence and domicile in law is that residence involves the intent to
leave when the purpose for which the resident has taken up his abode
ends. One may seek a place for purposes such as pleasure, business,
or health. If a person's intent be to remain, it becomes his domicile; if his
intent is to leave as soon as his purpose is established it is
residence.22 It is thus, quite perfectly normal for an individual to have
different residences in various places. However, a person can only have
a single domicile, unless, for various reasons, he successfully abandons
his domicile in favor of another domicile of choice. In Uytengsu
vs. Republic, 23 we laid this distinction quite clearly:

There is a difference between domicile and

residence. "Residence" is used to indicate a place of
abode, whether permanent or temporary; "domicile"
denotes a fixed permanent residence to which, when
absent, one has the intention of returning. A man
may have a residence in one place and a domicile in
another. Residence is not domicile, but domicile is
residence coupled with the intention to remain for an
unlimited time. A man can have but one domicile for
the same purpose at any time, but he may have
numerous places of residence. His place of
residence is generally his place of domicile, but it is
not by any means necessarily so since no length of
residence without intention of remaining will
constitute domicile.
For political purposes the concepts of residence and domicile are
dictated by the peculiar criteria of political laws. As these concepts have
evolved in our election law, what has clearly and unequivocally emerged
is the fact that residence for election purposes is used synonymously
with domicile.
In Nuval vs. Guray, 24 the Court held that "the term residence. . . is
synonymous with domicile which imports not only intention to reside in a
fixed place, but also personal presence in that place, coupled with
conduct indicative of such intention." 25 Larena vs. Teves 26 reiterated the
same doctrine in a case involving the qualifications of the respondent
therein to the post of Municipal President of Dumaguete, Negros
Oriental. Faypon vs. Quirino, 27 held that the absence from residence to
pursue studies or practice a profession or registration as a voter other
than in the place where one is elected does not constitute loss of
residence. 28 So settled is the concept (of domicile) in our election law
that in these and other election law cases, this Court has stated that the
mere absence of an individual from his permanent residence without the
intention to abandon it does not result in a loss or change of domicile.
The deliberations of the 1987 Constitution on the residence qualification
for certain elective positions have placed beyond doubt the principle that
when the Constitution speaks of "residence" in election law, it actually
means only "domicile" to wit:
Mr. Nolledo: With respect to Section 5, I remember
that in the 1971 Constitutional Convention, there
was an attempt to require residence in the place not

less than one year immediately preceding the day of

the elections. So my question is: What is the
Committee's concept of residence of a candidate for
the legislature? Is it actual residence or is it the
concept of domicile or constructive residence?
Mr. Davide: Madame President, insofar as the
regular members of the National Assembly are
concerned, the proposed section merely provides,
among others, "and a resident thereof", that is, in the
district for a period of not less than one year
preceding the day of the election. This was in effect
lifted from the 1973 Constitution, the interpretation
given to it was domicile. 29
xxx xxx xxx
Mrs. Rosario Braid: The next question is on Section
7, page 2. I think Commissioner Nolledo has raised
the same point that "resident" has been interpreted
at times as a matter of intention rather than actual
residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentleman
consider at the proper time to go back to actual
residence rather than mere intention to reside?
Mr. De los Reyes: But we might encounter some
difficulty especially considering that a provision in
the Constitution in the Article on Suffrage says that
Filipinos living abroad may vote as enacted by law.
So, we have to stick to the original concept that it
should be by domicile and not physical residence.30
In Co vs. Electoral Tribunal of the House of Representatives, 31 this
Court concluded that the framers of the 1987 Constitution obviously
adhered to the definition given to the term residence in election law,
regarding it as having the same meaning as domicile. 32
In the light of the principles just discussed, has petitioner Imelda
Romualdez Marcos satisfied the residency requirement mandated by

Article VI, Sec. 6 of the 1987 Constitution? Of what significance is the

questioned entry in petitioner's Certificate of Candidacy stating her
residence in the First Legislative District of Leyte as seven (7) months?
It is the fact of residence, not a statement in a certificate of candidacy
which ought to be decisive in determining whether or not and individual
has satisfied the constitution's residency qualification requirement. The
said statement becomes material only when there is or appears to be a
deliberate attempt to mislead, misinform, or hide a fact which would
otherwise render a candidate ineligible. It would be plainly ridiculous for
a candidate to deliberately and knowingly make a statement in a
certificate of candidacy which would lead to his or her disqualification.
It stands to reason therefore, that petitioner merely committed an honest
mistake in jotting the word "seven" in the space provided for the
residency qualification requirement. The circumstances leading to her
filing the questioned entry obviously resulted in the subsequent
confusion which prompted petitioner to write down the period of her
actual stay in Tolosa, Leyte instead of her period of residence in the First
district, which was "since childhood" in the space provided. These
circumstances and events are amply detailed in the COMELEC's
Second Division's questioned resolution, albeit with a different
interpretation. For instance, when herein petitioner announced that she
would be registering in Tacloban City to make her eligible to run in the
First District, private respondent Montejo opposed the same, claiming
that petitioner was a resident of Tolosa, not Tacloban City. Petitioner
then registered in her place of actual residence in the First District,
which is Tolosa, Leyte, a fact which she subsequently noted down in her
Certificate of Candidacy. A close look at said certificate would reveal the
possible source of the confusion: the entry for residence (Item No. 7) is
followed immediately by the entry for residence in the constituency
where a candidate seeks election thus:
7. RESIDENCE (complete Address): Brgy. Olot,
Tolosa, Leyte
POST OFFICE ADDRESS FOR ELECTION
PURPOSES: Brgy. Olot, Tolosa, Leyte
8. RESIDENCE IN THE CONSTITUENCY WHERE I
SEEK TO
BE ELECTED IMMEDIATELY PRECEDING THE
ELECTION:_________ Years and Seven Months.

Having been forced by private respondent to register in her place of

actual residence in Leyte instead of petitioner's claimed domicile, it
appears that petitioner had jotted down her period of stay in her legal
residence or domicile. The juxtaposition of entries in Item 7 and Item 8
the first requiring actual residence and the second requiring domicile
coupled with the circumstances surrounding petitioner's registration
as a voter in Tolosa obviously led to her writing down an unintended
entry for which she could be disqualified. This honest mistake should
not, however, be allowed to negate the fact of residence in the First
District if such fact were established by means more convincing than a
mere entry on a piece of paper.
We now proceed to the matter of petitioner's domicile.
In support of its asseveration that petitioner's domicile could not possibly
be in the First District of Leyte, the Second Division of the COMELEC, in
its assailed Resolution of April 24,1995 maintains that "except for the
time when (petitioner) studied and worked for some years after
graduation in Tacloban City, she continuously lived in Manila." The
Resolution additionally cites certain facts as indicative of the fact that
petitioner's domicile ought to be any place where she lived in the last
few decades except Tacloban, Leyte. First, according to the Resolution,
petitioner, in 1959, resided in San Juan, Metro Manila where she was
also registered voter. Then, in 1965, following the election of her
husband to the Philippine presidency, she lived in San Miguel, Manila
where she as a voter. In 1978 and thereafter, she served as a member
of the Batasang Pambansa and Governor of Metro Manila. "She could
not, have served these positions if she had not been a resident of Metro
Manila," the COMELEC stressed. Here is where the confusion lies.
We have stated, many times in the past, that an individual does not lose
his domicile even if he has lived and maintained residences in different
places. Residence, it bears repeating, implies a factual relationship to a
given place for various purposes. The absence from legal residence or
domicile to pursue a profession, to study or to do other things of a
temporary or semi-permanent nature does not constitute loss of
residence. Thus, the assertion by the COMELEC that "she could not
have been a resident of Tacloban City since childhood up to the time she
filed her certificate of candidacy because she became a resident of
many places" flies in the face of settled jurisprudence in which this Court
carefully made distinctions between (actual) residence and domicile for
election law purposes. In Larena vs. Teves, 33 supra, we stressed:

[T]his court is of the opinion and so holds that a

person who has his own house wherein he lives with
his family in a municipality without having ever had
the intention of abandoning it, and without having
lived either alone or with his family in another
municipality, has his residence in the former
municipality, notwithstanding his having registered
as an elector in the other municipality in question
and having been a candidate for various insular and
provincial positions, stating every time that he is a
resident of the latter municipality.
More significantly, in Faypon vs. Quirino, 34 We explained that:
A citizen may leave the place of his birth to look for
"greener pastures," as the saying goes, to improve
his lot, and that, of course includes study in other
places, practice of his avocation, or engaging in
business. When an election is to be held, the citizen
who left his birthplace to improve his lot may desire
to return to his native town to cast his ballot but for
professional or business reasons, or for any other
reason, he may not absent himself from his
professional or business activities; so there he
registers himself as voter as he has the
qualifications to be one and is not willing to give up
or lose the opportunity to choose the officials who
are to run the government especially in national
elections. Despite such registration, the animus
revertendi to his home, to his domicile or residence
of origin has not forsaken him. This may be the
explanation why the registration of a voter in a place
other than his residence of origin has not been
deemed sufficient to constitute abandonment or loss
of such residence. It finds justification in the natural
desire and longing of every person to return to his
place of birth. This strong feeling of attachment to
the place of one's birth must be overcome by
positive proof of abandonment for another.
From the foregoing, it can be concluded that in its above-cited
statements supporting its proposition that petitioner was ineligible to run
for the position of Representative of the First District of Leyte, the
COMELEC was obviously referring to petitioner's various places of

(actual) residence, not her domicile. In doing so, it not only ignored
settled jurisprudence on residence in election law and the deliberations
of the constitutional commission but also the provisions of the Omnibus
Election Code (B.P. 881). 35
What is undeniable, however, are the following set of facts which
establish the fact of petitioner's domicile, which we lift verbatim from the
COMELEC's Second Division's assailed Resolution: 36
In or about 1938 when respondent was a little over 8
years old, she established her domicile in Tacloban,
Leyte (Tacloban City). She studied in the Holy Infant
Academy in Tacloban from 1938 to 1949 when she
graduated from high school. She pursued her
college studies in St. Paul's College, now Divine
Word University in Tacloban, where she earned her
degree in Education. Thereafter, she taught in the
Leyte Chinese School, still in Tacloban City. In 1952
she went to Manila to work with her cousin, the late
speaker Daniel Z. Romualdez in his office in the
House of Representatives. In 1954, she married exPresident Ferdinand E. Marcos when he was still a
congressman of Ilocos Norte and registered there as
a voter. When her husband was elected Senator of
the Republic in 1959, she and her husband lived
together in San Juan, Rizal where she registered as
a voter. In 1965, when her husband was elected
President of the Republic of the Philippines, she
lived with him in Malacanang Palace and registered
as a voter in San Miguel, Manila.
[I]n February 1986 (she claimed that) she and her
family were abducted and kidnapped to Honolulu,
Hawaii. In November 1991, she came home to
Manila. In 1992, respondent ran for election as
President of the Philippines and filed her Certificate
of Candidacy wherein she indicated that she is a
resident and registered voter of San Juan, Metro
Manila.
Applying the principles discussed to the facts found by COMELEC, what
is inescapable is that petitioner held various residences for different
purposes during the last four decades. None of these purposes
unequivocally point to an intention to abandon her domicile of origin in

Tacloban, Leyte. Moreover, while petitioner was born in Manila, as a

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

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).

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.

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.

In this connection, it cannot be correctly argued that petitioner lost her

domicile of origin by operation of law as a result of her marriage to the
late President Ferdinand E. Marcos in 1952. For there is a clearly
established distinction between the Civil Code concepts of "domicile"
and "residence." 39 The presumption that the wife automatically gains the
husband's domicile by operation of law upon marriage cannot be
inferred from the use of the term "residence" in Article 110 of the Civil
Code because the Civil Code is one area where the two concepts are
well delineated. Dr. Arturo Tolentino, writing on this specific area
explains:

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.

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

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.

Article 110 of the Civil Code provides:

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

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

of 1889 which states:

Art. 110. The husband shall fix the residence of

the family. But the court may exempt the wife from
living with the husband if he should live abroad
unless in the service of the Republic.
A survey of jurisprudence relating to Article 110 or to the concepts of
domicile or residence as they affect the female spouse upon marriage
yields nothing which would suggest that the female spouse automatically
loses her domicile of origin in favor of the husband's choice of residence
upon marriage.

Very significantly, Article 110 of the Civil Code is found under Title V
under the heading: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND
AND WIFE. Immediately preceding Article 110 is Article 109 which
obliges the husband and wife to live together, thus:
Art. 109. The husband and wife are obligated to
live together, observe mutual respect and fidelity and
render mutual help and support.
The duty to live together can only be fulfilled if the husband and wife are
physically together. This takes into account the situations where the
couple has many residences (as in the case of the petitioner). If the
husband has to stay in or transfer to any one of their residences, the

wife should necessarily be with him in order that they may "live
together." Hence, it is illogical to conclude that Art. 110 refers to
"domicile" and not to "residence." Otherwise, we shall be faced with a
situation where the wife is left in the domicile while the husband, for
professional or other reasons, stays in one of their (various) residences.
As Dr. Tolentino further explains:
Residence and Domicile Whether the word
"residence" as used with reference to particular
matters is synonymous with "domicile" is a question
of some difficulty, and the ultimate decision must be
made from a consideration of the purpose and intent
with which the word is used. Sometimes they are
used synonymously, at other times they are
distinguished from one another.
xxx xxx xxx
Residence in the civil law is a material fact, referring
to the physical presence of a person in a place. A
person can have two or more residences, such as a
country residence and a city residence. Residence is
acquired by living in place; on the other hand,
domicile can exist without actually living in the place.
The important thing for domicile is that, once
residence has been established in one place, there
be an intention to stay there permanently, even if
residence is also established in some other
place. 41
In fact, even the matter of a common residence between the husband
and the wife during the marriage is not an iron-clad principle; In cases
applying the Civil Code on the question of a common matrimonial
residence, our jurisprudence has recognized certain situations 42 where
the spouses could not be compelled to live with each other such that the
wife is either allowed to maintain a residence different from that of her
husband or, for obviously practical reasons, revert to her original
domicile (apart from being allowed to opt for a new one). In De la Vina
vs. Villareal 43 this Court held that "[a] married woman may acquire a
residence or domicile separate from that of her husband during the
existence of the marriage where the husband has given cause for
divorce." 44 Note that the Court allowed the wife either to obtain new
residence or to choose a new domicile in such an event. In instances
where the wife actually opts, .under the Civil Code, to live separately

from her husband either by taking new residence or reverting to her

domicile of origin, the Court has held that the wife could not be
compelled to live with her husband on pain of contempt. In Arroyo
vs. Vasques de Arroyo 45 the Court held that:
Upon examination of the authorities, we are
convinced that it is not within the province of the
courts of this country to attempt to compel one of the
spouses to cohabit with, and render conjugal rights
to, the other. Of course where the property rights of
one of the pair are invaded, an action for restitution
of such rights can be maintained. But we are
disinclined to sanction the doctrine that an order,
enforcible (sic) by process of contempt, may be
entered to compel the restitution of the purely
personal right of consortium. At best such an order
can be effective for no other purpose than to compel
the spouses to live under the same roof; and he
experience of those countries where the courts of
justice have assumed to compel the cohabitation of
married people shows that the policy of the practice
is extremely questionable. Thus in England, formerly
the Ecclesiastical Court entertained suits for the
restitution of conjugal rights at the instance of either
husband or wife; and if the facts were found to
warrant it, that court would make a mandatory
decree, enforceable by process of contempt in case
of disobedience, requiring the delinquent party to
live with the other and render conjugal rights. Yet
this practice was sometimes criticized even by the
judges who felt bound to enforce such orders, and
in Weldon v. Weldon (9 P.D. 52), decided in 1883,
Sir James Hannen, President in the Probate,
Divorce and Admiralty Division of the High Court of
Justice, expressed his regret that the English law on
the subject was not the same as that which
prevailed in Scotland, where a decree of adherence,
equivalent to the decree for the restitution of
conjugal rights in England, could be obtained by the
injured spouse, but could not be enforced by
imprisonment. Accordingly, in obedience to the
growing sentiment against the practice, the
Matrimonial Causes Act (1884) abolished the
remedy of imprisonment; though a decree for the
restitution of conjugal rights can still be procured,

and in case of disobedience may serve in

appropriate cases as the basis of an order for the
periodical payment of a stipend in the character of
alimony.
In the voluminous jurisprudence of the United
States, only one court, so far as we can discover,
has ever attempted to make a preemptory order
requiring one of the spouses to live with the other;
and that was in a case where a wife was ordered to
follow and live with her husband, who had changed
his domicile to the City of New Orleans. The decision
referred to (Bahn v. Darby, 36 La. Ann., 70) was
based on a provision of the Civil Code of Louisiana
similar to article 56 of the Spanish Civil Code. It was
decided many years ago, and the doctrine evidently
has not been fruitful even in the State of Louisiana.
In other states of the American Union the idea of
enforcing cohabitation by process of contempt is
rejected. (21 Cyc., 1148).
In a decision of January 2, 1909, the Supreme Court
of Spain appears to have affirmed an order of the
Audiencia Territorial de Valladolid requiring a wife to
return to the marital domicile, and in the alternative,
upon her failure to do so, to make a particular
disposition of certain money and effects then in her
possession and to deliver to her husband, as
administrator of the ganancial property, all income,
rents, and interest which might accrue to her from
the property which she had brought to the marriage.
(113 Jur. Civ., pp. 1, 11) But it does not appear that
this order for the return of the wife to the marital
domicile was sanctioned by any other penalty than
the consequences that would be visited upon her in
respect to the use and control of her property; and it
does not appear that her disobedience to that order
would necessarily have been followed by
imprisonment for contempt.
Parenthetically when Petitioner was married to then Congressman
Marcos, in 1954, petitioner was obliged by virtue of Article 110 of the
Civil Code to follow her husband's actual place of residence fixed by
him. The problem here is that at that time, Mr. Marcos had several

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

discussion pointing out specific situations where the female spouse

either reverts to her domicile of origin or chooses a new one during the
subsistence of the marriage, it would be highly illogical for us to assume
that she cannot regain her original domicile upon the death of her
husband absent a positive act of selecting a new one where situations
exist within the subsistence of the marriage itself where the wife gains a
domicile different from her husband.
In the light of all the principles relating to residence and domicile
enunciated by this court up to this point, we are persuaded that the facts
established by the parties weigh heavily in favor of a conclusion
supporting petitioner's claim of legal residence or domicile in the First
District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC had already
lapsed considering that the assailed resolutions were rendered on April
24, 1995, fourteen (14) days before the election in violation of Section
78 of the Omnibus Election Code. 48 Moreover, petitioner contends that it
is the House of Representatives Electoral Tribunal and not the
COMELEC which has jurisdiction over the election of members of the
House of Representatives in accordance with Article VI Sec. 17 of the
Constitution. This is untenable.
It is a settled doctrine that a statute requiring rendition of judgment within
a specified time is generally construed to be merely directory, 49 "so that
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
vs. Cruz held that: 51
The difference between a mandatory and directory
provision is often determined on grounds of
expediency, the reason being that less injury results
to the general public by disregarding than enforcing
the letter of the law.
In Trapp v. Mc Cormick, a case calling for the
interpretation of a statute containing a limitation of
thirty (30) days within which a decree may be
entered without the consent of counsel, it was held

that "the statutory provisions which may be thus

departed from with impunity, without affecting the
validity of statutory proceedings, are usually those
which relate to the mode or time of doing that which
is essential to effect the aim and purpose of the
Legislature or some incident of the essential act."
Thus, in said case, the statute under examination
was construed merely to be directory.
The mischief in petitioner's contending that the COMELEC should have
abstained from rendering a decision after the period stated in the
Omnibus Election Code because it lacked jurisdiction, lies in the fact that
our courts and other quasi-judicial bodies would then refuse to render
judgments merely on the ground of having failed to reach a decision
within a given or prescribed period.
In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in
relation to Section 78 of B.P. 881, 52 it is evident that the respondent
Commission does not lose jurisdiction to hear and decide a pending
disqualification case under Section 78 of B.P. 881 even after the
elections.
As to the House of Representatives Electoral Tribunal's supposed
assumption of jurisdiction over the issue of petitioner's qualifications
after the May 8, 1995 elections, suffice it to say that HRET's jurisdiction
as the sole judge of all contests relating to the elections, returns and
qualifications of members of Congress begins only after a candidate has
become a member of the House of Representatives. 53 Petitioner not
being a member of the House of Representatives, it is obvious that the
HRET at this point has no jurisdiction over the question.
It would be an abdication of many of the ideals enshrined in the 1987
Constitution for us to either to ignore or deliberately make distinctions in
law solely on the basis of the personality of a petitioner in a case.
Obviously a distinction was made on such a ground here. Surely, many
established principles of law, even of election laws were flouted for the
sake perpetuating power during the pre-EDSA regime. We renege on
these sacred ideals, including the meaning and spirit of EDSA ourselves
bending established principles of principles of law to deny an individual
what he or she justly deserves in law. Moreover, in doing so, we
condemn ourselves to repeat the mistakes of the past.
WHEREFORE, having determined that petitioner possesses the
necessary residence qualifications to run for a seat in the House of

Representatives in the First District of Leyte, the COMELEC's

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

(8) RESIDENCE IN THE CONSTITUENCY WHERE

I SEEK TO BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION: ______ Years
and 10 Months.
xxx xxx xxx

SO ORDERED.
G.R. No. 120265 September 18, 1995
AGAPITO A. AQUINO, petitioner,
vs.
COMMISSION ON ELECTIONS, MOVE MAKATI, MATEO BEDON and
JUANITO ICARO, respondents.

KAPUNAN, J.:
The sanctity of the people's will must be observed at all times if our
nascent democracy is to be preserved. In any challenge having the
effect of reversing a democratic choice, expressed through the ballot,
this Court should be ever so vigilant in finding solutions which would
give effect to the will of the majority, for sound public policy dictates that
all elective offices are filled by those who have received the highest
number of votes cast in an election. When a challenge to a winning
candidate's qualifications however becomes inevitable, the ineligibility
ought to be so noxious to the Constitution that giving effect to the
apparent will of the people would ultimately do harm to our democratic
institutions.
On March 20, 1995, petitioner Agapito A. Aquino filed his Certificate of
Candidacy for the position of Representative for the new Second
Legislative District of Makati City. Among others, Aquino provided the
following information in his certificate of candidacy, viz:.
(7) RESIDENCE (Complete Address): 284
AMAPOLA COR. ADALLA STS., PALM VILLAGE,
MAKATI.
xxx xxx xxx

THAT I AM ELIGIBLE for said Office; That I will

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

After hearing of the petition for disqualification, the Second Division of

the COMELEC promulgated a Resolution dated May 6, 1995,
the decretal portion of which reads:
WHEREFORE, in view of the foregoing, this
Commission (Second Division) RESOLVES to
DISMISS the instant: petition for Disqualification
against respondent AGAPITO AQUINO and declares
him ELIGIBLE to run for the Office of Representative
in the Second Legislative District of Makati City.
SO ORDERED. 9
On May 7, 1995, Move Makati and Mateo Bedon filed a Motion for
Reconsideration of the May 6, 1995 resolution with the COMELEC en
banc.
Meanwhile, on May 8, 1995, elections were held. In Makati City where
three (3) candidates vied for the congressional seat in the Second
District, petitioner garnered thirty eight thousand five hundred forty
seven (38,547) votes as against another candidate, Agusto Syjuco, who
obtained thirty five thousand nine hundred ten (35,910) votes. 10
On May 10, 1995, private respondents Move Makati and Bedon filed an
Urgent Motion Ad Cautelum to Suspend Proclamation of petitioner.
Thereafter, they filed an Omnibus Motion for Reconsideration of the
COMELEC's Second Division resolution dated May 6, 1995 and a 2nd
Urgent Motion Ad Cautelum to Suspend Proclamation of petitioner.
On May 15, 1995, COMELEC en banc issued an Order suspending
petitioner's proclamation. The dispositive portion of the order reads:
WHEREFORE, pursuant to the provisions of Section
6 of Republic Act No. 6646, the Board of Canvassers
of the City of Makati is hereby directed to complete
the canvassing of election returns of the Second
District of Makati, but to suspend the proclamation of
respondent Agapito A. Aquino should he obtain the
winning number of votes for the position of
Representative of the Second District of the City of
Makati, until the motion for reconsideration filed by
the petitioners on May 7, 1995, shall have been
resolved by the Commission.

The Executive Director, this Commission, is directed

to cause the immediate implementation of this
Order. The Clerk of Court of the Commission is
likewise directed to inform the parties by the fastest
means available of this Order, and to calendar the
hearing of the Motion for Reconsideration on May
17, 1995, at 10:00 in the morning, PICC Press
Center, Pasay City.

declared ineligible and thus disqualified as a

candidate for the Office of Representative of the
Second Legislative District of Makati City in the May
8, 1995 elections, for lack of the constitutional
qualification of residence. Consequently, the order of
suspension of proclamation of the respondent
should he obtain the winning number of votes,
issued by this Commission on May 15, 1995 is now
made permanent.

SO ORDERED. 11
On May 16, 1995, petitioner filed his Comment/Opposition with urgent
motion to lift order of suspension of proclamation.
On June 1, 1995, petitioner filed a "Motion to File Supplemental
Memorandum and Motion to Resolve Urgent Motion to Resolve Motion
to Lift Suspension of Proclamation" wherein he manifested his intention
to raise, among others, the issue of whether of not the determination of
the qualifications of petitioner after the elections is lodged exclusively in
the House of Representatives Electoral Tribunal pursuant to Section 17,
Article VI of the 1987 Constitution.
Resolving petitioner's motion to lift suspension of his proclamation, the
COMELEC en banc issued an Order on June 2, 1995, the decretal
portion thereof residing:
Pursuant to the said provisions and considering the
attendant circumstances of the case, the
Commission RESOLVED to proceed with the
promulgation but to suspend its rules, to accept the
filing of the aforesaid motion, and to allow the
parties to be heard thereon because the issue of
jurisdiction now before the Commission has to be
studied with more reflection and judiciousness. 12
On the same day, June 2, 1995, the COMELEC en banc issued a
Resolution reversing the resolution of the Second Division dated May 6,
1995. The fallo reads as follows:
WHEREFORE, in view of the foregoing, petitioners'
Motion for Reconsideration of the Resolution of the
Second Division, promulgated on May 6, 1995, is
GRANTED. Respondent Agapito A. Aquino is

Upon the finality of this Resolution, the Board of

Canvassers of the City of Makati shall immediately
reconvene and, on the basis of the completed
canvass of election returns, determine the winner
out of the remaining qualified candidates, who shall
be immediately be proclaimed.
SO ORDERED. 13
Hence, the instant Petition for Certiorari 14 assailing the orders dated
May 15, 1995 and June 2, 1995, as well as the resolution dated June 2,
1995 issued by the COMELEC en banc. Petitioner's raises the following
errors for consideration, to wit:
A
THE COMELEC HAS NO JURISDICTION TO
DETERMINE AND ADJUDGE THE
DISQUALIFICATION ISSUE INVOLVING
CONGRESSIONAL CANDIDATES AFTER THE
MAY 8, 1995 ELECTIONS, SUCH
DETERMINATION BEING RESERVED TO AND
LODGE EXCLUSIVELY WITH THE HOUSE OF
REPRESENTATIVE ELECTORAL TRIBUNAL
B
ASSUMING ARGUENDO THAT THE COMELEC
HAS JURISDICTION, SAID JURISDICTION
CEASED IN THE INSTANT CASE AFTER THE
ELECTIONS, AND THE REMEDY/IES AVAILABLE
TO THE ADVERSE PARTIES LIE/S IN ANOTHER
FORUM WHICH, IT IS SUBMITTED, IS THE HRET

CONSISTENT WITH SECTION 17, ARTICLE VI OF

THE 1987 CONSTITUTION
C
THE COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION WHEN IT PROCEEDED TO
PROMULGATE ITS QUESTIONED DECISION
(ANNEX "C", PETITION) DESPITE IT OWN
RECOGNITION THAT A THRESHOLD ISSUE OF
JURISDICTION HAS TO BE JUDICIOUSLY
REVIEWED AGAIN, ASSUMING ARGUENDO THAT
THE COMELEC HAS JURISDICTION, THE
COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION, AND SERIOUS ERROR IN
DIRECTING WITHOUT NOTICE THE
SUSPENSION OF THE PROCLAMATION OF THE
PETITIONER AS THE WINNING
CONGRESSIONAL CANDIDATE AND DESPITE
THE MINISTERIAL NATURE OF SUCH DUTY TO
PROCLAIM (PENDING THE FINALITY OF THE
DISQUALIFICATION CASE AGAINST THE
PETITIONER) IF ONLY NOT TO THWART THE
PEOPLE'S WILL.
D
THE COMELEC'S FINDING OF NONCOMPLIANCE WITH THE RESIDENCY
REQUIREMENT OF ONE YEAR AGAINST THE
PETITIONER IS CONTRARY TO EVIDENCE AND
TO APPLICABLE LAWS AND JURISPRUDENCE.
E
IN ANY CASE, THE COMELEC CRITICALLY
ERRED IN FAILING TO APPRECIATE THE LEGAL
IMPOSSIBILITY OF ENFORCING THE ONE YEAR
RESIDENCY REQUIREMENT OF
CONGRESSIONAL CANDIDATES IN NEWLY
CREATED POLITICAL DISTRICTS WHICH WERE
ONLY EXISTING FOR LESS THAN A YEAR AT THE
TIME OF THE ELECTION AND BARELY FOUR

MONTHS IN THE CASE OF PETITIONER'S

DISTRICT IN MAKATI OF CONGRESSIONAL.
F
THE COMELEC COMMITTED SERIOUS ERROR
AMOUNTING TO LACK OF JURISDICTION WHEN
IT ORDERED THE BOARD OF CANVASSERS TO
"DETERMINE AND PROCLAIM THE WINNER OUT
OF THE REMAINING QUALIFIED CANDIDATES"
AFTER THE ERRONEOUS DISQUALIFICATION
OF YOUR PETITIONER IN THAT SUCH
DIRECTIVE IS IN TOTAL DISREGARD OF THE
WELL SETTLED DOCTRINE THAT A SECOND
PLACE CANDIDATE OR PERSON WHO WAS
REPUDIATED BY THE ELECTORATE IS A LOSER
AND CANNOT BE PROCLAIMED AS SUBSTITUTE
WINNER. 15
I
In his first three assignments of error, petitioner vigorously contends that
after the May 8, 1995 elections, the COMELEC lost its jurisdiction over
the question of petitioner's qualifications to run for member of the House
of Representatives. He claims that jurisdiction over the petition for
disqualification is exclusively lodged with the House of Representatives
Electoral Tribunal (HRET). Given the yet unresolved question of
jurisdiction, petitioner avers that the COMELEC committed serious error
and grave abuse of discretion in directing the suspension of his
proclamation as the winning candidate in the Second Congressional
District of Makati City. We disagree.
Petitioner conveniently confuses the distinction between an
unproclaimed candidate to the House of Representatives and a member
of the same. Obtaining the highest number of votes in an election does
not automatically vest the position in the winning candidate. Section 17
of Article VI of the 1987 Constitution reads:
The Senate and the House of Representatives shall
have an Electoral Tribunal which shall be the sole
judge of all contests relating to the election, returns
and qualifications of their respective Members.

Under the above-stated provision, the electoral tribunal clearly assumes

jurisdiction over all contests relative to the election, returns and
qualifications of candidates for either the Senate or the House only when
the latter becomemembers of either the Senate or the House of
Representatives. A candidate who has not been proclaimed 16 and who
has not taken his oath of office cannot be said to be a member of the
House of Representatives subject to Section. 17 of the Constitution.
While the proclamation of a winning candidate in an election is
ministerial, B.P. 881 in conjunction with Sec 6 of R.A. 6646 allows
suspension of proclamation under circumstances mentioned therein.
Thus, petitioner's contention that "after the conduct of the election and
(petitioner) has been established the winner of the electoral exercise
from the moment of election, the COMELEC is automatically divested of
authority to pass upon the question of qualification" finds no basis,
because even after the elections the COMELEC is empowered by
Section 6 (in relation to Section 7) of R.A. 6646 to continue to hear and
decide questions relating to qualifications of candidates Section 6 states:
Sec. 6. Effect of Disqualification Case. Any
candidate, who has been declared by final judgment
to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted
for and receives the winning number of votes in such
election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order
the suspension of the proclamation of such
candidate whenever the evidence of guilt is strong.
Under the above-quoted provision, not only is a disqualification case
against a candidate allowed to continue after the election (and does not
oust the COMELEC of its jurisdiction), but his obtaining the highest
number of votes will not result in the suspension or termination of the
proceedings against him when the evidence of guilt is strong. While the
phrase "when the evidence of guilt is strong" seems to suggest that the
provisions of Section 6 ought to be applicable only to disqualification
cases under Section 68 of the Omnibus Election Code, Section 7 of R.A.
6646 allows the application of the provisions of Section 6 to cases
involving disqualification based on ineligibility under Section 78 of B.P.
881. Section 7 states:

Sec. 7. Petition to Deny Due Course or to Cancel a

Certificate of Candidacy. The procedure
hereinabove provided shall apply to petition to deny
due course to or cancel a certificate of candidacy
based on Sec. 78 of Batas Pambansa 881.
II
We agree with COMELEC's contention that in order that petitioner could
qualify as a candidate for Representative of the Second District of
Makati City the latter "must prove that he has established not just
residence but domicileof choice. 17
The Constitution requires that a person seeking election to the House of
Representatives should be a resident of the district in which he seeks
election for a period of not less than one (l) year prior to the
elections. 18 Residence, for election law purposes, has a settled meaning
in our jurisdiction.
In Co v. Electoral Tribunal of the House of Representatives 19 this Court
held that the term "residence" has always been understood as
synonymous with "domicile" not only under the previous Constitutions
but also under the 1987 Constitution. The Court there held: 20
The deliberations of the Constitutional Commission
reveal that the meaning of residence vis-a-vis the
qualifications of a candidate for Congress continues
to remain the same as that of domicile, to wit:
Mr. Nolledo: With respect to
Section 5, I remember that in the
1971 Constitutional Convention,
there was an attempt to require
residence in the place not less
than one year immediately
preceding the day of elections.
So my question is: What is the
Committee's concept of domicile
or constructive residence?
Mr. Davide: Madame President,
insofar as the regular members
of the National Assembly are

concerned, the proposed section

merely provides, among others,
and a resident thereof', that is, in
the district, for a period of not
less than one year preceding the
day of the election. This was in
effect lifted from the 1973
Constitution, the interpretation
given to it was
domicile (emphasis ours)
Records of the 1987
Constitutional Convention, Vol.
II, July 22, 1986, p. 87).
xxx xxx xxx
Mrs. Rosario Braid: The next
question is on section 7, page 2.
I think Commissioner Nolledo
has raised the same point that
"resident" has been interpreted
at times as a matter of intention
rather than actual residence.
Mr. De Los Reyes: Domicile.
Ms. Rosario Braid: Yes,
So, would the gentlemen
consider at the proper time to go
back to actual residence rather
than mere intention to reside?
Mr. De los Reyes: But We might
encounter some difficulty
especially considering that the
provision in the Constitution in
the Article on Suffrage says that
Filipinos living abroad may vote
as enacted by law. So, we have
to stick to the original concept
that it should be by domicile and
not physical and actual
residence. (Records of the 1987

Constitutional Commission, Vol.

II, July 22, 1986, p. 110).
The framers of the Constitution adhered to the
earlier definition given to the word "residence" which
regarded it as having the same meaning
as domicile.
Clearly, the place "where a party actually or constructively has his
permanent home," 21 where he, no matter where he may be found at any
given time, eventually intends to return and remain, i.e., his domicile, is
that to which the Constitution refers when it speaks of residence for the
purposes of election law. The manifest purpose of this deviation from the
usual conceptions of residency in law as explained in Gallego
vs. Vera at 22 is "to exclude strangers or newcomers unfamiliar with the
conditions and needs of the community" from taking advantage of
favorable circumstances existing in that community for electoral gain.
While there is nothing wrong with the practice of establishing residence
in a given area for meeting election law requirements, this nonetheless
defeats the essence of representation, which is to place through the
assent of voters those most cognizant and sensitive to the needs of a
particular district, if a candidate falls short of the period of residency
mandated by law for him to qualify. That purpose could be obviously
best met by individuals who have either had actual residence in the area
for a given period or who have been domiciled in the same area either
by origin or by choice. It would, therefore, be imperative for this Court to
inquire into the threshold question as to whether or not petitioner
actually was a resident for a period of one year in the area now
encompassed by the Second Legislative District of Makati at the time of
his election or whether or not he was domiciled in the same.
As found by the COMELEC en banc petitioner in his Certificate of
Candidacy for the May 11, 1992 elections, indicated not only that he was
a resident of San Jose, Concepcion, Tarlac in 1992 but that he was
a resident of the same for 52 years immediately preceding that
election. 23 At the time, his certificate indicated that he was also a
registered voter of the same district. 24 His birth certificate places
Concepcion, Tarlac as the birthplace of both of his parents Benigno and
Aurora. 25 Thus, from data furnished by petitioner himself to the
COMELEC at various times during his political career, what stands
consistently clear and unassailable is that this domicile of origin of
record up to the time of filing of his most recent certificate of candidacy
for the 1995 elections was Concepcion, Tarlac.

Petitioner's alleged connection with the Second District of Makati City is

an alleged lease agreement of condominium unit in the area. As the
COMELEC, in its disputed Resolution noted:
The intention not to establish a permanent home in
Makati City is evident in his leasing a condominium
unit instead of buying one. While a lease contract
maybe indicative of respondent's intention to reside
in Makati City it does not engender the kind of
permanency required to prove abandonment of
one's original domicile especially since, by its terms,
it is only for a period of two (2) years, and
respondent Aquino himself testified that his intention
was really for only one (l) year because he has other
"residences" in Manila or Quezon City. 26
While property ownership is not and should never be an indicia of the
right to vote or to be voted upon, the fact that petitioner himself claims
that he has other residences in Metro Manila coupled with the short
length of time he claims to be a resident of the condominium unit in
Makati (and the fact, of his stated domicile in Tarlac) "indicate that the
sole purpose of (petitioner) in transferring his physical residence" 27 is
not to acquire's new residence ordomicile "but only to qualify as a
candidate for Representative of the Second District of Makati
City." 28 The absence of clear and positive proof showing a successful
abandonment of domicile under the conditions stated above, the lack of
identification sentimental, actual or otherwise with the area, and
the suspicious circumstances under which the lease agreement was
effected all belie petitioner's claim of residency for the period required by
the Constitution, in the Second District of Makati. As the COMELEC en
banc emphatically pointed out:
[T]he lease agreement was executed mainly to
support the one year residence requirement as a
qualification for a candidate of Representative, by
establishing a commencement date of his residence.
If a perfectly valid lease agreement cannot, by itself
establish; a domicile of choice, this particular lease
agreement cannot do better. 29
Moreover, his assertion that he has transferred his domicile from Tarlac
to Makati is a bare assertion which is hardly supported by the facts in
the case at bench. Domicile of origin is not easily lost. To successfully
effect a change of domicile, petitioner must prove an actual removal or

an actual change of domicile; a bona fide intention of abandoning the

former place of residence and establishing a new one and definite acts
which correspond with the purpose. 30 These requirements are hardly
met by the evidence adduced in support of petitioner's claims of a
change ofdomicile from Tarlac to the Second District of Makati. In the
absence of clear and positive proof, the domicile of origin be deemed to
continue requirements are hardly met by the evidence adduced in
support of petitioner's claims of a change of domicile from Tarlac to the
Second District of Makati. In the absence of clear and positive proof,
the domicile of origin should be deemed to continue.
Finally, petitioner's submission that it would be legally impossible to
impose the one year residency requirement in a newly created political
district is specious and lacks basis in logic. A new political district is not
created out of thin air. It is carved out from part of a real and existing
geographic area, in this case the old Municipality of Makati. That people
actually lived or were domiciled in the area encompassed by the new
Second District cannot be denied. Modern-day carpetbaggers cannot be
allowed take advantage of the creation of new political districts by
suddenly transplanting themselves in such new districts, prejudicing
their genuine residents in the process of taking advantage of existing
conditions in these areas. It will be noted, as COMELEC did in its
assailed resolution, that petitioner was disqualified from running in the
Senate because of the constitutional two-term limit, and had to shop
around for a place where he could run for public office. Nothing wrong
with that, but he must first prove with reasonable certainty that he has
effected a change of residence for election law purposes for the period
required by law. This he has not effectively done.
III
The next issue here is whether or not the COMELEC erred in issuing it
Order instructing the Board of Canvassers of Makati City to proclaim as
winner the candidate receiving the next higher number of votes. The
answer must be in the negative.
To contend that Syjuco should be proclaimed because he was the "first"
among the qualified candidates in the May 8, 1995 elections is to
misconstrue the nature of the democratic electoral process and the
sociological and psychological underpinnings behind voters'
preferences. The result suggested by private respondent would lead not
only to our reversing the doctrines firmly entrenched in the two cases
of Labo vs. Comelec 31 but also to a massive disenfranchisement of the
thousands of voters who cast their vote in favor of a candidate they

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

majority or plurality of votes is proclaimed a winner

and imposed as the representative of a constituency,
the majority of which have positively declared
through their ballots that they do not choose him.
Sound policy dictates that public elective offices are
filled by those who have received the highest
number of votes cast in the election for that office,
and it is fundamental idea in all republican forms of
government that no one can be declared elected and
no measure can be declared carried unless he or it
receives a majority or plurality of the legal votes cast
in the elections. (20 Corpus Juris 2nd, S 243, p.
676.)
However, in Santos v. Comelec 35 we made a turnabout from our
previous ruling in Geronimo v. Ramos and pronounced that "votes cast
for a disqualified candidate fall within the category of invalid or nonexistent votes because a disqualified candidate is no candidate at all in
the eyes of the law," reverting to our earlier ruling in Ticson v. Comelec.
In the more recent cases of Labo, Jr. v. Comelec 36 Abella
v. Comelec; 37 and Benito v. Comelec, 38 this Court reiterated and upheld
the ruling in Topacio v. Paredes and Geronimo v. Ramos to the effect
that the ineligibility of a candidate receiving the next higher number of
votes to be declared elected, and that a minority or defeated candidate
cannot be declared elected to the office. In these cases, we put
emphasis on our pronouncement in Geronimo v. Ramos that:
The fact that a candidate who obtained the highest
number of votes is later declared to be disqualified
or not eligible for the office to which he was elected
does not necessarily entitle the candidate who
obtained the second highest number of votes to be
declared the winner of the elective office. The votes
cast for a dead, disqualified, or non-eligible person
may be valid to vote the winner into office or
maintain him there. However, in the absence of a
statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast
in sincere belief that candidate was alive, qualified,
or eligible; they should not be treated as stray, void
or meaningless.

Synthesizing these rulings we declared in the latest case of Labo,

Jr. v. COMELEC that: 39
While Ortega may have garnered the second
highest number of votes for the office of city mayor,
the fact remains that he was not the choice of the
sovereign will. Petitioner Labo was overwhelmingly
voted by the electorate for the office of mayor in the
belief that he was then qualified to serve the people
of Baguio City and his subsequent disqualification
does not make respondent Ortega the mayor-elect.
This is the import of the recent case of Abella
v. Comelec (201 SCRA 253 [1991]), wherein we
held that:
While it is true that SPC No. 88546 was originally a petition to
deny due course to the
certificate of candidacy of
Larrazabal and was filed before
Larrazabal could be proclaimed
the fact remains that the local
elections of Feb. 1, 1988 in the
province of Leyte proceeded
with Larrazabal considered as a
bona fide candidate. The voters
of the province voted for her in
the sincere belief that she was a
qualified candidate for the
position of governor. Her votes
was counted and she obtained
the highest number of votes. The
net effect is that petitioner lost in
the election. He was repudiated
by the electorate. . . What
matters is that in the event a
candidate for an elected position
who is voted for and who
obtains the highest number of
votes is disqualified for not
possessing the eligibility,
requirements at the time of the
election as provided by law, the
candidate who obtains the
second highest number of votes

for the same position cannot

assume the vacated position.
(Emphasis supplied).
Our ruling in Abella applies squarely to the case at
bar and we see no compelling reason to depart
therefrom. Like Abella, petitioner Ortega lost in the
election. He was repudiated by the electorate. He
was obviously not the choice of the people of Baguio
City.
Thus, while respondent Ortega (G.R. No. 105111)
originally filed a disqualification case with the
Comelec (docketed as SPA-92-029) seeking to deny
due course to petitioner's (Labo's) candidacy, the
same did not deter the people of Baguio City from
voting for petitioner Labo, who, by then, was allowed
by the respondent Comelec to be voted upon, the
resolution for his disqualification having yet to attain
the degree of finality (Sec. 78, Omnibus Election
Code).
And in the earlier case of Labo v. Comelec. (supra),
We held:
Finally, there is the question of
whether or not the private
respondent, who filed the quo
warranto petition, can replace
the petitioner as mayor. He
cannot. The simple reason is
that as he obtained only the
second highest number of votes
in the election, he was obviously
not the choice of the people of
Baguio City.
The latest ruling of the Court in
this issue is Santos
v. Commission on Election, (137
SCRA 740) decided in 1985. In
that case, the candidate who
placed second was proclaimed
elected after the votes for his

winning rival, who was

disqualified as a turncoat and
considered a non-candidate,
were all disregarded as stray. In
effect, the second placer won by
default. That decision was
supported by eight members of
the Court then
(Cuevas J., ponente, with
Makasiar, Concepcion, Jr.,
Escolin, Relova, De la Fuente,
Alampay, and Aquino, JJ.,
concurring) with three dissenting
(Teehankee, actingC.J., Abad
Santos and Melencio-Herrera)
and another two reserving their
votes (Plana and Gutierrez, Jr.).
One was on official leave
(Fernando, C.J.)
Re-examining that decision, the Court finds, and so
holds, that it should be reversed in favor of the
earlier case of Geronimo v. Santos (136 SCRA 435),
which represents the more logical and democratic
rule. That case, which reiterated the doctrine first
announced in 1912 in Topacio vs.Paredes (23 Phil.
238) was supported by ten members of the
Court. . . .
The rule, therefore, is: the ineligibility of a candidate
receiving majority votes does not entitle the eligible
candidate receiving the next highest number of votes
to be declared elected. A minority or defeated
candidate cannot be deemed elected to the office.
Indeed, this has been the rule in the United States
since 1849 (State ex rel. Dunning v. Giles, 52 Am.
Dec. 149).
It is therefore incorrect to argue that since a
candidate has been disqualified, the votes intended
for the disqualified candidate should, in effect, be
considered null and void. This would amount to
disenfranchising the electorate in whom, sovereignty

resides. At the risk of being repetitious, the people of

Baguio City opted to elect petitioner Labo bona
fide without any intention to missapply their
franchise, and in the honest belief that Labo was
then qualified to be the person to whom they would
entrust the exercise of the powers of the
government. Unfortunately, petitioner Labo turned
out to be disqualified and cannot assume the office.
Whether or not the candidate whom the majority
voted for can or cannot be installed, under no
circumstances can a minority or defeated candidate
be deemed elected to the office. Surely, the 12,602
votes cast for petitioner Ortega is not a larger
number than the 27,471 votes cast for petitioner
Labo (as certified by the Election Registrar of Baguio
City; rollo, p. 109; G.R. No. 105111).

respondent commission's finding that petitioner lacks the one year

residence in the district mandated by the 1987 Constitution. A
democratic government is necessarily a government of laws. In a
republican government those laws are themselves ordained by the
people. Through their representatives, they dictate the qualifications
necessary for service in government positions. And as petitioner clearly
lacks one of the essential qualifications for running for membership in
the House of Representatives, not even the will of a majority or plurality
of the voters of the Second District of Makati City would substitute for a
requirement mandated by the fundamental law itself.
WHEREFORE, premises considered, the instant petition is hereby
DISMISSED. Our Order restraining respondent COMELEC from
proclaiming the candidate garnering the next highest number of votes in
the congressional elections for the Second District of Makati City is
made PERMANENT.

An event in this decade, which future generations would likely come to

know simply as the "EDSA People's Power Revolution of 1986," has
dramatically changed the course of our nation's history. So, too, not a
few of our countrymen have by it been left alone in their own personal
lives. One such case is that of the petitioner in this special civil action
for certiorari.
The petitioner is Philip Romualdez, a natural born citizen of the
Philippines, the son of the former Governor of Leyte, Benjamin "Kokoy"
Romualdez, and nephew of the then First Lady Imelda Marcos.
Sometime in the early part of 1980, the petitioner, in consonance with
his decision to establish his legal residence at Barangay Malbog, Tolosa,
Leyte, 1 caused the construction of his residential house therein. He soon
thereafter also served as Barangay Captain of the place. In the 1984
Batasan Election and 1986 "snap" Presidential Election, Romualdez
acted as the Campaign Manager of the Kilusang Bagong Lipunan (KBL)
in Leyte where he voted. 2

SO ORDERED.
This, it bears repeating, expresses the more logical and democratic
view. We cannot, in another shift of the pendulum, subscribe to the
contention that the runner-up in an election in which the winner has
been disqualified is actually the winner among the remaining qualified
candidates because this clearly represents a minority view supported
only by a scattered number of obscure American state and English court
decisions. 40 These decisions neglect the possibility that the runner-up,
though obviously qualified, could receive votes so measly and
insignificant in number that the votes they receive would be tantamount
to rejection. Theoretically, the "second placer" could receive just one
vote. In such a case, it is absurd to proclaim the totally repudiated
candidate as the voters' "choice." Moreover, even in instances where the
votes received by the second placer may not be considered numerically
insignificant, voters preferences are nonetheless so volatile and
unpredictable that the result among qualified candidates, should the
equation change because of the disqualification of an ineligible
candidate, would not be self-evident. Absence of the apparent though
ineligible winner among the choices could lead to a shifting of votes to
candidates other than the second placer. By any mathematical
formulation, the runner-up in an election cannot be construed to have
obtained a majority or plurality of votes cast where an "ineligible"
candidate has garnered either a majority or plurality of the votes.
In fine, we are left with no choice but to affirm the COMELEC's
conclusion declaring herein petitioner ineligible for the elective position
of Representative of Makati City's Second District on the basis of

Regalado, Melo, Puno and Hermosisima, Jr., JJ., concur.

Feliciano, J., is on leave.

G.R. No. 104960 September 14, 1993

PHILIP G. ROMUALDEZ, petitioner,
vs.
REGIONAL TRIAL COURT, BRANCH 7, TACLOBAN CITY, DONATO
ADVINCULA, BOARD OF ELECTION INSPECTORS, PRECINCT No.
9, MALBOG, TOLOSA, LEYTE, and the MUNICIPAL REGISTRAR
COMELEC, TOLOSA, LEYTE, respondents.
Otilia Dimayuga-Molo for petitioner.
The Solicitor General for respondents.

VITUG, J.:

When the eventful days from the 21st to the 24th of February, 1986,
came or were about to come to a close, some relatives and associates
of the deposed President, fearing for their personal safety, whether
founded or not, "fled" the country. Petitioner Romualdez, for one,
together with his immediate family, left the Philippines and sought
"asylum" in the United States which the United States (U.S.) government
granted. 3 While abroad, he took special studies on the development of
Leyte-Samar and international business finance. 4
In the early part of 1987, Romualdez attempted to come back to the
Philippines to run for a congressional seat in Leyte. On 23 March 1987,
he finally decided to book a flight back to the Philippines but the flight
was somehow aborted. 5
On 25 September 1991, Romualdez received a letter from Mr. Charles
Cobb, District Director of the U.S. Immigration and Naturalization
Service, informing him that he should depart from the U.S. at his
expense on or before 23 August 1992, thus:
. . . Failure to depart on or before the specified date
may result in the withdrawal of voluntary departure
and action being taken to effect your deportation. In
accordance with a decision made to your case, you
are required to depart from the United States at your
expense on or before 23 August 1992. 6

Upon receipt of the letter, Romualdez departed from the U.S. for the
Philippines, arriving on December 1991 apparently without any
government document. 7
When Romualdez arrived in the Philippines, he did not delay his return
to his residence at Malbog, Tolosa, Leyte. During the registration of
voters conducted by the Commission on Election ("COMELEC") on 01
February 1992 for the Synchronized National and Local Election
scheduled for 11 May 1992, petitioner registered himself anew as a
voter at Precinct No. 9 of Malbog, Tolosa, Leyte. The chairman of the
Board of Election Inspectors, who had known Romualdez to be a
resident of the place and, in fact, an elected Barangay Chairman of
Malbog in 1982, allowed him to be registered.
Romualdez's registration, however, was not to be unquestioned. On 21
February 1992, herein private respondent Donato Advincula
("Advincula") filed a petition with the Municipal Trial Court of Tolosa,
Leyte, praying that Romualdez be excluded from the list of voters in
Precinct No. 9 of Malbog, Tolosa, Leyte, under BP 881 and RA
7166. 8 Advincula alleged that Romualdez was a resident of
Massachusetts, U.S.A.; that his profession and occupation was in the
U.S.A.; that he had just recently arrived in the Philippines; and that he
did not have the required one-year residence in the Philippines and the
six-month residence in Tolosa to qualify him to register as a voter in
Barangay Malbog, Tolosa, Leyte. 9
On 25 February 1992, Romualdez filed an answer, contending that he
has been a resident of Tolosa, Leyte, since the early 1980's, and that he
has not abandoned his said residence by his physical absence
therefrom during the period from 1986 up to the third week of December
1991. 10
After due hearing, the Municipal Court of Tolosa, Leyte rendered a
decision 11 on 28 February 1992, the dispositive portion of which reads:
WHEREFORE PREMISES CONSIDERED, the court
finds the respondent to be a resident of Brgy.
Malbog, Tolosa, Leyte and qualified to register as a
voter thereat. Hence, the instant petition for
exclusion of Philip G. Romualdez from the list of
voter of Precinct No. 9, Malbog, Tolosa, Leyte is
hereby ordered DENIED and petition DISMISSED.
SO ORDERED.

Upon receipt of the adverse decision, Advincula appealed the case to

the respondent court.
On 03 April 1992, the respondent court rendered the assailed
decision, 12 thus:

the petition filed with the MTC that Advincula was himself a registered
voter in Precinct No. 9 of Barangay Malbog, Tolosa, Leyte conformably
with Section 142 of the Omnibus Election Code. 14

Hence, this recourse.

When respondent Advincula filed the petition with the MTC for the
exclusion of herein petitioner Romualdez, the latter countered by filing
his answer 15 and praying for the denial of the petition, without raising the
issue of jurisdiction. But what can be telling is that when the MTC
decision, denying the petition for disqualification, went on appeal to the
RTC, Romualdez, in his own appeal-memorandum, explicitly prayed that
the MTC decision be affirmed. This unassailable incident leads us to
reiterate that "while lack of jurisdiction may be assailed at any stage, a
party's active participation in the proceedings before a court without
jurisdiction will estop such party from assailing such lack of
jurisdiction." 16 Undoubtedly, the petitioner is now estopped from
questioning the jurisdiction of the respondent not only by his active
participation in the proceedings thereat but, more importantly, in having
sought an affirmative relief himself when the appeal was made to the
latter court whose jurisdiction he, in effect, invoked. Furthermore, the
question is not really as much the jurisdiction of the courts below as
merely the locus standi of the complainant in the proceedings, a matter
that, at this stage, should be considered foreclosed.

On 7 May 1992, this Court issued a temporary restraining order directing

respondent Regional Trial Court Judge Pedro Espino to cease and
desist from enforcing questioned decision. 13

In any case, we consider primordial the second issue of whether or not

Romualdez voluntarily left the country and abandoned his residence in
Malbog, Tolosa, Leyte. Here, this time, we find for the petitioner.

The petitioner has raised several issues which have been well
synthesized by the Solicitor General into

The Solicitor General himself sustains the view of petitioner Romualdez.

Expressing surprise at this stance given by the Solicitor General,
respondent Advincula posits non sequitur argument 17 in his comment
assailing instead the person of Solicitor Edgar Chua. If it would have any
value, at all, in disabusing the minds of those concerned, it may well be
to recall what this Court said in Rubio vs. Sto. Tomas: 18

WHEREFORE, this Court finds respondent Philip

Romualdez disqualified to register as a voter for the
1992 elections and hereby reverses the decision of
the lower court in toto.
The Municipal Registrar of the Commission on
Elections of Tolosa, Leyte, is hereby ordered to
delete and cancel the name of respondent Philip G.
Romualdez from the list of qualified voters registered
February 1, 1992, at Precinct 9, barangay Malbog,
Tolosa, Leyte.
SO ORDERED.

(1) Whether or not the MTC and RTC acquired jurisdiction over,
respectively, Case No. 01-S. 1992 and Case No. 92-03-42, the petition
having been filed by one who did not allege to be himself a registered
voter of the municipality concerned; and
(2) Whether or not the respondent court erred in finding the petitioner to
have voluntarily left the country and abandoned his residence in Malbog,
Tolosa, Leyte.
The petition is impressed with merit.
Anent the first issue, the petitioner assails for the first time the
jurisdiction of the respondent Court and the MTC of Tolosa, Leyte, in
taking cognizance of the case, despite an absence of any allegation in

It is also incumbent upon the Office of the Solicitor

General to present to the Court the position that will
legally uphold the best interest of the government,
although it may run counter to a client's position.
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." 19 "Domicile" denotes a fixed

permanent residence to which when absent for business or pleasure, or

for like reasons, one intends to return. 20 That residence, in the case of
the petitioner, was established during the early 1980's to be at Barangay
Malbog, Tolosa, Leyte. 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. 21 In other words, there must
basically be animus manendi coupled withanimus 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. 22
The political situation brought about by the "People's Power Revolution"
must have truly caused great apprehension to the Romualdezes, as well
as a serious concern over the safety and welfare of the members of their
families. Their going into self-exile until conditions favorable to them
would have somehow stabilized is understandable. Certainly, their
sudden departure from the country cannot be described as "voluntary,"
or as "abandonment of residence" at least in the context that these
terms are used in applying the concept of "domicile by choice."
We have closely examined the records, and we find not that much to
convince us that the petitioner had, in fact, abandoned his residence in
the Philippines and established his domicile elsewhere.
It must be emphasized that the right to vote is a most precious political
right, as well as a bounden duty of every citizen, enabling and requiring
him to participate in the process of government so as to ensure that the
government can truly be said to derive its power solely from the consent
of the governed. 23 We, therefore, must commend respondent Advincula
for spending time and effort even all the way up to this Court, for as the
right of suffrage is not to be abridged, so also must we safeguard and
preserve it but only on behalf of those entitled and bound to exercise it.
WHEREFORE, finding merit on the petition the same is hereby
GRANTED DUE COURSE; of the Decision of the respondent Regional
Trial Court dated 03 April 1992 is hereby REVERSED and SET ASIDE,
and the Decision of the Municipal Trial Court dated 28 February 1992 is
hereby REINSTATED and the Temporary Restraining Order issued by
the Court in this case is correspondingly made PERMANENT. No
pronouncement as to costs.
SO ORDERED.

G.R. No. L-16749

January 31, 1963

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E.

CHRISTENSEN, DECEASED.
ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the
deceased, Executor and Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of First Instance of Davao,
Hon. Vicente N. Cusi, Jr., presiding, in Special Proceeding No. 622 of
said court, dated September 14, 1949, approving among things the final
accounts of the executor, directing the executor to reimburse Maria Lucy
Christensen the amount of P3,600 paid by her to Helen Christensen
Garcia as her legacy, and declaring Maria Lucy Christensen entitled to
the residue of the property to be enjoyed during her lifetime, and in case
of death without issue, one-half of said residue to be payable to Mrs.
Carrie Louise C. Borton, etc., in accordance with the provisions of the
will of the testator Edward E. Christensen. The will was executed in
Manila on March 5, 1951 and contains the following provisions:
3. I declare ... that I have but ONE (1) child, named MARIA
LUCY CHRISTENSEN (now Mrs. Bernard Daney), who was
born in the Philippines about twenty-eight years ago, and who
is now residing at No. 665 Rodger Young Village, Los Angeles,
California, U.S.A.
4. I further declare that I now have no living ascendants, and
no descendants except my above named daughter, MARIA
LUCY CHRISTENSEN DANEY.
xxx

xxx

xxx

7. I give, devise and bequeath unto MARIA HELEN

CHRISTENSEN, now married to Eduardo Garcia, about
eighteen years of age and who, notwithstanding the fact that
she was baptized Christensen, is not in any way related to me,
nor has she been at any time adopted by me, and who, from

all information I have now resides in Egpit, Digos, Davao,

Philippines, the sum of THREE THOUSAND SIX HUNDRED
PESOS (P3,600.00), Philippine Currency the same to be
deposited in trust for the said Maria Helen Christensen with
the Davao Branch of the Philippine National Bank, and paid to
her at the rate of One Hundred Pesos (P100.00), Philippine
Currency per month until the principal thereof as well as any
interest which may have accrued thereon, is exhausted..
xxx

xxx

xxx

12. I hereby give, devise and bequeath, unto my well-beloved

daughter, the said MARIA LUCY CHRISTENSEN DANEY
(Mrs. Bernard Daney), now residing as aforesaid at No. 665
Rodger Young Village, Los Angeles, California, U.S.A., all the
income from the rest, remainder, and residue of my property
and estate, real, personal and/or mixed, of whatsoever kind or
character, and wheresoever situated, of which I may be
possessed at my death and which may have come to me from
any source whatsoever, during her lifetime: ....
It is in accordance with the above-quoted provisions that the executor in
his final account and project of partition ratified the payment of only
P3,600 to Helen Christensen Garcia and proposed that the residue of
the estate be transferred to his daughter, Maria Lucy Christensen.
Opposition to the approval of the project of partition was filed by Helen
Christensen Garcia, insofar as it deprives her (Helen) of her legitime as
an acknowledged natural child, she having been declared by Us in G.R.
Nos. L-11483-84 an acknowledged natural child of the deceased Edward
E. Christensen. The legal grounds of opposition are (a) that the
distribution should be governed by the laws of the Philippines, and (b)
that said order of distribution is contrary thereto insofar as it denies to
Helen Christensen, one of two acknowledged natural children, one-half
of the estate in full ownership. In amplification of the above grounds it
was alleged that the law that should govern the estate of the deceased
Christensen should not be the internal law of California alone, but the
entire law thereof because several foreign elements are involved, that
the forum is the Philippines and even if the case were decided in
California, Section 946 of the California Civil Code, which requires that
the domicile of the decedent should apply, should be applicable. It was
also alleged that Maria Helen Christensen having been declared an
acknowledged natural child of the decedent, she is deemed for all
purposes legitimate from the time of her birth.

The court below ruled that as Edward E. Christensen was a citizen of

the United States and of the State of California at the time of his death,
the successional rights and intrinsic validity of the provisions in his will
are to be governed by the law of California, in accordance with which a
testator has the right to dispose of his property in the way he desires,
because the right of absolute dominion over his property is sacred and
inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d 952,
and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179,
Record on Appeal). Oppositor Maria Helen Christensen, through
counsel, filed various motions for reconsideration, but these were
denied. Hence, this appeal.
The most important assignments of error are as follows:
I
THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE
HONORABLE SUPREME COURT THAT HELEN IS THE
ACKNOWLEDGED NATURAL CHILD OF EDWARD E. CHRISTENSEN
AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE
IN THE INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR
FAILING TO RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS,
ELEMENTS AND CIRCUMSTANCES CALLING FOR THE
APPLICATION OF INTERNAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT
UNDER INTERNATIONAL LAW, PARTICULARLY UNDER THE
RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE
TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE
ESTATE OF THE DECEASED EDWARD E. CHRISTENSEN SHOULD
BE GOVERNED BY THE LAWS OF THE PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT DECLARING THAT THE
SCHEDULE OF DISTRIBUTION SUBMITTED BY THE EXECUTOR IS
CONTRARY TO THE PHILIPPINE LAWS.

V
THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE
PHILIPPINE LAWS HELEN CHRISTENSEN GARCIA IS ENTITLED TO
ONE-HALF (1/2) OF THE ESTATE IN FULL OWNERSHIP.
There is no question that Edward E. Christensen was a citizen of the
United States and of the State of California at the time of his death. But
there is also no question that at the time of his death he was domiciled
in the Philippines, as witness the following facts admitted by the
executor himself in appellee's brief:
In the proceedings for admission of the will to probate, the
facts of record show that the deceased Edward E. Christensen
was born on November 29, 1875 in New York City, N.Y.,
U.S.A.; his first arrival in the Philippines, as an appointed
school teacher, was on July 1, 1901, on board the U.S. Army
Transport "Sheridan" with Port of Embarkation as the City of
San Francisco, in the State of California, U.S.A. He stayed in
the Philippines until 1904.
In December, 1904, Mr. Christensen returned to the United
States and stayed there for the following nine years until 1913,
during which time he resided in, and was teaching school in
Sacramento, California.
Mr. Christensen's next arrival in the Philippines was in July of
the year 1913. However, in 1928, he again departed the
Philippines for the United States and came back here the
following year, 1929. Some nine years later, in 1938, he again
returned to his own country, and came back to the Philippines
the following year, 1939.
Wherefore, the parties respectfully pray that the foregoing
stipulation of facts be admitted and approved by this
Honorable Court, without prejudice to the parties adducing
other evidence to prove their case not covered by this
stipulation of facts. 1wph1.t
Being an American citizen, Mr. Christensen was interned by
the Japanese Military Forces in the Philippines during World
War II. Upon liberation, in April 1945, he left for the United
States but returned to the Philippines in December, 1945.

Appellees Collective Exhibits "6", CFI Davao, Sp. Proc. 622,

as Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l",
"MM-2-Daney" and p. 473, t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen returned once more to
California shortly after the making of his last will and testament
(now in question herein) which he executed at his lawyers'
offices in Manila on March 5, 1951. He died at the St. Luke's
Hospital in the City of Manila on April 30, 1953. (pp. 2-3)
In arriving at the conclusion that the domicile of the deceased is the
Philippines, we are persuaded by the fact that he was born in New York,
migrated to California and resided there for nine years, and since he
came to the Philippines in 1913 he returned to California very rarely and
only for short visits (perhaps to relatives), and considering that he
appears never to have owned or acquired a home or properties in that
state, which would indicate that he would ultimately abandon the
Philippines and make home in the State of California.
Sec. 16. Residence is a term used with many shades of
meaning from mere temporary presence to the most
permanent abode. Generally, however, it is used to denote
something more than mere physical presence. (Goodrich on
Conflict of Laws, p. 29)
As to his citizenship, however, We find that the citizenship that he
acquired in California when he resided in Sacramento, California from
1904 to 1913, was never lost by his stay in the Philippines, for the latter
was a territory of the United States (not a state) until 1946 and the
deceased appears to have considered himself as a citizen of California
by the fact that when he executed his will in 1951 he declared that he
was a citizen of that State; so that he appears never to have intended to
abandon his California citizenship by acquiring another. This conclusion
is in accordance with the following principle expounded by Goodrich in
his Conflict of Laws.
The terms "'residence" and "domicile" might well be taken to
mean the same thing, a place of permanent abode. But
domicile, as has been shown, has acquired a technical
meaning. Thus one may be domiciled in a place where he has
never been. And he may reside in a place where he has no
domicile. The man with two homes, between which he divides
his time, certainly resides in each one, while living in it. But if
he went on business which would require his presence for

several weeks or months, he might properly be said to have

sufficient connection with the place to be called a resident. It is
clear, however, that, if he treated his settlement as continuing
only for the particular business in hand, not giving up his
former "home," he could not be a domiciled New Yorker.
Acquisition of a domicile of choice requires the exercise of
intention as well as physical presence. "Residence simply
requires bodily presence of an inhabitant in a given place,
while domicile requires bodily presence in that place and also
an intention to make it one's domicile." Residence, however, is
a term used with many shades of meaning, from the merest
temporary presence to the most permanent abode, and it is
not safe to insist that any one use et the only proper one.
(Goodrich, p. 29)
The law that governs the validity of his testamentary dispositions is
defined in Article 16 of the Civil Code of the Philippines, which is as
follows:
ART. 16. Real property as well as personal property is subject
to the law of the country where it is situated.
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be
the nature of the property and regardless of the country where
said property may be found.
The application of this article in the case at bar requires the
determination of the meaning of the term "national law" is used therein.
There is no single American law governing the validity of testamentary
provisions in the United States, each state of the Union having its own
private law applicable to its citizens only and in force only within the
state. The "national law" indicated in Article 16 of the Civil Code above
quoted can not, therefore, possibly mean or apply to any general
American law. So it can refer to no other than the private law of the State
of California.
The next question is: What is the law in California governing the
disposition of personal property? The decision of the court below,
sustains the contention of the executor-appellee that under the

California Probate Code, a testator may dispose of his property by will in

the form and manner he desires, citing the case of Estate of McDaniel,
77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant invokes the
provisions of Article 946 of the Civil Code of California, which is as
follows:
If there is no law to the contrary, in the place where personal
property is situated, it is deemed to follow the person of its
owner, and is governed by the law of his domicile.
The existence of this provision is alleged in appellant's opposition and is
not denied. We have checked it in the California Civil Code and it is
there. Appellee, on the other hand, relies on the case cited in the
decision and testified to by a witness. (Only the case of Kaufman is
correctly cited.) It is argued on executor's behalf that as the deceased
Christensen was a citizen of the State of California, the internal law
thereof, which is that given in the abovecited case, should govern the
determination of the validity of the testamentary provisions of
Christensen's will, such law being in force in the State of California of
which Christensen was a citizen. Appellant, on the other hand, insists
that Article 946 should be applicable, and in accordance therewith and
following the doctrine of therenvoi, the question of the validity of the
testamentary provision in question should be referred back to the law of
the decedent's domicile, which is the Philippines.
The theory of doctrine of renvoi has been defined by various authors,
thus:
The problem has been stated in this way: "When the Conflict
of Laws rule of the forum refers a jural matter to a foreign law
for decision, is the reference to the purely internal rules of law
of the foreign system; i.e., to the totality of the foreign law
minus its Conflict of Laws rules?"
On logic, the solution is not an easy one. The Michigan court
chose to accept the renvoi, that is, applied the Conflict of Laws
rule of Illinois which referred the matter back to Michigan law.
But once having determined the the Conflict of Laws principle
is the rule looked to, it is difficult to see why the reference back
should not have been to Michigan Conflict of Laws. This would
have resulted in the "endless chain of references" which has
so often been criticized be legal writers. The opponents of the
renvoi would have looked merely to the internal law of Illinois,
thus rejecting the renvoi or the reference back. Yet there

seems no compelling logical reason why the original reference

should be the internal law rather than to the Conflict of Laws
rule. It is true that such a solution avoids going on a merry-goround, but those who have accepted the renvoi theory avoid
this inextricabilis circulas by getting off at the second reference
and at that point applying internal law. Perhaps the opponents
of the renvoi are a bit more consistent for they look always to
internal law as the rule of reference.
Strangely enough, both the advocates for and the objectors to
the renvoi plead that greater uniformity will result from
adoption of their respective views. And still more strange is the
fact that the only way to achieve uniformity in this choice-oflaw problem is if in the dispute the two states whose laws form
the legal basis of the litigation disagree as to whether
the renvoi should be accepted. If both reject, or both accept
the doctrine, the result of the litigation will vary with the choice
of the forum. In the case stated above, had the Michigan court
rejected the renvoi, judgment would have been against the
woman; if the suit had been brought in the Illinois courts, and
they too rejected the renvoi, judgment would be for the
woman. The same result would happen, though the courts
would switch with respect to which would hold liability, if both
courts accepted the renvoi.
The Restatement accepts the renvoi theory in two instances:
where the title to land is in question, and where the validity of
a decree of divorce is challenged. In these cases the Conflict
of Laws rule of the situs of the land, or the domicile of the
parties in the divorce case, is applied by the forum, but any
further reference goes only to the internal law. Thus, a
person's title to land, recognized by the situs, will be
recognized by every court; and every divorce, valid by the
domicile of the parties, will be valid everywhere. (Goodrich,
Conflict of Laws, Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies intestate, domiciled in
France, leaving movable property in Massachusetts, England,
and France. The question arises as to how this property is to
be distributed among X's next of kin.
Assume (1) that this question arises in a Massachusetts court.
There the rule of the conflict of laws as to intestate succession
to movables calls for an application of the law of the

deceased's last domicile. Since by hypothesis X's last domicile

was France, the natural thing for the Massachusetts court to
do would be to turn to French statute of distributions, or
whatever corresponds thereto in French law, and decree a
distribution accordingly. An examination of French law,
however, would show that if a French court were called upon
to determine how this property should be distributed, it would
refer the distribution to the national law of the deceased, thus
applying the Massachusetts statute of distributions. So on the
surface of things the Massachusetts court has open to it
alternative course of action: (a) either to apply the French law
is to intestate succession, or (b) to resolve itself into a French
court and apply the Massachusetts statute of distributions, on
the assumption that this is what a French court would do. If it
accepts the so-called renvoidoctrine, it will follow the latter
course, thus applying its own law.
This is one type of renvoi. A jural matter is presented which the
conflict-of-laws rule of the forum refers to a foreign law, the
conflict-of-laws rule of which, in turn, refers the matter back
again to the law of the forum. This is renvoi in the narrower
sense. The German term for this judicial process is
'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523571.)
After a decision has been arrived at that a foreign law is to be
resorted to as governing a particular case, the further question
may arise: Are the rules as to the conflict of laws contained in
such foreign law also to be resorted to? This is a question
which, while it has been considered by the courts in but a few
instances, has been the subject of frequent discussion by
textwriters and essayists; and the doctrine involved has been
descriptively designated by them as the "Renvoyer" to send
back, or the "Ruchversweisung", or the "Weiterverweisung",
since an affirmative answer to the question postulated and the
operation of the adoption of the foreign law in toto would in
many cases result in returning the main controversy to be
decided according to the law of the forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine of renvoi", has been
advanced. The theory of the doctrine of renvoiis that the court
of the forum, in determining the question before it, must take
into account the whole law of the other jurisdiction, but also its
rules as to conflict of laws, and then apply the law to the actual

question which the rules of the other jurisdiction prescribe.

This may be the law of the forum. The doctrine of
therenvoi has generally been repudiated by the American
authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also been defined and the reasons
for its application in a country explained by Prof. Lorenzen in an article in
the Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531. The pertinent
parts of the article are quoted herein below:
The recognition of the renvoi theory implies that the rules of
the conflict of laws are to be understood as incorporating not
only the ordinary or internal law of the foreign state or country,
but its rules of the conflict of laws as well. According to this
theory 'the law of a country' means the whole of its law.
xxx

xxx

xxx

Von Bar presented his views at the meeting of the Institute of

International Law, at Neuchatel, in 1900, in the form of the
following theses:
(1) Every court shall observe the law of its country as regards
the application of foreign laws.
(2) Provided that no express provision to the contrary exists,
the court shall respect:
(a) The provisions of a foreign law which disclaims
the right to bind its nationals abroad as regards their
personal statute, and desires that said personal
statute shall be determined by the law of the
domicile, or even by the law of the place where the
act in question occurred.
(b) The decision of two or more foreign systems of
law, provided it be certain that one of them is
necessarily competent, which agree in attributing the
determination of a question to the same system of
law.
xxx

xxx

xxx

If, for example, the English law directs its judge to distribute
the personal estate of an Englishman who has died domiciled
in Belgium in accordance with the law of his domicile, he must
first inquire whether the law of Belgium would distribute
personal property upon death in accordance with the law of
domicile, and if he finds that the Belgian law would make the
distribution in accordance with the law of nationality that is
the English law he must accept this reference back to his
own law.
We note that Article 946 of the California Civil Code is its conflict of laws
rule, while the rule applied in In re Kaufman, Supra, its internal law. If the
law on succession and the conflict of laws rules of California are to be
enforced jointly, each in its own intended and appropriate sphere, the
principle cited In re Kaufman should apply to citizens living in the State,
but Article 946 should apply to such of its citizens as are not domiciled in
California but in other jurisdictions. The rule laid down of resorting to the
law of the domicile in the determination of matters with foreign element
involved is in accord with the general principle of American law that the
domiciliary law should govern in most matters or rights which follow the
person of the owner.
When a man dies leaving personal property in one or more
states, and leaves a will directing the manner of distribution of
the property, the law of the state where he was domiciled at
the time of his death will be looked to in deciding legal
questions about the will, almost as completely as the law of
situs is consulted in questions about the devise of land. It is
logical that, since the domiciliary rules control devolution of the
personal estate in case of intestate succession, the same
rules should determine the validity of an attempted
testamentary dispostion of the property. Here, also, it is not
that the domiciliary has effect beyond the borders of the
domiciliary state. The rules of the domicile are recognized as
controlling by the Conflict of Laws rules at the situs property,
and the reason for the recognition as in the case of intestate
succession, is the general convenience of the doctrine. The
New York court has said on the point: 'The general principle
that a dispostiton of a personal property, valid at the domicile
of the owner, is valid anywhere, is one of the universal
application. It had its origin in that international comity which
was one of the first fruits of civilization, and it this age, when
business intercourse and the process of accumulating property
take but little notice of boundary lines, the practical wisdom

and justice of the rule is more apparent than ever. (Goodrich,

Conflict of Laws, Sec. 164, pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of the Philippines
pointed out as the national law is the internal law of California. But as
above explained the laws of California have prescribed two sets of laws
for its citizens, one for residents therein and another for those domiciled
in other jurisdictions. Reason demands that We should enforce the
California internal law prescribed for its citizens residing therein, and
enforce the conflict of laws rules for the citizens domiciled abroad. If we
must enforce the law of California as in comity we are bound to go, as
so declared in Article 16 of our Civil Code, then we must enforce the law
of California in accordance with the express mandate thereof and as
above explained, i.e., apply the internal law for residents therein, and its
conflict-of-laws rule for those domiciled abroad.
It is argued on appellees' behalf that the clause "if there is no law to the
contrary in the place where the property is situated" in Sec. 946 of the
California Civil Code refers to Article 16 of the Civil Code of the
Philippines and that the law to the contrary in the Philippines is the
provision in said Article 16 that the national law of the deceased should
govern. This contention can not be sustained. As explained in the
various authorities cited above the national law mentioned in Article 16
of our Civil Code is the law on conflict of laws in the California Civil
Code, i.e., Article 946, which authorizes the reference or return of the
question to the law of the testator's domicile. The conflict of laws rule in
California, Article 946, Civil Code, precisely refers back the case, when a
decedent is not domiciled in California, to the law of his domicile, the
Philippines in the case at bar. The court of the domicile can not and
should not refer the case back to California; such action would leave the
issue incapable of determination because the case will then be like a
football, tossed back and forth between the two states, between the
country of which the decedent was a citizen and the country of his
domicile. The Philippine court must apply its own law as directed in the
conflict of laws rule of the state of the decedent, if the question has to be
decided, especially as the application of the internal law of California
provides no legitime for children while the Philippine law, Arts. 887(4)
and 894, Civil Code of the Philippines, makes natural children legally
acknowledged forced heirs of the parent recognizing them.
The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs.
Palmaroli, 40 Phil. 105; Miciano vs. Brimo, 50 Phil. 867; Babcock
Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs. Government,
59 Phil. 293.) cited by appellees to support the decision can not possibly

apply in the case at bar, for two important reasons, i.e., the subject in
each case does not appear to be a citizen of a state in the United States
but with domicile in the Philippines, and it does not appear in each case
that there exists in the state of which the subject is a citizen, a law
similar to or identical with Art. 946 of the California Civil Code.
We therefore find that as the domicile of the deceased Christensen, a
citizen of California, is the Philippines, the validity of the provisions of his
will depriving his acknowledged natural child, the appellant, should be
governed by the Philippine Law, the domicile, pursuant to Art. 946 of the
Civil Code of California, not by the internal law of California..
WHEREFORE, the decision appealed from is hereby reversed and the
case returned to the lower court with instructions that the partition be
made as the Philippine law on succession provides. Judgment reversed,
with costs against appellees.
G.R. No. L-23678

June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased.

PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositorsappellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis,
et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law, from an
order of the Court of First Instance of Manila dated April 30, 1964,
approving the project of partition filed by the executor in Civil Case No.
37089 therein.1wph1.t
The facts of the case are as follows:

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of
the United States." By his first wife, Mary E. Mallen, whom he divorced,
he had five legitimate children: Edward A. Bellis, George Bellis (who predeceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna
Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he
had three legitimate children: Edwin G. Bellis, Walter S. Bellis and
Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis,
Jr., Maria Cristina Bellis and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in
which he directed that after all taxes, obligations, and expenses of
administration are paid for, his distributable estate should be divided, in
trust, in the following order and manner: (a) $240,000.00 to his first wife,
Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos
Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis, or P40,000.00 each
and (c) after the foregoing two items have been satisfied, the remainder
shall go to his seven surviving children by his first and second wives,
namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna
Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in
equal shares.1wph1.t
Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San
Antonio, Texas, U.S.A. His will was admitted to probate in the Court of
First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will, paid all
the bequests therein including the amount of $240,000.00 in the form of
shares of stock to Mary E. Mallen and to the three (3) illegitimate
children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis,
various amounts totalling P40,000.00 each in satisfaction of their
respective legacies, or a total of P120,000.00, which it released from
time to time according as the lower court approved and allowed the
various motions or petitions filed by the latter three requesting partial
advances on account of their respective legacies.
On January 8, 1964, preparatory to closing its administration, the
executor submitted and filed its "Executor's Final Account, Report of
Administration and Project of Partition" wherein it reported, inter alia, the
satisfaction of the legacy of Mary E. Mallen by the delivery to her of
shares of stock amounting to $240,000.00, and the legacies of Amos
Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of
P40,000.00 each or a total of P120,000.00. In the project of partition, the
executor pursuant to the "Twelfth" clause of the testator's Last Will
and Testament divided the residuary estate into seven equal portions

for the benefit of the testator's seven legitimate children by his first and
second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed
their respective oppositions to the project of partition on the ground that
they were deprived of their legitimes as illegitimate children and,
therefore, compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him, proof of
service of which is evidenced by the registry receipt submitted on April
27, 1964 by the executor.1
After the parties filed their respective memoranda and other pertinent
pleadings, the lower court, on April 30, 1964, issued an order overruling
the oppositions and approving the executor's final account, report and
administration and project of partition. Relying upon Art. 16 of the Civil
Code, it applied the national law of the decedent, which in this case is
Texas law, which did not provide for legitimes.
Their respective motions for reconsideration having been denied by the
lower court on June 11, 1964, oppositors-appellants appealed to this
Court to raise the issue of which law must apply Texas law or
Philippine law.
In this regard, the parties do not submit the case on, nor even discuss,
the doctrine of renvoi, applied by this Court in Aznar v. Christensen
Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent
where the decedent is a national of one country, and a domicile of
another. In the present case, it is not disputed that the decedent was
both a national of Texas and a domicile thereof at the time of his
death.2 So that even assuming Texas has a conflict of law rule providing
that the domiciliary system (law of the domicile) should govern, the
same would not result in a reference back (renvoi) to Philippine law, but
would still refer to Texas law. Nonetheless, if Texas has a conflicts rule
adopting the situs theory (lex rei sitae) calling for the application of the
law of the place where the properties are situated, renvoi would arise,
since the properties here involved are found in the Philippines. In the
absence, however, of proof as to the conflict of law rule of Texas, it
should not be presumed different from ours.3Appellants' position is
therefore not rested on the doctrine of renvoi. As stated, they never
invoked nor even mentioned it in their arguments. Rather, they argue
that their case falls under the circumstances mentioned in the third
paragraph of Article 17 in relation to Article 16 of the Civil Code.

Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the
national law of the decedent, in intestate or testamentary successions,
with regard to four items: (a) the order of succession; (b) the amount of
successional rights; (e) the intrinsic validity of the provisions of the will;
and (d) the capacity to succeed. They provide that
ART. 16. Real property as well as personal property is subject
to the law of the country where it is situated.
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may he
the nature of the property and regardless of the country
wherein said property may be found.
ART. 1039. Capacity to succeed is governed by the law of the
nation of the decedent.
Appellants would however counter that Art. 17, paragraph three, of the
Civil Code, stating that
Prohibitive laws concerning persons, their acts or property,
and those which have for their object public order, public policy
and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.
prevails as the exception to Art. 16, par. 2 of the Civil Code aforequoted. This is not correct. Precisely, Congressdeleted the phrase,
"notwithstanding the provisions of this and the next preceding article"
when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new
Civil Code, while reproducing without substantial change the second
paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must
have been their purpose to make the second paragraph of Art. 16 a
specific provision in itself which must be applied in testate and intestate
succession. As further indication of this legislative intent, Congress
added a new provision, under Art. 1039, which decrees that capacity to
succeed is to be governed by the national law of the decedent.
It is therefore evident that whatever public policy or good customs may
be involved in our System of legitimes, Congress has not intended to

extend the same to the succession of foreign nationals. For it has

specifically chosen to leave, inter alia, the amount of successional rights,
to the decedent's national law. Specific provisions must prevail over
general ones.
Appellants would also point out that the decedent executed two wills
one to govern his Texas estate and the other his Philippine estate
arguing from this that he intended Philippine law to govern his Philippine
estate. Assuming that such was the decedent's intention in executing a
separate Philippine will, it would not alter the law, for as this Court ruled
in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to
the effect that his properties shall be distributed in accordance with
Philippine law and not with his national law, is illegal and void, for his
national law cannot be ignored in regard to those matters that Article 10
now Article 16 of the Civil Code states said national law should
govern.
The parties admit that the decedent, Amos G. Bellis, was a citizen of the
State of Texas, U.S.A., and that under the laws of Texas, there are no
forced heirs or legitimes. Accordingly, since the intrinsic validity of the
provision of the will and the amount of successional rights are to be
determined under Texas law, the Philippine law on legitimes cannot be
applied to the testacy of Amos G. Bellis.
Wherefore, the order of the probate court is hereby affirmed in toto, with
costs against appellants. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar,
Sanchez and Castro, JJ., concur.
G.R. No. 141917

February 7, 2007

BERNARDINO S. ZAMORA, Petitioner,

vs.
COURT OF APPEALS and NORMA MERCADO
ZAMORA, Respondents.
DECISION
AZCUNA, J.:
This is an appeal by certiorari under Rule 45 of the Rules of Court to
annul and set aside the Decision and Resolution of the Court of Appeals

(CA) dated August 5, 1999 and January 24, 2000 in CA-G.R. CV No.
53525, entitled "Bernardino S. Zamora v. Norma Mercado Zamora,"
which affirmed the dismissal of a complaint for declaration of nullity of
marriage.
The facts1 are:
Petitioner and private respondent were married on June 4, 1970 in Cebu
City. After their marriage, they lived together at No. 50-A Gorordo
Avenue, Cebu City. The union did not produce any child. In 1972, private
respondent left for the United States to work as a nurse. She returned to
the Philippines for a few months, then left again in 1974. Thereafter, she
made periodic visits to Cebu City until 1989, when she was already a
U.S. citizen.
Petitioner filed a complaint for declaration of nullity of marriage anchored
on the alleged "psychological incapacity" of private respondent, as
provided for under Article 36 of the Family Code. To support his position,
he alleged that his wife was "horrified" by the mere thought of having
children as evidenced by the fact that she had not borne petitioner a
child. Furthermore, he also alleged that private respondent abandoned
him by living in the United States and had in fact become an American
citizen; and that throughout their marriage they lived together for not
more than three years.
On the other hand, private respondent denied that she refused to have a
child. She portrayed herself as one who loves children as she is a nurse
by profession and that she would from time to time borrow her
husbands niece and nephews to care for them. She also faulted her
husband for the breakup of their marriage, alleging that he had been
unfaithful to her. He allegedly had two affairs with different women, and
he begot at least three children with them.
On June 22, 1995, the trial court rendered its decision thus:
...
Plaintiff consented to defendants trip to the United States in 1974. She
[defendant] wanted to earn money there because she wanted to help
her husband build a big house at the Beverly Hills, Cebu City.
Defendants testimony was corroborated by Paulina Martinez, a former
househelp of the Zamoras.She always wanted to live in the Philippines
before her husband committed infidelity.

One reason why defendant seldom saw her husband while she was in
the Philippines was because of the infidelity committed by her husband.
No less than plaintiff himself admitted that he has a child with a certain
[x x x]. The court is also convinced that he has two children with a
certain [y y y]. The infidelity on the part of the plaintiff was one of the
contributing factors which led to the estranged relationship between him
and defendant.
[N]othing in the evidence of plaintiff show[s] that the defendant
suffered from any psychological incapacity or that she failed to comply
with her essential marital obligations. There is no evidence of
psychological incapacity on the part of defendant so that she could not
carry out the ordinary duties required in married life. Neither has it been
shown that there was an incurable defect on the part of defendant.
...
WHEREFORE, in view of the foregoing, judgment is hereby rendered
DISMISSING the complaint.

the parties failed to meet their responsibilities and duties as married

persons; it is essential that they must be shown to be incapable of doing
so, due to some psychological (not physical) illness."
This appeal does not fall in the category of psychological incapacity as
defined in the aforementioned cases. The mere refusal of the appellee to
bear a child is not equivalent to psychological incapacity, since even if
such allegation is true, it is not shown or proven that this is due to
psychological illness.

As correctly stated by the appellee in her brief, the appellant even failed
to present any psychologist or other medical expert to prove the
psychological incapacity of defendant-appellee. This WE feel is a fatal
omission on the part of the appellant, considering the doctrine laid down
in the Santos and Molina cases (supra).

Without special pronouncement as to cost.

WHEREFORE, in view of the foregoing, the decision of the Regional

Trial Court, Branch 13 of Cebu City is hereby AFFIRMED. Appeal
DISMISSED.

SO ORDERED.2

SO ORDERED.5

Petitioner appealed to the CA which rendered a Decision on August 5,

1999 affirming the ruling of the trial court. The pertinent portions of the
CA decision read:

Petitioner filed a motion for reconsideration but the same was denied by
the CA in its Resolution dated January 24, 2000.
Hence, this petition raising the following issues:

Without delving further into both parties allegations, we must deny this
appeal.
In the case of Leouel Santos v. Court of Appeals,3the High Court ruled
that, "psychological incapacity should refer to no less than a mental (not
physical) incapacity x x x and that there is hardly any doubt that the
intendment of the law has been to confine the meaning of psychological
incapacity to the most serious cases of personality or inability to give
meaning and significance to the marriage."
Also, in Republic v. Court of Appeals and Molina,4 it was held that "mere
showing of irreconcilable differences and conflicting personalities in no
wise constitutes psychological incapacity. It is not enough to prove that

1) Whether or not the Court of Appeals misapplied facts of

weight and substance affecting the result of the present case;
2) Whether or not Article 68 of the Family Code is applicable to
this case;
3) Whether or not the presentation of psychologists and/or
psychiatrists is still desirable, if evidence in this case already
shows the psychological incapacity of private respondent;
4) Whether or not the presentation of psychologists and/or
psychiatrists is still desirable, considering that the private
respondent is a resident of the United States and living far
away from the Philippines for more than twenty (20) years:

5) Whether or not private respondents refusal to live with

petitioner under one roof for more than twenty (20) years, her
refusal to bear children with petitioner, and her living a solitary
life in the United States for almost three (3) decades are
enough indications of psychological incapacity to comply with
essential marital obligations under Article 36 of the Family
Code.6
Briefly, the issue is whether there can be a declaration of nullity of the
marriage between petitioner and private respondent on the ground of
psychological incapacity.
Petitioner argues as follows:
First, there is nothing in Santos v. CA,7 upon which private respondent
relies, that requires as a conditio sine qua non the presentation of expert
opinion of psychologists and psychiatrists in every petition filed under
Article 36 of the Family Code. This Court merely said in that case that
"[t]he well-considered opinions of psychiatrists, psychologists, and
persons with expertise in psychological disciplines might be helpful or
even desirable." However, no expert opinion is helpful or even desirable
to determine whether private respondent has been living abroad and
away from her husband for many years; whether she has a child; and
whether she has made her residence abroad permanent by acquiring
U.S. citizenship; and
Second, Article 36 of the Family Code provides that a marriage
contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization. Among the essential
marital obligations embraced by Articles 68 to 71 of the same Code is to
procreate children through sexual cooperation which is the basic end of
marriage. To live together under one roof for togetherness spells the
unity in marriage. The marriage had been existing for twenty four years
when private respondent filed a legal separation case against petitioner.
Throughout this period, private respondent deliberately and obstinately
refused to comply with the essential marital obligation to live and cohabit
with her husband.
This Court rules as follows:
It is true, as petitioner noted, that the case of Santos v. CA8 did not
specifically mention that the presentation of expert opinion is a vital and

mandatory requirement in filing a petition for the declaration of nullity of

marriage grounded on psychological incapacity referred to under Article
36 of the Family Code. Even in the subsequent case of Republic v.
Court of Appeals 9 (also known as the Molina case10 ), wherein the Court
laid down the guidelines11 in the interpretation and application of the
aforementioned article, examination of the person by a physician in
order for the former to be declared psychologically incapacitated was
likewise not considered a requirement.12 What is important, however, as
stated in Marcos v. Marcos,13 is the presence of evidence that can
adequately establish the partys psychological condition. If the totality of
evidence presented is enough to sustain a finding of psychological
incapacity, then actual medical examination of the person concerned
need not be resorted to.
Likewise, Section 2(d) of A.M. No. 02-11-10-SC or the Rule on
Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages, which took effect on March 15, 2003,
states:1awphi1.net

WHEREFORE, the petition is DENIED. The Decision and Resolution of

the Court of Appeals dated August 5, 1999 and January 24, 2000,
respectively, in CA-G.R. CV No. 53525 are AFFIRMED.
No costs.
SO ORDERED.
G.R. No. 112019 January 4, 1995
LEOUEL SANTOS, petitioner,
vs.
THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO
BEDIA-SANTOS, respondents.

VITUG, J.:
(d) What to allege. A petition under Article 36 of the Family Code shall
specifically allege the complete facts showing that either or both parties
were psychologically incapacitated from complying with the essential
marital obligations of marriage at the time of the celebration of marriage
even if such incapacity becomes manifest only after its celebration.
The complete facts should allege the physical manifestations, if any, as
are indicative of psychological incapacity at the time of the celebration of
the marriage but expert opinion need not be alleged.14
The rule is that the facts alleged in the petition and the evidence
presented, considered in totality, should be sufficient to convince the
court of the psychological incapacity of the party concerned. Petitioner,
however, failed to substantiate his allegation that private respondent is
psychologically incapacitated. His allegations relating to her refusal to
cohabit with him and to bear a child was strongly disputed, as the
records undeniably bear out. Furthermore, the acts and behavior of
private respondent that petitioner cited occurred during the marriage,
and there is no proof that the former exhibited a similar predilection even
before or at the inception of the marriage.
Thus, based on the foregoing, the Court finds no reason to disturb the
findings and conclusions reached by the trial court and the CA.

Concededly a highly, if not indeed the most likely, controversial provision

introduced by the Family Code is Article 36 (as amended by E.O. No.
227 dated 17 July 1987), which declares:
Art. 36. A marriage contracted by any party who, at
the time of the celebration, was psychologically
incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its
solemnization.
The present petition for review on certiorari, at the instance of
Leouel Santos ("Leouel"), brings into fore the above provision
which is now invoked by him. Undaunted by the decisions of
the court a quo 1 and the Court of Appeal, 2 Leouel persists in
beseeching its application in his attempt to have his marriage
with herein private respondent, Julia Rosario Bedia-Santos
("Julia"), declared a nullity.
It was in Iloilo City where Leouel, who then held the rank of First
Lieutenant in the Philippine Army, first met Julia. The meeting later
proved to be an eventful day for Leouel and Julia. On 20 September
1986, the two exchanged vows before Municipal Trial Court Judge
Cornelio G. Lazaro of Iloilo City, followed, shortly thereafter, by a church

wedding. Leouel and Julia lived with the latter's parents at the J. Bedia
Compound, La Paz, Iloilo City. On 18 July 1987, Julia gave birth to a
baby boy, and he was christened Leouel Santos, Jr. The ecstasy,
however, did not last long. It was bound to happen, Leouel averred,
because of the frequent interference by Julia's parents into the young
spouses family affairs. Occasionally, the couple would also start a
"quarrel" over a number of other things, like when and where the couple
should start living independently from Julia's parents or whenever Julia
would express resentment on Leouel's spending a few days with his own
parents.
On 18 May 1988, Julia finally left for the United Sates of America to work
as a nurse despite Leouel's pleas to so dissuade her. Seven months
after her departure, or on 01 January 1989, Julia called up Leouel for the
first time by long distance telephone. She promised to return home upon
the expiration of her contract in July 1989. She never did. When Leouel
got a chance to visit the United States, where he underwent a training
program under the auspices of the Armed Forces of the Philippines from
01 April up to 25 August 1990, he desperately tried to locate, or to
somehow get in touch with, Julia but all his efforts were of no avail.
Having failed to get Julia to somehow come home, Leouel filed with the
regional trial Court of Negros Oriental, Branch 30, a complaint for
"Voiding of marriage Under Article 36 of the Family Code" (docketed,
Civil Case No. 9814). Summons was served by publication in a
newspaper of general circulation in Negros Oriental.
On 31 May 1991, respondent Julia, in her answer (through counsel),
opposed the complaint and denied its allegations, claiming, in main, that
it was the petitioner who had, in fact, been irresponsible and
incompetent.
A possible collusion between the parties to obtain a decree of nullity of
their marriage was ruled out by the Office of the Provincial Prosecutor
(in its report to the court).
On 25 October 1991, after pre-trial conferences had repeatedly been
set, albeit unsuccessfully, by the court, Julia ultimately filed a
manifestation, stating that she would neither appear nor submit
evidence.
On 06 November 1991, the court a quo finally dismissed the complaint
for lack of merit. 3

Leouel appealed to the Court of Appeal. The latter affirmed the decision
of the trial court. 4
The petition should be denied not only because of its non-compliance
with Circular 28-91, which requires a certification of non-shopping, but
also for its lack of merit.
Leouel argues that the failure of Julia to return home, or at the very least
to communicate with him, for more than five years are circumstances
that clearly show her being psychologically incapacitated to enter into
married life. In his own words, Leouel asserts:
. . . (T)here is no leave, there is no affection for (him)
because respondent Julia Rosario Bedia-Santos
failed all these years to communicate with the
petitioner. A wife who does not care to inform her
husband about her whereabouts for a period of five
years, more or less, is psychologically incapacitated.
The family Code did not define the term "psychological incapacity." The
deliberations during the sessions of the Family Code Revision
Committee, which has drafted the Code, can, however, provide an
insight on the import of the provision.
Art. 35. The following marriages shall be void from
the beginning:
xxx xxx xxx
Art. 36. . . .
(7) Those marriages contracted by any party who, at
the time of the celebration, was wanting in the
sufficient use of reason or judgment to understand
the essential nature of marriage or was
psychologically or mentally incapacitated to
discharge the essential marital obligations, even if
such lack of incapacity is made manifest after the
celebration.
On subparagraph (7), which as lifted from the Canon
Law, Justice (Jose B.L.) Reyes suggested that they
say "wanting in sufficient use," but Justice (Eduardo)

Caguioa preferred to say "wanting in the sufficient

use." On the other hand, Justice Reyes proposed
that they say "wanting in sufficient reason." Justice
Caguioa, however, pointed out that the idea is that
one is not lacking in judgment but that he is lacking
in the exercise of judgment. He added that lack of
judgment would make the marriage voidable. Judge
(Alicia Sempio-) Diy remarked that lack of judgment
is more serious than insufficient use of judgment and
yet the latter would make the marriage null and void
and the former only voidable. Justice Caguioa
suggested that subparagraph (7) be modified to
read:
"That contracted by any party
who, at the time of the
celebration, was psychologically
incapacitated to discharge the
essential marital obligations,
even if such lack of incapacity is
made manifest after the
celebration."
Justice Caguioa explained that the phrase "was
wanting in sufficient use of reason of judgment to
understand the essential nature of marriage" refers
to defects in the mental faculties vitiating consent,
which is not the idea in subparagraph (7), but lack of
appreciation of one's marital obligations.
Judge Diy raised the question: Since "insanity" is
also a psychological or mental incapacity, why is
"insanity" only a ground for annulment and not for
declaration or nullity? In reply, Justice Caguioa
explained that in insanity, there is the appearance of
consent, which is the reason why it is a ground for
voidable marriages, while subparagraph (7) does not
refer to consent but to the very essence of marital
obligations.
Prof. (Araceli) Baviera suggested that, in
subparagraph (7), the word "mentally" be deleted,
with which Justice Caguioa concurred. Judge Diy,
however, prefers to retain the word "mentally."

Justice Caguioa remarked that subparagraph (7)

refers to psychological impotence. Justice (Ricardo)
Puno stated that sometimes a person may be
psychologically impotent with one but not with
another. Justice (Leonor Ines-) Luciano said that it is
called selective impotency.
Dean (Fortunato) Gupit stated that the confusion lies
in the fact that in inserting the Canon Law annulment
in the Family Code, the Committee used a language
which describes a ground for voidable marriages
under the Civil Code. Justice Caguioa added that in
Canon Law, there are voidable marriages under the
Canon Law, there are no voidable marriages Dean
Gupit said that this is precisely the reason why they
should make a distinction.
Justice Puno remarked that in Canon Law, the
defects in marriage cannot be cured.
Justice Reyes pointed out that the problem is: Why
is "insanity" a ground for void ab initio marriages? In
reply, Justice Caguioa explained that insanity is
curable and there are lucid intervals, while
psychological incapacity is not.
On another point, Justice Puno suggested that the
phrase "even if such lack or incapacity is made
manifest" be modified to read "even if such lack or
incapacity becomes manifest."
Justice Reyes remarked that in insanity, at the time
of the marriage, it is not apparent.
Justice Caguioa stated that there are two
interpretations of the phrase "psychological or
mentally incapacitated" in the first one, there is
vitiation of consent because one does not know all
the consequences of the marriages, and if he had
known these completely, he might not have
consented to the marriage.
xxx xxx xxx

Prof. Bautista stated that he is in favor of making

psychological incapacity a ground for voidable
marriages since otherwise it will encourage one who
really understood the consequences of marriage to
claim that he did not and to make excuses for
invalidating the marriage by acting as if he did not
understand the obligations of marriage. Dean Gupit
added that it is a loose way of providing for divorce.

other words, as long as the defect has not been

cured, there is always a right to annul the marriage
and if the defect has been really cured, it should be
a defense in the action for annulment so that when
the action for annulment is instituted, the issue can
be raised that actually, although one might have
been psychologically incapacitated, at the time the
action is brought, it is no longer true that he has no
concept of the consequence of marriage.

xxx xxx xxx

Justice Caguioa explained that his point is that in the
case of incapacity by reason of defects in the mental
faculties, which is less than insanity, there is a defect
in consent and, therefore, it is clear that it should be
a ground for voidable marriage because there is the
appearance of consent and it is capable of
convalidation for the simple reason that there are
lucid intervals and there are cases when the insanity
is curable. He emphasized that psychological
incapacity does not refer to mental faculties and has
nothing to do with consent; it refers to obligations
attendant to marriage.

Prof. (Esteban) Bautista raised the question: Will not

cohabitation be a defense? In response, Justice
Puno stated that even the bearing of children and
cohabitation should not be a sign that psychological
incapacity has been cured.
Prof. Romero opined that psychological incapacity is
still insanity of a lesser degree. Justice Luciano
suggested that they invite a psychiatrist, who is the
expert on this matter. Justice Caguioa, however,
reiterated that psychological incapacity is not a
defect in the mind but in the understanding of the
consequences of marriage, and therefore, a
psychiatrist will not be a help.

xxx xxx xxx

On psychological incapacity, Prof. (Flerida Ruth P.)
Romero inquired if they do not consider it as going
to the very essence of consent. She asked if they
are really removing it from consent. In reply, Justice
Caguioa explained that, ultimately, consent in
general is effected but he stressed that his point is
that it is not principally a vitiation of consent since
there is a valid consent. He objected to the lumping
together of the validity of the marriage celebration
and the obligations attendant to marriage, which are
completely different from each other, because they
require a different capacity, which is eighteen years
of age, for marriage but in contract, it is different.
Justice Puno, however, felt that psychological
incapacity is still a kind of vice of consent and that it
should not be classified as a voidable marriage
which is incapable of convalidation; it should be
convalidated but there should be no prescription. In

Prof. Bautista stated that, in the same manner that

there is a lucid interval in insanity, there are also
momentary periods when there is an understanding
of the consequences of marriage. Justice Reyes and
Dean Gupit remarked that the ground of
psychological incapacity will not apply if the marriage
was contracted at the time when there is
understanding of the consequences of marriage. 5
xxx xxx xxx
Judge Diy proposed that they include physical
incapacity to copulate among the grounds for void
marriages. Justice Reyes commented that in some
instances the impotence that in some instances the
impotence is only temporary and only with respect to
a particular person. Judge Diy stated that they can
specify that it is incurable. Justice Caguioa remarked
that the term "incurable" has a different meaning in

law and in medicine. Judge Diy stated that

"psychological incapacity" can also be cured. Justice
Caguioa, however, pointed out that "psychological
incapacity" is incurable.
Justice Puno observed that under the present draft
provision, it is enough to show that at the time of the
celebration of the marriage, one was psychologically
incapacitated so that later on if already he can
comply with the essential marital obligations, the
marriage is still void ab initio. Justice Caguioa
explained that since in divorce, the psychological
incapacity may occur after the marriage, in void
marriages, it has to be at the time of the celebration
of marriage. He, however, stressed that the idea in
the provision is that at the time of the celebration of
the marriage, one is psychologically incapacitated to
comply with the essential marital obligations, which
incapacity continues and later becomes manifest.
Justice Puno and Judge Diy, however, pointed out
that it is possible that after the marriage, one's
psychological incapacity become manifest but later
on he is cured. Justice Reyes and Justice Caguioa
opined that the remedy in this case is to allow him to
remarry. 6
xxx xxx xxx

incapacity becomes manifest after its solemnization"

be deleted since it may encourage one to create the
manifestation of psychological incapacity. Justice
Caguioa pointed out that, as in other provisions, they
cannot argue on the basis of abuse.

At this point, Justice Puno, remarked that, since

there having been annulments of marriages arising
from psychological incapacity, Civil Law should not
reconcile with Canon Law because it is a new
ground even under Canon Law.

Judge Diy suggested that they also include mental

and physical incapacities, which are lesser in degree
than psychological incapacity. Justice Caguioa
explained that mental and physical incapacities are
vices of consent while psychological incapacity is
not a species of vice or consent.

Prof. Romero raised the question: With this common

provision in Civil Law and in Canon Law, are they
going to have a provision in the Family Code to the
effect that marriages annulled or declared void by
the church on the ground of psychological incapacity
is automatically annulled in Civil Law? The other
members replied negatively.

Dean Gupit read what Bishop Cruz said on the

matter in the minutes of their February 9, 1984
meeting:
"On the third ground, Bishop
Cruz indicated that the phrase
"psychological or mental
impotence" is an invention of
some churchmen who are
moralists but not canonists, that
is why it is considered a weak
phrase. He said that the Code of
Canon Law would rather
express it as "psychological or
mental incapacity to discharge . .
."

Justice Puno formulated the next Article as follows:

Art. 37. A marriage contracted by
any party who, at the time of the
celebration, was psychologically
incapacitated, to comply with the
essential obligations of marriage
shall likewise be void from the
beginning even if such
incapacity becomes manifest
after its solemnization.
Justice Caguioa suggested that "even if" be
substituted with "although." On the other hand, Prof.
Bautista proposed that the clause "although such

Justice Caguioa remarked that they deleted the

word "mental" precisely to distinguish it from vice of
consent. He explained that "psychological
incapacity" refers to lack of understanding of the
essential obligations of marriage.
Justice Puno reminded the members that, at the last
meeting, they have decided not to go into the
classification of "psychological incapacity" because
there was a lot of debate on it and that this is
precisely the reason why they classified it as a
special case.

Justice Puno and Prof. Romero inquired if Article 37

should be retroactive or prospective in application.
Justice Diy opined that she was for its retroactivity
because it is their answer to the problem of church
annulments of marriages, which are still valid under
the Civil Law. On the other hand, Justice Reyes and
Justice Puno were concerned about the avalanche
of cases.
Dean Gupit suggested that they put the issue to a
vote, which the Committee approved.
The members voted as follows:
(1) Justice Reyes, Justice Puno and Prof. Romero
were for prospectivity.
(2) Justice Caguioa, Judge Diy, Dean Gupit, Prof.
Bautista and Director Eufemio were for retroactivity.
(3) Prof. Baviera abstained.
Justice Caguioa suggested that they put in the
prescriptive period of ten years within which the
action for declaration of nullity of the marriage
should be filed in court. The Committee approved
the suggestion. 7

It could well be that, in sum, the Family Code Revision Committee in

ultimately deciding to adopt the provision with less specificity than
expected, has in fact, so designed the law as to allow some resiliency in
its application. Mme. Justice Alicia V. Sempio-Diy, a member of the Code
Committee, has been quoted by Mr. Justice Josue N. Bellosillo in Salita
vs. Hon. Magtolis (G.R. No. 106429, 13 June 1994); thus: 8
The Committee did not give any examples of
psychological incapacity for fear that the giving of
examples would limit the applicability of the
provision under the principle of ejusdem generis.
Rather, the Committee would like the judge to
interpret the provision on a case-to-case basis,
guided by experience, the findings of experts and
researchers in psychological disciplines, and by
decisions of church tribunals which, although not
binding on the civil courts, may be given persuasive
effect since the provision was taken from Canon
Law.
A part of the provision is similar to Canon 1095 of the New Code of
Canon Law, 9 which reads:
Canon 1095. They are incapable of contracting
marriage:
1. who lack sufficient use of reason;
2. who suffer from a grave defect of discretion of
judgment concerning essentila matrimonial rights
and duties, to be given and accepted mutually;
3. who for causes of psychological nature are
unable to assume the essential obligations of
marriage. (Emphasis supplied.)
Accordingly, although neither decisive nor even perhaps all that
persuasive for having no juridical or secular effect, the jurisprudence
under Canon Law prevailing at the time of the code's enactment,
nevertheless, cannot be dismissed as impertinent for its value as an aid,
at least, to the interpretation or construction of the codal provision.

One author, Ladislas Orsy, S.J., in his treaties, 10 giving an account on

how the third paragraph of Canon 1095 has been framed, states:
The history of the drafting of this canon does not
leave any doubt that the legislator intended, indeed,
to broaden the rule. A strict and narrow norm was
proposed first:
Those who cannot assume the
essential obligations of marriage
because of a grave psychosexual anomaly (ob gravem
anomaliam psychosexualem)
are unable to contract marriage
(cf. SCH/1975, canon 297, a
new canon, novus);
then a broader one followed:
. . . because of a grave psychological anomaly (ob
gravem anomaliam psychicam) . . . (cf. SCH/1980,
canon 1049);
then the same wording was retained in the text
submitted to the pope (cf. SCH/1982, canon 1095,
3);
finally, a new version was promulgated:
because of causes of a psychological nature (ob
causas naturae psychiae).
So the progress was from psycho-sexual to
psychological anomaly, then the term anomaly was
altogether eliminated. it would be, however, incorrect
to draw the conclusion that the cause of the
incapacity need not be some kind of psychological
disorder; after all, normal and healthy person should
be able to assume the ordinary obligations of
marriage.

Fr. Orsy concedes that the term "psychological incapacity" defies any
precise definition since psychological causes can be of an infinite
variety.
In a book, entitled "Canons and Commentaries on Marriage," written by
Ignatius Gramunt, Javier Hervada and LeRoy Wauck, the following
explanation appears:
This incapacity consists of the following: (a) a
true inability to commit oneself to the essentials of
marriage. Some psychosexual disorders and other
disorders of personality can be the psychic cause of
this defect, which is here described in legal terms.
This particular type of incapacity consists of a
real inability to render what is due by the contract.
This could be compared to the incapacity of a farmer
to enter a binding contract to deliver the crops which
he cannot possibly reap; (b) this inability to commit
oneself must refer to the essential obligations of
marriage: the conjugal act, the community of life and
love, the rendering of mutual help, the procreation
and education of offspring; (c) the inability must be
tantamount to a psychological abnormality. The
mere difficulty of assuming these obligations, which
could be overcome by normal effort, obviously does
not constitute incapacity. The canon contemplates a
true psychological disorder which incapacitates a
person from giving what is due (cf. John Paul II,
Address to R. Rota, Feb. 5, 1987). However, if the
marriage is to be declared invalid under this
incapacity, it must be proved not only that the person
is afflicted by a psychological defect, but that the
defect did in fact deprive the person, at the moment
of giving consent, of the ability to assume the
essential duties of marriage and consequently of the
possibility of being bound by these duties.
Justice Sempio-Diy 11 cites with approval the work of Dr. Gerardo
Veloso, a former Presiding Judge of the Metropolitan Marriage Tribunal
of the Catholic Archdiocese of Manila (Branch 1), who opines that
psychological incapacity must be characterized by (a) gravity, (b)
juridical antecedence, and (c) incurability. The incapacity must be grave
or serious such that the party would be incapable of carrying out the
ordinary duties required in marriage; it must be rooted in the history of

the party antedating the marriage, although the overt manifestations

may emerge only after the marriage; and it must be incurable or, even if
it were otherwise, the cure would be beyond the means of the party
involved.
It should be obvious, looking at all the foregoing disquisitions, including,
and most importantly, the deliberations of the Family Code Revision
Committee itself, that the use of the phrase "psychological incapacity"
under Article 36 of the Code has not been meant to comprehend all such
possible cases of psychoses as, likewise mentioned by some
ecclesiastical authorities, extremely low intelligence, immaturity, and like
circumstances (cited in Fr. Artemio Baluma's "Void and Voidable
Marriages in the Family Code and their Parallels in Canon Law," quoting
from the Diagnostic Statistical Manual of Mental Disorder by the
American Psychiatric Association; Edward Hudson's "Handbook II for
Marriage Nullity Cases"). Article 36 of the Family Code cannot be taken
and construed independently of, but must stand in conjunction with,
existing precepts in our law on marriage. Thus correlated, "psychological
incapacity" should refer to no less than a mental (not physical)
incapacity that causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and discharged by the
parties to the marriage which, as so expressed by Article 68 of the
Family Code, include their mutual obligations to live together, observe
love, respect and fidelity and render help and support. There is hardly
any doubt that the intendment of the law has been to confine the
meaning of "psychological incapacity" to the most serious cases of
personality disorders clearly demonstrative of an utter intensitivity or
inability to give meaning and significance to the marriage. This
pschologic condition must exist at the time the marriage is celebrated.
The law does not evidently envision, upon the other hand, an inability of
the spouse to have sexual relations with the other. This conclusion is
implicit under Article 54 of the Family Code which considers children
conceived prior to the judicial declaration of nullity of the void marriage
to be "legitimate."
The other forms of psychoses, if existing at the inception of marriage,
like the state of a party being of unsound mind or concealment of drug
addiction, habitual alcoholism, homosexuality or lesbianism, merely
renders the marriage contract voidable pursuant to Article 46, Family
Code. If drug addiction, habitual alcholism, lesbianism or homosexuality
should occur only during the marriage, they become mere grounds for
legal separation under Article 55 of the Family Code. These provisions
of the Code, however, do not necessarily preclude the possibility of
these various circumstances being themselves, depending on the
degree and severity of the disorder, indicia of psychological incapacity.

Until further statutory and jurisprudential parameters are established,

every circumstance that may have some bearing on the degree, extent,
and other conditions of that incapacity must, in every case, be carefully
examined and evaluated so that no precipitate and indiscriminate nullity
is peremptorily decreed. The well-considered opinions of psychiatrists,
psychologists, and persons with expertise in psychological disciplines
might be helpful or even desirable.
Marriage is not an adventure but a lifetime commitment. We should
continue to be reminded that innate in our society, then enshrined in our
Civil Code, and even now still indelible in Article 1 of the Family Code, is
that
Art. 1. Marriage is a special contract of permanent
union between a man a woman entered into in
accordance with law for the establishment of
conjugal and family life. It is the foundation of the
family and an inviolable social institution whose
nature, consequences, and incidents are governed
by law and not subject to stipulation, except that
marriage settlements may fix the property relations
during the marriage within the limits provided by this
Code. (Emphasis supplied.)
Our Constitution is no less emphatic:
Sec. 1. The State recognizes the Filipino family as
the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its total
development.
Sec. 2. Marriage, as an inviolable social institution,
is the foundation of the family and shall be protected
by the State. (Article XV, 1987 Constitution).
The above provisions express so well and so distinctly the basic nucleus
of our laws on marriage and the family, and they are doubt the tenets we
still hold on to.
The factual settings in the case at bench, in no measure at all, can come
close to the standards required to decree a nullity of marriage.
Undeniably and understandably, Leouel stands aggrieved, even
desperate, in his present situation. Regrettably, neither law nor society

itself can always provide all the specific answers to every individual
problem.
WHEREFORE, the petition is DENIED.
G.R. No. 108763 February 13, 1997
REPUBLIC OF THE PHILIPPINES,
vs.
COURT OF APPEALS and RORIDEL OLAVIANO
MOLINA, respondents.

PANGANIBAN, J.:
The Family Code of the Philippines provides an entirely new
ground (in addition to those enumerated in the Civil Code) to assail
the validity of a marriage, namely, "psychological incapacity."
Since the Code's effectivity, our courts have been swamped with
various petitions to declare marriages void based on this ground.
Although this Court had interpreted the meaning of psychological
incapacity in the recent case of Santos vs. Court of Appeals, still
many judges and lawyers find difficulty in applying said novel
provision in specific cases. In the present case and in the context
of the herein assailed Decision of the Court of Appeals, the
Solicitor General has labelled exaggerated to be sure but
nonetheless expressive of his frustration Article 36 as the "most
liberal divorce procedure in the world." Hence, this Court in
addition to resolving the present case, finds the need to lay down
specific guidelines in the interpretation and application of Article
36 of the Family Code.
Before us is a petition for review on certiorari under Rule 45
challenging the January 25, 1993 Decision 1 of the Court of
Appeals 2 in CA-G.R. CV No. 34858 affirming in toto the May 14,
1991 decision of the Regional Trial Court of La Trinidad, 3 Benguet,
which declared the marriage of respondent Roridel Olaviano Molina
to Reynaldo Molina void ab initio, on the ground of "psychological
incapacity" under Article 36 of the Family Code.
The Facts

This case was commenced on August 16, 1990 with the filing by
respondent Roridel O. Molina of a verified petition for declaration
of nullity of her marriage to Reynaldo Molina. Essentially, the
petition alleged that Roridel and Reynaldo were married on April
14, 1985 at the San Agustin Church 4 in Manila; that a son, Andre O.
Molina was born; that after a year of marriage, Reynaldo showed
signs of "immaturity and irresponsibility" as a husband and a
father since he preferred to spend more time with his peers and
friends on whom he squandered his money; that he depended on
his parents for aid and assistance, and was never honest with his
wife in regard to their finances, resulting in frequent quarrels
between them; that sometime in February 1986, Reynaldo was
relieved of his job in Manila, and since then Roridel had been the
sole breadwinner of the family; that in October 1986 the couple had
a very intense quarrel, as a result of which their relationship was
estranged; that in March 1987, Roridel resigned from her job in
Manila and went to live with her parents in Baguio City; that a few
weeks later, Reynaldo left Roridel and their child, and had since
then abandoned them; that Reynaldo had thus shown that he was
psychologically incapable of complying with essential marital
obligations and was a highly immature and habitually quarrel some
individual who thought of himself as a king to be served; and that it
would be to the couple's best interest to have their marriage
declared null and void in order to free them from what appeared to
be an incompatible marriage from the start.
In his Answer filed on August 28, 1989, Reynaldo admitted that he
and Roridel could no longer live together as husband and wife, but
contended that their misunderstandings and frequent quarrels
were due to (1) Roridel's strange behavior of insisting on
maintaining her group of friends even after their marriage; (2)
Roridel's refusal to perform some of her marital duties such as
cooking meals; and (3) Roridel's failure to run the household and
handle their finances.
During the pre-trial on October 17, 1990, the following were
stipulated:
1. That the parties herein were legally married on
April 14, 1985 at the Church of St. Augustine,
Manila;

2. That out of their marriage, a child named

Albert Andre Olaviano Molina was born on July
29, 1986;
3. That the parties are separated-in-fact for more
than three years;
4. That petitioner is not asking support for her
and her child;
5. That the respondent is not asking for
damages;
6. That the common child of the parties is in the
custody of the petitioner wife.
Evidence for herein respondent wife consisted of her own
testimony and that of her friends Rosemarie Ventura and Maria
Leonora Padilla as well as of Ruth G. Lalas, a social worker, and of
Dr. Teresita Hidalgo-Sison, a psychiatrist of the Baguio General
Hospital and Medical Center. She also submitted documents
marked as Exhibits "A" to "E-1." Reynaldo did not present any
evidence as he appeared only during the pre-trial conference.
On May 14, 1991, the trial court rendered judgment declaring the
marriage void. The appeal of petitioner was denied by the Court of
Appeals which affirmed in toto the RTC's decision. Hence, the
present recourse.
The Issue
In his petition, the Solicitor General insists that "the Court of
Appeals made an erroneous and incorrect interpretation of the
phrase 'psychological incapacity' (as provided under Art. 36 of the
Family Code) and made an incorrect application thereof to the facts
of the case," adding that the appealed Decision tended "to
establish in effect the most liberal divorce procedure in the world
which is anathema to our culture."
In denying the Solicitor General's appeal, the respondent Court
relied 5 heavily on the trial court's findings "that the marriage
between the parties broke up because of their opposing and
conflicting personalities." Then, it added it sown opinion that "the

Civil Code Revision Committee (hereinafter referred to as

Committee) intended to liberalize the application of our civil laws
on personal and family rights. . . ." It concluded that:
As ground for annulment of marriage, We view
psychologically incapacity as a broad range of
mental and behavioral conduct on the part of
one spouse indicative of how he or she regards
the marital union, his or her personal
relationship with the other spouse, as well as his
or her conduct in the long haul for the attainment
of the principal objectives of marriage. If said
conduct, observed and considered as a whole,
tends to cause the union to self-destruct
because it defeats the very objectives of
marriage, then there is enough reason to leave
the spouses to their individual fates.
In the case at bar, We find that the trial judge
committed no indiscretion in analyzing and
deciding the instant case, as it did, hence, We
find no cogent reason to disturb the findings and
conclusions thus made.
Respondent, in her Memorandum, adopts these discussions of the
Court of Appeals.
The petitioner, on the other hand, argues that "opposing and
conflicting personalities" is not equivalent to psychological
incapacity, explaining that such ground "is not simply
the neglect by the parties to the marriage of their responsibilities
and duties, but a defect in their psychological nature which renders
them incapable of performing such marital responsibilities and
duties."
The Court's Ruling
The petition is meritorious.
In Leouel Santos vs. Court of Appeals 6 this Court, speaking thru
Mr. Justice Jose C. Vitug, ruled that "psychological incapacity
should refer to no less than a mental (nor physical) incapacity . . .
and that (t)here is hardly any doubt that the intendment of the law

has been to confine the meaning of 'psychological incapacity' to

the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability to give meaning
and significance to the marriage. This psychologic condition must
exist at the time the marriage is celebrated." Citing Dr. Gerardo
Veloso, a former presiding judge of the Metropolitan Marriage
Tribunal of the Catholic Archdiocese of Manila, 7 Justice Vitug
wrote that "the psychological incapacity must be characterized by
(a) gravity, (b) juridical antecedence, and (c) incurability."
On the other hand, in the present case, there is no clear showing to
us that the psychological defect spoken of is an incapacity. It
appears to us to be more of a "difficulty," if not outright "refusal" or
"neglect" in the performance of some marital obligations. Mere
showing of "irreconciliable differences" and "conflicting
personalities" in no wise constitutes psychological incapacity. It is
not enough to prove that the parties failed to meet their
responsibilities and duties as married persons; it is essential that
they must be shown to be incapable of doing so, due to some
psychological (nor physical) illness.
The evidence adduced by respondent merely showed that she and
her husband could nor get along with each other. There had been
no showing of the gravity of the problem; neither its juridical
antecedence nor its incurability. The expert testimony of Dr. Sison
showed no incurable psychiatric disorder but only incompatibility,
not psychological incapacity. Dr. Sison testified: 8
COURT
Q It is therefore the
recommendation of the
psychiatrist based on your
findings that it is better for the
Court to annul (sic) the
marriage?
A Yes, Your Honor.
Q There is no hope for the
marriage?

A There is no hope, the man is

also living with another
woman.
Q Is it also the stand of the
psychiatrist that the parties
are psychologically unfit for
each other but they are
psychologically fit with other
parties?
A Yes, Your Honor.
Q Neither are they
psychologically unfit for their
professions?
A Yes, Your Honor.
The Court
has no
more
questions.
In the case of Reynaldo, there is no showing that his alleged
personality traits were constitutive of psychological incapacity
existing at the time of marriage celebration. While some effort was
made to prove that there was a failure to fulfill pre-nuptial
impressions of "thoughtfulness and gentleness" on Reynaldo's
part of being "conservative, homely and intelligent" on the part of
Roridel, such failure of expectation is nor indicative of antecedent
psychological incapacity. If at all, it merely shows love's temporary
blindness to the faults and blemishes of the beloved.
During its deliberations, the Court decided to go beyond merely
ruling on the facts of this case vis-a-vis existing law and
jurisprudence. In view of the novelty of Art. 36 of the Family Code
and the difficulty experienced by many trial courts interpreting and
applying it, the Court decided to invite two amici curiae, namely,
the Most Reverend Oscar V. Cruz, 9 Vicar Judicial (Presiding Judge)
of the National Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, and Justice Ricardo C. Puno, 10 a
member of the Family Code Revision Committee. The Court takes

this occasion to thank these friends of the Court for their

informative and interesting discussions during the oral argument
on December 3, 1996, which they followed up with written
memoranda.
From their submissions and the Court's own deliberations, the
following guidelines in the interpretation and application of Art. 36
of the Family Code are hereby handed down for the guidance of the
bench and the bar:
(1) The burden of proof to show the nullity of the marriage belongs
to the plaintiff. Any doubt should be resolved in favor of the
existence and continuation of the marriage and against its
dissolution and nullity. This is rooted in the fact that both our
Constitution and our laws cherish the validity of marriage and unity
of the family. Thus, our Constitution devotes an entire Article on
the Family, 11 recognizing it "as the foundation of the nation." It
decrees marriage as legally "inviolable," thereby protecting it from
dissolution at the whim of the parties. Both the family and marriage
are to be "protected" by the state.
The Family Code 12 echoes this constitutional edict on marriage
and the family and emphasizes thepermanence,
inviolability and solidarity
(2) The root cause of the psychological incapacity must be (a)
medically or clinically identified, (b) alleged in the complaint, (c)
sufficiently proven by experts and (d) clearly explained in the
decision. Article 36 of the Family Code requires that the incapacity
must be psychological not physical. although its manifestations
and/or symptoms may be physical. The evidence must convince
the court that the parties, or one of them, was mentally or
physically ill to such an extent that the person could not have
known the obligations he was assuming, or knowing them, could
not have given valid assumption thereof. Although no example of
such incapacity need be given here so as not to limit the
application of the provision under the principle of ejusdem
generis, 13 nevertheless such root cause must be identified as a
psychological illness and its incapacitating nature explained.
Expert evidence may be given qualified psychiatrist and clinical
psychologists.
(3) The incapacity must be proven to be existing at "the time of the
celebration" of the marriage. The evidence must show that the

illness was existing when the parties exchanged their "I do's." The
manifestation of the illness need not be perceivable at such time,
but the illness itself must have attached at such moment, or prior
thereto.
(4) Such incapacity must also be shown to be medically or
clinically permanent or incurable. Such incurability may be
absolute or even relative only in regard to the other spouse, not
necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the assumption
of marriage obligations, not necessarily to those not related to
marriage, like the exercise of a profession or employment in a job.
Hence, a pediatrician may be effective in diagnosing illnesses of
children and prescribing medicine to cure them but may not be
psychologically capacitated to procreate, bear and raise his/her
own children as an essential obligation of marriage.
(5) Such illness must be grave enough to bring about the disability
of the party to assume the essential obligations of marriage. Thus,
"mild characteriological peculiarities, mood changes, occasional
emotional outbursts" cannot be accepted as root causes. The
illness must be shown as downright incapacity or inability, nor a
refusal, neglect or difficulty, much less ill will. In other words, there
is a natal or supervening disabling factor in the person, an adverse
integral element in the personality structure that effectively
incapacitates the person from really accepting and thereby
complying with the obligations essential to marriage.
(6) The essential marital obligations must be those embraced by
Articles 68 up to 71 of the Family Code as regards the husband and
wife as well as Articles 220, 221 and 225 of the same Code in regard
to parents and their children. Such non-complied marital
obligation(s) must also be stated in the petition, proven by
evidence and included in the text of the decision.
(7) Interpretations given by the National Appellate Matrimonial
Tribunal of the Catholic Church in the Philippines, while not
controlling or decisive, should be given great respect by our
courts. It is clear that Article 36 was taken by the Family Code
Revision Committee from Canon 1095 of the New Code of Canon
Law, which became effective in 1983 and which provides:
The following are incapable of contracting
marriage: Those who are unable to assume the

essential obligations of marriage due to causes

of psychological nature. 14
Since the purpose of including such provision in our Family Code
is to harmonize our civil laws with the religious faith of our people,
it stands to reason that to achieve such harmonization, great
persuasive weight should be given to decision of such appellate
tribunal. Ideally subject to our law on evidence what is
decreed as canonically invalid should also be decreed civilly void.
This is one instance where, in view of the evident source and
purpose of the Family Code provision, contemporaneous religious
interpretation is to be given persuasive effect. Here, the State and
the Church while remaining independent, separate and apart
from each other shall walk together in synodal cadence towards
the same goal of protecting and cherishing marriage and the family
as the inviolable base of the nation.
(8) The trial court must order the prosecuting attorney or fiscal and
the Solicitor General to appear as counsel for the state. No
decision shall he handed down unless the Solicitor General issues
a certification, which will be quoted in the decision, briefly staring
therein his reasons for his agreement or opposition, as the case
may be, to the petition. The Solicitor General, along with the
prosecuting attorney, shall submit to the court such certification
within fifteen (15) days from the date the case is deemed submitted
for resolution of the court. The Solicitor General shall discharge
the equivalent function of the defensor vinculi contemplated under
Canon 1095.
In the instant case and applying Leouel Santos, we have already
ruled to grant the petition. Such ruling becomes even more cogent
with the use of the foregoing guidelines.
WHEREFORE, the petition is GRANTED. The assailed Decision is
REVERSED and SET ASIDE. The marriage of Roridel Olaviano to
Reynaldo Molina subsists and remains valid.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Bellosillo, Melo, Puno Francisco,
Hermosisima, Jr., and Torres, Jr., JJ., concur.

Regalado, Kapunan and Mendoza, JJ., concurs in the result.

Separate Opinions

PADILLA, J., concuring opinion:

I concur in the result of the decision penned by Mr. Justice
Panganiban but only because of the peculiar facts of the case. As
to whether or not the psychological incapacity exists in a given
case calling for annulment of a marriage, depends crucially, more
than in any field of the law, on the facts of the case. In Leouel
Santos v. Court of Appeals and Julia Rosario-Bedia Santos, G.R.
No. 112019, 4 January 1995, 240 SCRA 20-36, I maintained, and I
still maintain, that there was psychological incapacity on the part of
the wife to discharge the duties of a wife in a valid marriage. The
facts of the present case, after an indepth study, do not support a
similar conclusion. Obviously, each case must be judged, not on
the basis of a priori assumptions, predilections or generalizations
but according to its own facts. In the field of psychological
incapacity as a ground for annulment of marriage, it is trite to say
that no case is on "all fours" with another case. The trial judge
must take pains in examining the actual millieu and the appellate
court must, as much as possible, avoid substituting its own
judgment for that of the trial court.
ROMERO, J., separate opinion:
The majority opinion, overturning that of the Court of Appeals
which affirmed the Regional Trial Court ruling. upheld petitioner
Solicitor General's position that "opposing and conflicting
personalities" is not equivalent to psychological incapacity, for the
latter "is not simply the neglect by the parties to the marriage of
their responsibilities and duties, but a defect in their Psychological
nature which renders them incapable of performing such marital
responsibilities and duties.

In the present case, the alleged personality traits of Reynaldo, the

husband, did not constitute so much "psychological incapacity" as
a "difficulty," if not outright "refusal" or "neglect" in the
performance of some marital obligations. "It is not enough to prove
that the parties failed to meet their responsibilities and duties as
married persons; it is essential that they must be shown to
be incapableof doing so, due to some psychological (not physical)
illness."
I would add that neither should the incapacity be the result of
mental illness. For if it were due to insanity or defects in the mental
faculties short of insanity, there is a resultant defect of vice of
consent, thus rendering the marriage annulable under Art. 45 of the
Family Code.
That the intent of the members of the U.P. Law Center's Civil Code
Revision Committee was to excludemental inability to understand
the essential nature of marriage and focus strictly on psychological
incapacity is demonstrated in the way the provision in question
underwent revisions.
At the Committee meeting of July 26, 1986, the draft provision read:
(7) Those marriages contracted by any party
who, at the time of the celebration, was wanting
in the sufficient use of reason or judgment to
understand the essential nature of marriage or
was psychologically or mentally incapacitated to
discharge the essential marital obligations, even
if such lack of incapacity is made manifest after
the celebration.
The twists and turns which the ensuing discussion took finally
produced the following revised provision even before the session
was over:
(7) That contracted by any party who, at the time
of the celebration, was psychologically
incapacitated to discharge the essential marital
obligations, even if such lack or incapacity
becomes manifest after the celebration.

Noticeably, the immediately preceding formulation above has

dropped any reference to "wanting in the sufficient use of reason
or judgment to understand the essential nature or marriage" and to
"mentally incapacitated." It was explained that these phrases refer
to "defects in the mental faculties vitiating consent, which is not
the idea . . . but lack of appreciation of one's marital obligation."
There being a defect in consent, "it is clear that it should be a
ground for voidable marriage because there is the appearance of
consent and it is capable of convalidation for the simple reason
that there are lucid intervals and there are sanity is curable. . . .
Psychological incapacity does not refer to mental faculties and has
nothing to do with consent; it refers to obligations attendant to
marriage." 1
My own position as a member of the Committee then was that
psychological incapacity is, in a sense, insanity of a lesser degree.
As to the proposal of Justice Caguioa to use the term
"psychological or mental impotence," Archbishop Oscar Cruz
opined in he earlier February 9, 1984 session that this term "is an
invention of some churchmen who are moralists but not canonists,
that is why it is considered a weak phrase." He said that the Code
of Canon Law would rather express it as "psychological or mental
incapacity to discharge. . . ." Justice Ricardo C. Puno opined that
sometimes a person may be psychologically impotent with one but
not with another.
One of the guidelines enumerated in the majority opinion for the
interpretation and application of Art. 36 is: "Such incapacity must
also be shown to be medically or clinically permanent or incurable.
Such incurability may be absolute or even relative only in regard to
the other spouse, not necessarily absolutely against everyone of
the same sex."
The Committee, through Prof. Araceli T. Barrera, considered the
inclusion of the phrase" and is incurable" but Prof. Esteban B.
Bautista commented that this would give rise to the question of
how they will determine curability and Justice Caguioa agreed that
it would be more problematic. Yet the possibility that one may be
cured after the psychological incapacity becomes manifest after
the marriage was not ruled out by Justice Puno and Justice Alice
Sempio-Diy. Justice Caguioa suggested that the remedy was to
allow the afflicted spouse to remarry.

For clarity, the Committee classified the bases for determining void
marriages, viz:
1. lack of one or more of the
essential requisites of
marriage as contract;
2. reasons of public policy;
3. special cases and special
situations.
The ground of psychological incapacity was subsumed
under "special cases and special situations," hence its
special treatment in Art. 36 in the Family Code as finally
enacted.
Nowhere in the Civil Code provisions on Marriage is there a ground
for avoiding or annulling marriages that even comes close to being
psychological in nature.
Where consent is vitiated due to circumstances existing at the time
of the marriage, such marriage which stands valid until annulled is
capable of ratification or convalidation.
On the other hand, for reasons of public policy or lack of essential
requisites, some marriages are void from the beginning.
With the revision of Book I of the Civil Code, particularly the
provisions on Marriage, the drafters, now open to fresh winds of
change in keeping with the more permissive mores and practices
of the time, took a leaf from the relatively liberal provisions of
Canon Law.
Canon 1095 which states, inter alia, that the following persons are
incapable of contracting marriage: "3. (those) who, because of
causes of a psychological nature, are unable to assume the
essential obligations of marriage" provided the model for what is
now Art. 36 of the Family Code: "A marriage contracted by any
party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity becomes
manifest only after its solemnization.

It bears stressing that unlike in Civil Law, Canon Law recognizes

only two types of marriages with respect to their validity: valid and
void. Civil Law, however, recognizes an intermediate state, the
voidable or annullable marriages. When the Ecclesiastical Tribunal
"annuls" a marriage, it actually declares the marriage null and
void, i.e., it never really existed in the first place, for a valid
sacramental marriage can never be dissolved. Hence, a properly
performed and consummated marriage between two living Roman
Catholics can only be nullified by the formal annulment process
which entails a full tribunal procedure with a Court selection and a
formal hearing.
Such so-called church "annulments" are not recognized by Civil
Law as severing the marriage ties as to capacitate the parties to
enter lawfully into another marriage. The grounds for nullifying civil
marriage, not being congruent with those laid down by Canon Law,
the former being more strict, quite a number of married couples
have found themselves in limbo freed from the marriage bonds
in the eyes of the Catholic Church but yet unable to contract a valid
civil marriage under state laws. Heedless of civil law sanctions,
some persons contract new marriages or enter into live-in
relationships.
It was precisely to provide a satisfactory solution to such
anomalous situations that the Civil Law Revision Committee
decided to engraft the Canon Law concept of psychological
incapacity into the Family Code and classified the same as a
ground for declaring marriages void ab initio or totally in existent
from the beginning.
A brief historical note on the Old Canon Law (1917). This Old Code,
while it did not provide directly for psychological incapacity, in
effect recognized the same indirectly from a combination of three
old canons: "Canon #1081 required persons to 'be capable
according to law' in order to give valid consent; Canon #1082
required that persons 'be at least not ignorant' of the major
elements required in marriage; and Canon #1087 (the force and fear
category) required that internal and external freedom be present in
order for consent to be valid. This line of interpretation produced
two distinct but related grounds for annulment, called 'lack of due
discretion' and 'lack of due competence.' Lack of due discretion
means that the person did not have the ability to give valid consent
at the time of the weddingand therefore the union is invalid. Lack of
due competence means that the person was incapable of carrying

out the obligations of the promise he or she made during the

wedding ceremony.
"Favorable annulment decisions by the Roman Rota in the 1950s
and 1960s involving sexual disorders such as homosexuality and
nymphomania laid the foundation for a broader approach to the
kind of proof necessary for psychological grounds for annulment.
The Rota had reasoned for the first time in several cases that the
capacity to give valid consent at the time of marriage was probably
not present in persons who had displayed such problems shortly
after the marriage. The nature of this change was nothing short of
revolutionary. Once the Rota itself had demonstrated a cautious
willingness to use this kind of hindsight, the way was paved for
what came after 1970. Diocesan Tribunals began to accept proof of
serious psychological problems that manifested themselves
shortly after the ceremony as proof of an inability to give valid
consent at the time of the ceremony.
Furthermore, and equally significant, the professional opinion of a
psychological expert became increasingly important in such
cases. Data about the person's entire life, both before and after the
ceremony, were presented to these experts and they were asked to
give professional opinions about a party's mental at the time of the
wedding. These opinions were rarely challenged and tended to be
accepted as decisive evidence of lack of valid consent.
The Church took pains to point out that its new openness in this
area did not amount to the addition of new grounds for annulment,
but rather was an accommodation by the Church to the advances
made in psychology during the past decades. There was now the
expertise to provide the all-important connecting link between a
marriage breakdown and premarital causes.
During the 1970s, the Church broadened its whole idea of marriage
from that of a legal contract to that of a covenant. The result of this
was that it could no longer be assumed in annulment cases that a
person who could intellectually understand the concept of
marriage could necessarily give valid consent to marry. The ability
to both grasp and assume the real obligations of a mature, lifelong
commitment are now considered a necessary prerequisite to valid
matrimonial consent. 2
Rotal decisions continued applying the concept of incipient
psychological incapacity, "not only to sexual anomalies but to all

kinds of personality disorders that incapacitate a spouse or both

spouses from assuming or carrying out the essential obligations of
marriage. For marriage . . . is not merely cohabitation or the right of
the spouses to each others' body for heterosexual acts, but is, in
its totality, the right to the community of the whole of life, i.e., the
right to a developing. lifelong relationship. Rotal decisions since
1973 have refined the meaning of psychological or psychic
capacity for marriage as presupposing the development of an adult
personality; as meaning the capacity of the spouses to give
themselves to each other and to accept the other as a distinct
person; that the spouses must be 'other oriented' since the
obligations of marriage are rooted in a self-giving love; and that the
spouses must have the capacity for interpersonal
relationship because marriage is more than just a physical reality
but involves a true intertwining of personalities. The fulfillment of
the obligations of marriage depends. according to Church
decisions, on the strength of this interpersonal relationship. A
serious incapacity for interpersonal sharing and support is held to
impair the relationship and consequently, the ability to fulfill the
essential marital obligations. The marital capacity of one spouse is
not considered in isolation but in reference to the fundamental
relationship to the other spouse. 3
Fr. Green, in an article in Catholic Mind, lists six elements
necessary to the mature marital relationship:
The courts consider the following elements
crucial to the marital commitment: (1) a
permanent and faithful commitment to the
marriage partner; (2) openness to children and
partner; (3) stability; (4) emotional maturity; (5)
financial responsibility; (6) an ability to cope with
the ordinary stresses and strains of marriage,
etc.
Fr. Green goes on to speak about some of the
psychological conditions that might lead to the
failure of a marriage:
At stake is a type of constitutional impairment
precluding conjugal communion even with the
best intentions of the parties. Among the
psychic factors possibly giving rise to his or her
inability to fulfill marital obligations are the

following: (1) antisocial personality with its

fundamental lack of loyalty to persons or sense
of moral values; (2) hyperesthesia, where the
individual has no real freedom of sexual choice;
(3) the inadequate personality where personal
responses consistently fallshort of reasonable
expectations.
xxx xxx xxx
The psychological grounds are the best
approach for anyone who doubts whether he or
she has a case for an annulment on any other
terms. A situation that does not fit into any of the
more traditional categories often fits very easily
into the psychological category.
As new as the psychological grounds are,
experts are already detecting a shift in their use.
Whereas originally the emphasis was on the
parties' inability to exercise proper judgment at
the time of the marriage (lack of due discretion),
recent cases seem to be concentratingon the
parties' to assume or carry out their
responsibilities an obligations as promised (lack
of due competence). An advantage to using the
ground of lack of due competence is that the at
the time the marriage was entered into civil
divorce and breakup of the family almost is of
someone's failure out marital responsibilities as
promised at the time the marriage was entered
into. 4
In the instant case, "opposing and conflicting personalities" of the
spouses were not considered equivalent to psychological
incapacity. As well in Santos v. Court of Appeals cited in
the ponencia, the Court held that the failure of the wife to return
home from the U.S. or to communicate with her husband for more
then five years is not proof of her psychological incapacity as to
render the marriage a nullity. 5 Therefore, Art. 36 is inapplicable and
the marriages remain valid and subsisting.
However in the recent case of Chi Ming Tsoi v. Court of
Appeals, 6 this Court upheld both the Regional Trial Court and the

Court of Appeals in declaring the presence of psychological

incapacity on the part of the husband. Said petitioner husband,
after ten (10) months' sleeping with his wife never had coitus with
her, a fact he did not deny but he alleged that it was due to the
physical disorder of his wife which, however, he failed to prove.
Goaded by the indifference and stubborn refusal of her husband to
fulfill a basic marital obligation described as "to procreate children
based on the universal principle that procreation of children
through sexual cooperation is the basic end of marriage," the wife
brought the action in the lower court to declare the marriage null.
The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of
the Metropolitan Marriage Tribunal of the Catholic Archdiocese of
Manila (Branch I) on Psychological incapacity concluded:
If a spouse, although physically capable but
simply refuses to perform his or her essential
marriage obligations, and the refusal is
senseless and constant, Catholic marriage
tribunals attribute the causes to psychological
incapacity than to stubborn refusal.Senseless
and protracted refusal is equivalent to
psychological incapacity. Thus, the prolonged
refusal of a spouse to have sexual intercourse
with his or her spouse is considered a sign of
psychological incapacity.
We declared:

I fully concur with my esteemed 'colleague Mr. Justice Artemio V.

Panganiban in his ponencia, and I find to be most helpful the
guidelines that he prepared for the bench and the bar in the proper
appreciation of Article 36 of Executive Order No. 209 ("The Family
Code of the Philippines"). The term "psychological incapacity" was
neither defined nor exemplified by the Family Code. Thus
Art. 36. A marriage contracted by any party who,
at the time of the celebration, was
psychologically incapacitated to comply with the
essential marital obligations of marriage, shall
likewise be void even if such incapacity
becomes manifest only after its solemnization.
The Revision Committee, constituted under the auspices
of the U.P. Law Center, which drafted the Code explained:
(T)he Committee would like the judge to interpret
the provision on a case-to-case basis, guided by
experience, the findings of experts and
researchers in psychological disciplines, and by
decisions of church tribunals which, although
not binding on the civil courts, may be given
persuasive effect since the provision was taken
from Canon Law. 1
Article 36 of the Family Code was concededly taken from Canon
1095 of the New Code of Canon Law

This Court, finding the gravity of the failed relationship in which the
parties found themselves trapped in its mire of unfulfilled vows and
unconsummated marital obligations, can do no less but sustain the
studied judgment of respondent appellate court.

Canon 1095. (The following persons) are

incapable of contracting marriage; (those)

1 concur with the majority opinion that the herein marriage remains
valid and subsisting absent psychological incapacity (under Art. 36
of the Family Code) on the part of either or both of the spouses.

2. who suffer from a grave defect of discretion of

judgment concerning essential matrimonial
rights and duties, to be given and accepted
mutually;

VITUG, J., concurring:

1. who lack sufficient use of reason;

3. who for causes of psychological nature are

unable to assume the essential obligations of
marriage

that should give that much value to Canon Law

jurisprudence as an aid to the interpretation and
construction of the statutory enactment. 2
The principles in the proper application of the law teach us that the
several provisions of a Code must be read like a congruent whole.
Thus, in determining the import of "psychological incapacity"
under Article 36, one must also read it along with, albeit to be taken
as distinct from, the other grounds enumerated in the Code, like
Articles 35, 37, 38 and 41 that would likewise, but for distinct
reasons, render the marriage merely voidable, or Article 55 that
could justify a petition for legal separation. Care must be observed
so that these various circumstances are not applied so
indiscriminately as if the law were indifferent on the matter.
I would wish to reiterate the Court's' statement in Santos vs. Court
of Appeals; 3 viz:
(T)he use of the phrase "psychological
incapacity" under Article 36 of the Code has not
been meant to comprehend all such possible
cases of psychoses as, likewise mentioned by
some ecclesiastical authorities, extremely low
intelligence, immaturity, and like
circumstances. . . Article 36 of the Family Code
cannot be taken and construed independently of,
but must stand in conjunction with, existing
precepts in our law on marriage. Thus
correlated, "psychological incapacity" should
refer to no less than a mental (not physical)
incapacity that causes a party to be truly
incognitive of the basic marital covenants that
concomitantly must be assumed and discharged
by the parties to the marriage which, as so
expressed by Article 68 of the Family Code,
include their mutual obligations to live together,
observe love, respect and fidelity and render
help and support. There is hardly any doubt that
the intendment of the law has been to confine
the meaning of "psychological incapacity" to the
most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or
inability of the spouse to have sexual relations
with the other. This conclusion is implicit under

Article 54 of the Family Code which considers

children conceived prior to the judicial
declaration of nullity of the void marriage to be
"legitimate."
The other forms of psychoses, if existing at the
inception of marriage, like the state of a party
being of unsound mind or concealment of drug
addiction, habitual alcoholism, homosexuality or
lesbianism, merely renders the marriage
contract voidable pursuant to Article 46, Family
Code. If drug addiction, habitual alcoholism,
lesbianism or homosexuality should occur only
during the marriage, they become mere grounds
for legal separation under Article 55 of the
Family Code. These provisions of the Code,
however, do not necessarily preclude the
possibility of these various circumstances being
themselves, depending on the degree and
severity of the disorder, indicia of psychological
incapacity. 4
In fine, the term "psychological incapacity," to be a ground for then
nullity of marriage under Article 36 of the Family Code, must be
able to pass the following tests; viz:
First, the incapacity must be psychological or mental, not physical,
in nature;
Second, the psychological incapacity must relate to the inability,
not mere refusal, to understand, assume end discharge the basic
marital obligations of living together, observing love, respect and
fidelity and rendering mutual help and support;
Third, the psychologic condition must exist at the time the
marriage is contracted although its overt manifestations and the
marriage may occur only thereafter; and
Fourth, the mental disorder must be grave or serious and
incurable.
It may well be that the Family Code Revision Committee has
envisioned Article 36, as not a few observers would suspect, as

another form of absolute divorce or, as still others would also put
it, to be a alternative to divorce; however, the fact still remains that
the language of the law has failed to carry out, even if true, any
such intendment. It might have indeed turned out for the better, if it
were otherwise, there could be good reasons to doubt the
constitutionality of the measure. The fundamental law itself, no
less, has laid down in terse language its unequivocal command on
how the State should regard marriage and the family, thus
Section 2, Article XV:
Sec. 2. Marriage, as an inviolable social
institution, is the foundation of the family and
shall be protected by the State.
Section 12, Article II:
Sec. 12. The State recognizes the sanctity of
family life and shall protect and strengthen the
family as a basic autonomous social
institution . . . .
Section 1, Article XV:
Sec. 1. The State recognizes the Filipino family
as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively
promote its total development. (The 1987
Constitution)
The case of Marcelino vs. Cruz, 121 SCRA 51, might here be
significant not so much for the specific issue there resolved but for
the tone it has set. The Court there has held that constitutional
provisions are to be considered mandatory unless by necessary
implication, a different intention is manifest such that to have them
enforced strictly would cause more harm than by disregarding
them. It is quite clear to me that the constitutional mandate on
marriage and the family has not been meant to be simply directory
in character, nor for mere expediency or convenience, but one that
demands a meaningful, not half-hearted, respect.

Separate Opinions
PADILLA, J., concuring opinion:
I concur in the result of the decision penned by Mr. Justice
Panganiban but only because of the peculiar facts of the case. As
to whether or not the psychological incapacity exists in a given
case calling for annulment of a marriage, depends crucially, more
than in any field of the law, on the facts of the case. In Leouel
Santos v. Court of Appeals and Julia Rosario-Bedia Santos, G.R.
No. 112019, 4 January 1995, 240 SCRA 20-36, I maintained, and I
still maintain, that there was psychological incapacity on the part
of the wife to discharge the duties of a wife in a valid marriage. The
facts of the present case, after an indepth study, do not support a
similar conclusion. Obviously, each case must be judged, not on
the basis of a priori assumptions, predilections or generalizations
but according to its own facts. In the field of psychological
incapacity as a ground for annulment of marriage, it is trite to say
that no case is on "all fours" with another case. The trial judge
must take pains in examining the actual millieu and the appellate
court must, as much as possible, avoid substituting its own
judgment for that of the trial court.
ROMERO, J., separate opinion:
The majority opinion, overturning that of the Court of Appeals
which affirmed the Regional Trial Court ruling. upheld petitioner
Solicitor General's position that "opposing and conflicting
personalities" is not equivalent to psychological incapacity, for the
latter "is not simply the neglect by the parties to the marriage of
their responsibilities and duties, but a defect in their Psychological
nature which renders them incapable of performing such marital
responsibilities and duties.
In the present case, the alleged personality traits of Reynaldo, the
husband, did not constitute so much "psychological incapacity" as
a "difficulty," if not outright "refusal" or "neglect" in the
performance of some marital obligations. "It is not enough to prove
that the parties failed to meet their responsibilities and duties as
married persons; it is essential that they must be shown to
be incapableof doing so, due to some psychological (not physical)
illness."

I would add that neither should the incapacity be the result of

mental illness. For if it were due to insanity or defects in the mental
faculties short of insanity, there is a resultant defect of vice of
consent, thus rendering the marriage annulable under Art. 45 of the
Family Code.

nothing to do with consent; it refers to obligations attendant to

marriage." 1

That the intent of the members of the U.P. Law Center's Civil Code
Revision Committee was to excludemental inability to understand
the essential nature of marriage and focus strictly on psychological
incapacity is demonstrated in the way the provision in question
underwent revisions.

As to the proposal of Justice Caguioa to use the term

"psychological or mental impotence," Archbishop Oscar Cruz
opined in he earlier February 9, 1984 session that this term "is an
invention of some churchmen who are moralists but not canonists,
that is why it is considered a weak phrase." He said that the Code
of Canon Law would rather express it as "psychological or mental
incapacity to discharge. . . ." Justice Ricardo C. Puno opined that
sometimes a person may be psychologically impotent with one but
not with another.

At the Committee meeting of July 26, 1986, the draft provision read:
(7) Those marriages contracted by any party
who, at the time of the celebration, was wanting
in the sufficient use of reason or judgment to
understand the essential nature of marriage or
was psychologically or mentally incapacitated to
discharge the essential marital obligations, even
if such lack of incapacity is made manifest after
the celebration.
The twists and turns which the ensuing discussion took finally
produced the following revised provision even before the session
was over:
(7) That contracted by any party who, at the time
of the celebration, was psychologically
incapacitated to discharge the essential marital
obligations, even if such lack or incapacity
becomes manifest after the celebration.
Noticeably, the immediately preceding formulation above has
dropped any reference to "wanting in the sufficient use of reason
or judgment to understand the essential nature or marriage" and to
"mentally incapacitated." It was explained that these phrases refer
to "defects in the mental faculties vitiating consent, which is not
the idea . . . but lack of appreciation of one's marital obligation."
There being a defect in consent, "it is clear that it should be a
ground for voidable marriage because there is the appearance of
consent and it is capable of convalidation for the simple reason
that there are lucid intervals and there are sanity is curable. . . .
Psychological incapacity does not refer to mental faculties and has

My own position as a member of the Committee then was that

psychological incapacity is, in a sense, insanity of a lesser degree.

One of the guidelines enumerated in the majority opinion for the

interpretation and application of Art. 36 is: "Such incapacity must
also be shown to be medically or clinically permanent or incurable.
Such incurability may be absolute or even relative only in regard to
the other spouse, not necessarily absolutely against everyone of
the same sex."
The Committee, through Prof. Araceli T. Barrera, considered the
inclusion of the phrase" and is incurable" but Prof. Esteban B.
Bautista commented that this would give rise to the question of
how they will determine curability and Justice Caguioa agreed that
it would be more problematic. Yet the possibility that one may be
cured after the psychological incapacity becomes manifest after
the marriage was not ruled out by Justice Puno and Justice Alice
Sempio-Diy. Justice Caguioa suggested that the remedy was to
allow the afflicted spouse to remarry.
For clarity, the Committee classified the bases for determining void
marriages, viz:
1. lack of one or more of the
essential requisites of
marriage as contract;
2. reasons of public policy;

3. special cases and special

situations.
The ground of psychological incapacity was subsumed
under "special cases and special situations," hence its
special treatment in Art. 36 in the Family Code as finally
enacted.
Nowhere in the Civil Code provisions on Marriage is there a ground
for avoiding or annulling marriages that even comes close to being
psychological in nature.
Where consent is vitiated due to circumstances existing at the time
of the marriage, such marriage which stands valid until annulled is
capable of ratification or convalidation.
On the other hand, for reasons of public policy or lack of essential
requisites, some marriages are void from the beginning.
With the revision of Book I of the Civil Code, particularly the
provisions on Marriage, the drafters, now open to fresh winds of
change in keeping with the more permissive mores and practices
of the time, took a leaf from the relatively liberal provisions of
Canon Law.
Canon 1095 which states, inter alia, that the following persons are
incapable of contracting marriage: "3. (those) who, because of
causes of a psychological nature, are unable to assume the
essential obligations of marriage" provided the model for what is
now Art. 36 of the Family Code: "A marriage contracted by any
party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity becomes
manifest only after its solemnization.
It bears stressing that unlike in Civil Law, Canon Law recognizes
only two types of marriages with respect to their validity: valid and
void. Civil Law, however, recognizes an intermediate state, the
voidable or annullable marriages. When the Ecclesiastical Tribunal
"annuls" a marriage, it actually declares the marriage null and
void, i.e., it never really existed in the first place, for a valid
sacramental marriage can never be dissolved. Hence, a properly
performed and consummated marriage between two living Roman

Catholics can only be nullified by the formal annulment process

which entails a full tribunal procedure with a Court selection and a
formal hearing.
Such so-called church "annulments" are not recognized by Civil
Law as severing the marriage ties as to capacitate the parties to
enter lawfully into another marriage. The grounds for nullifying civil
marriage, not being congruent with those laid down by Canon Law,
the former being more strict, quite a number of married couples
have found themselves in limbo freed from the marriage bonds
in the eyes of the Catholic Church but yet unable to contract a valid
civil marriage under state laws. Heedless of civil law sanctions,
some persons contract new marriages or enter into live-in
relationships.
It was precisely to provide a satisfactory solution to such
anomalous situations that the Civil Law Revision Committee
decided to engraft the Canon Law concept of psychological
incapacity into the Family Code and classified the same as a
ground for declaring marriages void ab initio or totally in existent
from the beginning.
A brief historical note on the Old Canon Law (1917). This Old Code,
while it did not provide directly for psychological incapacity, in
effect recognized the same indirectly from a combination of three
old canons: "Canon #1081 required persons to 'be capable
according to law' in order to give valid consent; Canon #1082
required that persons 'be at least not ignorant' of the major
elements required in marriage; and Canon #1087 (the force and fear
category) required that internal and external freedom be present in
order for consent to be valid. This line of interpretation produced
two distinct but related grounds for annulment, called 'lack of due
discretion' and 'lack of due competence.' Lack of due discretion
means that the person did not have the ability to give valid consent
at the time of the weddingand therefore the union is invalid. Lack of
due competence means that the person was incapable of carrying
out the obligations of the promise he or she made during the
wedding ceremony.
"Favorable annulment decisions by the Roman Rota in the 1950s
and 1960s involving sexual disorders such as homosexuality and
nymphomania laid the foundation for a broader approach to the
kind of proof necessary for psychological grounds for annulment.
The Rota had reasoned for the first time in several cases that the

capacity to give valid consent at the time of marriage was probably

not present in persons who had displayed such problems shortly
after the marriage. The nature of this change was nothing short of
revolutionary. Once the Rota itself had demonstrated a cautious
willingness to use this kind of hindsight, the way was paved for
what came after 1970. Diocesan Tribunals began to accept proof of
serious psychological problems that manifested themselves
shortly after the ceremony as proof of an inability to give valid
consent at the time of the ceremony.
Furthermore, and equally significant, the professional opinion of a
psychological expert became increasingly important in such
cases. Data about the person's entire life, both before and after the
ceremony, were presented to these experts and they were asked to
give professional opinions about a party's mental at the time of the
wedding. These opinions were rarely challenged and tended to be
accepted as decisive evidence of lack of valid consent.
The Church took pains to point out that its new openness in this
area did not amount to the addition of new grounds for annulment,
but rather was an accommodation by the Church to the advances
made in psychology during the past decades. There was now the
expertise to provide the all-important connecting link between a
marriage breakdown and premarital causes.
During the 1970s, the Church broadened its whole idea of marriage
from that of a legal contract to that of a covenant. The result of this
was that it could no longer be assumed in annulment cases that a
person who could intellectually understand the concept of
marriage could necessarily give valid consent to marry. The ability
to both grasp and assume the real obligations of a mature, lifelong
commitment are now considered a necessary prerequisite to valid
matrimonial consent. 2
Rotal decisions continued applying the concept of incipient
psychological incapacity, "not only to sexual anomalies but to all
kinds of personality disorders that incapacitate a spouse or both
spouses from assuming or carrying out the essential obligations of
marriage. For marriage . . . is not merely cohabitation or the right of
the spouses to each others' body for heterosexual acts, but is, in
its totality, the right to the community of the whole of life, i.e., the
right to a developing. lifelong relationship. Rotal decisions since
1973 have refined the meaning of psychological or psychic
capacity for marriage as presupposing the development of an adult

personality; as meaning the capacity of the spouses to give

themselves to each other and to accept the other as a distinct
person; that the spouses must be 'other oriented' since the
obligations of marriage are rooted in a self-giving love; and that the
spouses must have the capacity for interpersonal
relationship because marriage is more than just a physical reality
but involves a true intertwining of personalities. The fulfillment of
the obligations of marriage depends. according to Church
decisions, on the strength of this interpersonal relationship. A
serious incapacity for interpersonal sharing and support is held to
impair the relationship and consequently, the ability to fulfill the
essential marital obligations. The marital capacity of one spouse is
not considered in isolation but in reference to the fundamental
relationship to the other spouse. 3
Fr. Green, in an article in Catholic Mind, lists six elements
necessary to the mature marital relationship:
The courts consider the following elements
crucial to the marital commitment: (1) a
permanent and faithful commitment to the
marriage partner; (2) openness to children and
partner; (3) stability; (4) emotional maturity; (5)
financial responsibility; (6) an ability to cope
with the ordinary stresses and strains of
marriage, etc.
Fr. Green goes on to speak about some of the
psychological conditions that might lead to the
failure of a marriage:
At stake is a type of constitutional impairment
precluding conjugal communion even with the
best intentions of the parties. Among the
psychic factors possibly giving rise to his or her
inability to fulfill marital obligations are the
following: (1) antisocial personality with its
fundamental lack of loyalty to persons or sense
of moral values; (2) hyperesthesia, where the
individual has no real freedom of sexual choice;
(3) the inadequate personality where personal
responses consistently fallshort of reasonable
expectations.

xxx xxx xxx

The psychological grounds are the best
approach for anyone who doubts whether he or
she has a case for an annulment on any other
terms. A situation that does not fit into any of the
more traditional categories often fits very easily
into the psychological category.
As new as the psychological grounds are,
experts are already detecting a shift in their use.
Whereas originally the emphasis was on the
parties' inability to exercise proper judgment at
the time of the marriage (lack of due discretion),
recent cases seem to be concentratingon the
parties' to assume or carry out their
responsibilities an obligations as promised (lack
of due competence). An advantage to using the
ground of lack of due competence is that the at
the time the marriage was entered into civil
divorce and breakup of the family almost is of
someone's failure out marital responsibilities as
promised at the time the marriage was entered
into. 4
In the instant case, "opposing and conflicting personalities" of the
spouses were not considered equivalent to psychological
incapacity. As well in Santos v. Court of Appeals cited in
the ponencia, the Court held that the failure of the wife to return
home from the U.S. or to communicate with her husband for more
then five years is not proof of her psychological incapacity as to
render the marriage a nullity. 5 Therefore, Art. 36 is inapplicable and
the marriages remain valid and subsisting.
However in the recent case of Chi Ming Tsoi v. Court of
Appeals, 6 this Court upheld both the Regional Trial Court and the
Court of Appeals in declaring the presence of psychological
incapacity on the part of the husband. Said petitioner husband,
after ten (10) months' sleeping with his wife never had coitus with
her, a fact he did not deny but he alleged that it was due to the
physical disorder of his wife which, however, he failed to prove.
Goaded by the indifference and stubborn refusal of her husband to
fulfill a basic marital obligation described as "to procreate children
based on the universal principle that procreation of children

through sexual cooperation is the basic end of marriage," the wife

brought the action in the lower court to declare the marriage null.
The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of
the Metropolitan Marriage Tribunal of the Catholic Archdiocese of
Manila (Branch I) on Psychological incapacity concluded:
If a spouse, although physically capable but
simply refuses to perform his or her essential
marriage obligations, and the refusal is
senseless and constant, Catholic marriage
tribunals attribute the causes to psychological
incapacity than to stubborn refusal.Senseless
and protracted refusal is equivalent to
psychological incapacity. Thus, the prolonged
refusal of a spouse to have sexual intercourse
with his or her spouse is considered a sign of
psychological incapacity.
We declared:
This Court, finding the gravity of the failed relationship in which the
parties found themselves trapped in its mire of unfulfilled vows and
unconsummated marital obligations, can do no less but sustain the
studied judgment of respondent appellate court.
1 concur with the majority opinion that the herein marriage remains
valid and subsisting absent psychological incapacity (under Art. 36
of the Family Code) on the part of either or both of the spouses.

VITUG, J., concurring:

I fully concur with my esteemed 'colleague Mr. Justice Artemio V.
Panganiban in his ponencia, and I find to be most helpful the
guidelines that he prepared for the bench and the bar in the proper
appreciation of Article 36 of Executive Order No. 209 ("The Family
Code of the Philippines"). The term "psychological incapacity" was
neither defined nor exemplified by the Family Code. Thus
Art. 36. A marriage contracted by any party who,
at the time of the celebration, was

psychologically incapacitated to comply with the

essential marital obligations of marriage, shall
likewise be void even if such incapacity
becomes manifest only after its solemnization.
The Revision Committee, constituted under the auspices
of the U.P. Law Center, which drafted the Code explained:
(T)he Committee would like the judge to interpret
the provision on a case-to-case basis, guided by
experience, the findings of experts and
researchers in psychological disciplines, and by
decisions of church tribunals which, although
not binding on the civil courts, may be given
persuasive effect since the provision was taken
from Canon Law. 1
Article 36 of the Family Code was concededly taken from Canon
1095 of the New Code of Canon Law
Canon 1095. (The following persons) are
incapable of contracting marriage; (those)
1. who lack sufficient use of reason;
2. who suffer from a grave defect of discretion of
judgment concerning essential matrimonial
rights and duties, to be given and accepted
mutually;
3. who for causes of psychological nature are
unable to assume the essential obligations of
marriage
that should give that much value to Canon Law
jurisprudence as an aid to the interpretation and
construction of the statutory enactment. 2
The principles in the proper application of the law teach us that the
several provisions of a Code must be read like a congruent whole.
Thus, in determining the import of "psychological incapacity"
under Article 36, one must also read it along with, albeit to be taken
as distinct from, the other grounds enumerated in the Code, like

Articles 35, 37, 38 and 41 that would likewise, but for distinct
reasons, render the marriage merely voidable, or Article 55 that
could justify a petition for legal separation. Care must be observed
so that these various circumstances are not applied so
indiscriminately as if the law were indifferent on the matter.
I would wish to reiterate the Court's' statement in Santos vs. Court
of Appeals; 3 viz:
(T)he use of the phrase "psychological
incapacity" under Article 36 of the Code has not
been meant to comprehend all such possible
cases of psychoses as, likewise mentioned by
some ecclesiastical authorities, extremely low
intelligence, immaturity, and like
circumstances. . . Article 36 of the Family Code
cannot be taken and construed independently of,
but must stand in conjunction with, existing
precepts in our law on marriage. Thus
correlated, "psychological incapacity" should
refer to no less than a mental (not physical)
incapacity that causes a party to be truly
incognitive of the basic marital covenants that
concomitantly must be assumed and discharged
by the parties to the marriage which, as so
expressed by Article 68 of the Family Code,
include their mutual obligations to live together,
observe love, respect and fidelity and render
help and support. There is hardly any doubt that
the intendment of the law has been to confine
the meaning of "psychological incapacity" to the
most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or
inability of the spouse to have sexual relations
with the other. This conclusion is implicit under
Article 54 of the Family Code which considers
children conceived prior to the judicial
declaration of nullity of the void marriage to be
"legitimate."
The other forms of psychoses, if existing at the
inception of marriage, like the state of a party
being of unsound mind or concealment of drug
addiction, habitual alcoholism, homosexuality or

lesbianism, merely renders the marriage contract

voidable pursuant to Article 46, Family Code. If
drug addiction, habitual alcoholism, lesbianism
or homosexuality should occur only during the
marriage, they become mere grounds for legal
separation under Article 55 of the Family Code.
These provisions of the Code, however, do not
necessarily preclude the possibility of these
various circumstances being themselves,
depending on the degree and severity of the
disorder, indicia of psychological
incapacity. 4
In fine, the term "psychological incapacity," to be a ground for then
nullity of marriage under Article 36 of the Family Code, must be
able to pass the following tests; viz:
First, the incapacity must be psychological or mental, not physical,
in nature;
Second, the psychological incapacity must relate to the inability,
not mere refusal, to understand, assume end discharge the basic
marital obligations of living together, observing love, respect and
fidelity and rendering mutual help and support;
Third, the psychologic condition must exist at the time the
marriage is contracted although its overt manifestations and the
marriage may occur only thereafter; and
Fourth, the mental disorder must be grave or serious and
incurable.
It may well be that the Family Code Revision Committee has
envisioned Article 36, as not a few observers would suspect, as
another form of absolute divorce or, as still others would also put
it, to be a alternative to divorce; however, the fact still remains that
the language of the law has failed to carry out, even if true, any
such intendment. It might have indeed turned out for the better, if it
were otherwise, there could be good reasons to doubt the
constitutionality of the measure. The fundamental law itself, no
less, has laid down in terse language its unequivocal command on
how the State should regard marriage and the family, thus

Section 2, Article XV:

Sec. 2. Marriage, as an inviolable social
institution, is the foundation of the family and
shall be protected by the State.

of the foreigner. However, the divorce decree and the governing

personal law of the alien spouse who obtained the divorce must be
proven. Our courts do not take judicial notice of foreign laws and
judgments; hence, like any other facts, both the divorce decree and the
national law of the alien must be alleged and proven according to our
law on evidence.

1996, in accordance with their Statutory Declarations secured in

Australia.[9]

The Case

In his Answer, respondent averred that, as far back as 1993, he

had revealed to petitioner his prior marriage and its subsequent
dissolution.[11] He contended that his first marriage to an Australian
citizen had been validly dissolved by a divorce decree obtained in
Australia in 1989;[12] thus, he was legally capacitated to marry petitioner
in 1994.

Section 12, Article II:

Sec. 12. The State recognizes the sanctity of
family life and shall protect and strengthen the
family as a basic autonomous social
institution . . . .
Section 1, Article XV:
Sec. 1. The State recognizes the Filipino family
as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively
promote its total development. (The 1987
Constitution)
The case of Marcelino vs. Cruz, 121 SCRA 51, might here be
significant not so much for the specific issue there resolved but for
the tone it has set. The Court there has held that constitutional
provisions are to be considered mandatory unless by necessary
implication, a different intention is manifest such that to have them
enforced strictly would cause more harm than by disregarding
them. It is quite clear to me that the constitutional mandate on
marriage and the family has not been meant to be simply directory
in character, nor for mere expediency or convenience, but one that
demands a meaningful, not half-hearted, respect.

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs.

REDERICK A. RECIO, respondent.
DECISION
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be recognized in our
jurisdiction, provided such decree is valid according to the national law

Before us is a Petition for Review under Rule 45 of the Rules of

Court, seeking to nullify the January 7, 1999 Decision [1] and the March
24, 1999 Order[2] of the Regional Trial Court of Cabanatuan City, Branch
28, in Civil Case No. 3026AF. The assailed Decision disposed as
follows:
WHEREFORE, this Court declares the marriage between Grace J.
Garcia and Rederick A. Recio solemnized on January 12, 1994 at
Cabanatuan City as dissolved and both parties can now remarry under
existing and applicable laws to any and/or both parties. [3]
The assailed Order denied reconsideration of the above-quoted
Decision.

The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an
Australian citizen, in Malabon, Rizal, on March 1, 1987. [4] They lived
together as husband and wife in Australia. On May 18, 1989, [5] a decree
of divorce, purportedly dissolving the marriage, was issued by an
Australian family court.
On June 26, 1992, respondent became an Australian citizen, as
shown by a Certificate of Australian Citizenship issued by the
Australian government.[6] Petitioner -- a Filipina -- and respondent were
married on January 12, 1994 in Our Lady of Perpetual Help Church in
Cabanatuan City.[7] In their application for a marriage license, respondent
was declared as single and Filipino.[8]
Starting October 22, 1995, petitioner and respondent lived
separately without prior judicial dissolution of their marriage. While the
two were still in Australia, their conjugal assets were divided on May 16,

On March 3, 1998, petitioner filed a Complaint for Declaration of

Nullity of Marriage[10] in the court a quo, on the ground of bigamy -respondent allegedly had a prior subsisting marriage at the time he
married her on January 12, 1994. She claimed that she learned of
respondents marriage to Editha Samson only in November, 1997.

On July 7, 1998 -- or about five years after the couples wedding

and while the suit for the declaration of nullity was pending -- respondent
was able to secure a divorce decree from a family court in Sydney,
Australia because the marriage ha[d] irretrievably broken down. [13]
Respondent prayed in his Answer that the Complaint be dismissed
on the ground that it stated no cause of action. [14] The Office of the
Solicitor General agreed with respondent. [15] The court marked and
admitted the documentary evidence of both parties. [16] After they
submitted their respective memoranda, the case was submitted for
resolution.[17]
Thereafter, the trial court rendered the assailed Decision and
Order.

Ruling of the Trial Court

The trial court declared the marriage dissolved on the ground that
the divorce issued in Australia was valid and recognized in the
Philippines. It deemed the marriage ended, but not on the basis of any
defect in an essential element of the marriage; that is, respondents
alleged lack of legal capacity to remarry. Rather, it based its Decision
on the divorce decree obtained by respondent. The Australian divorce
had ended the marriage; thus, there was no more marital union to nullify
or annul.
Hence, this Petition.[18]

Issues
Petitioner submits the following issues for our consideration:

The Courts Ruling

The Petition is partly meritorious.

1
The trial court gravely erred in finding that the divorce decree obtained in
Australia by the respondent ipso facto terminated his first marriage to
Editha Samson thereby capacitating him to contract a second marriage
with the petitioner.
2
The failure of the respondent, who is now a naturalized Australian, to
present a certificate of legal capacity to marry constitutes absence of a
substantial requisite voiding the petitioners marriage to the respondent
3
The trial court seriously erred in the application of Art. 26 of the Family
Code in this case.
4
The trial court patently and grievously erred in disregarding Arts. 11, 13,
21, 35, 40, 52 and 53 of the Family Code as the applicable provisions in
this case.
5
The trial court gravely erred in pronouncing that the divorce decree
obtained by the respondent in Australia ipso facto capacitated the
parties to remarry, without first securing a recognition of the judgment
granting the divorce decree before our courts.[19]
The Petition raises five issues, but for purposes of this Decision,
we shall concentrate on two pivotal ones: (1) whether the divorce
between respondent and Editha Samson was proven, and (2) whether
respondent was proven to be legally capacitated to marry
petitioner. Because of our ruling on these two, there is no more
necessity to take up the rest.

First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial courts recognition of the divorce
between respondent and Editha Samson. Citing Adong v. Cheong Seng
Gee,[20] petitioner argues that the divorce decree, like any other foreign
judgment, may be given recognition in this jurisdiction only upon proof of
the existence of (1) the foreign law allowing absolute divorce and (2) the
alleged divorce decree itself. She adds that respondent miserably failed
to establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of
the Family Code, marriages solemnized abroad are governed by the law
of the place where they were celebrated (the lex loci celebrationis). In
effect, the Code requires the presentation of the foreign law to show the
conformity of the marriage in question to the legal requirements of the
place where the marriage was performed.
At the outset, we lay the following basic legal principles as the
take-off points for our discussion. Philippine law does not provide for
absolute divorce; hence, our courts cannot grant it. [21] A marriage
between two Filipinos cannot be dissolved even by a divorce obtained
abroad, because of Articles 15[22] and 17[23] of the Civil Code.[24] In mixed
marriages involving a Filipino and a foreigner, Article 26 [25]of the Family
Code allows the former to contract a subsequent marriage in case the
divorce is validly obtained abroad by the alien spouse capacitating him
or her to remarry.[26] A divorce obtained abroad by a couple, who are
both aliens, may be recognized in the Philippines, provided it is
consistent with their respective national laws.[27]
A comparison between marriage and divorce, as far as pleading
and proof are concerned, can be made. Van Dorn v. Romillo
Jr. decrees that aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their
national law.[28] Therefore, before a foreign divorce decree can be
recognized by our courts, the party pleading it must prove the divorce as
a fact and demonstrate its conformity to the foreign law allowing it.
[29]
Presentation solely of the divorce decree is insufficient.

Divorce as a Question of Fact

Petitioner insists that before a divorce decree can be admitted in
evidence, it must first comply with the registration requirements under
Articles 11, 13 and 52 of the Family Code. These articles read as
follows:
ART. 11. Where a marriage license is required, each of the contracting
parties shall file separately a sworn application for such license with the
proper local civil registrar which shall specify the following:
xxx

xxx

xxx

(5)
If previously married, how, when and where the previous
marriage was dissolved or annulled;
xxx

xxx

x x x

ART. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to
ART. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to furnish, instead of the birth or
baptismal certificate required in the last preceding article, the death
certificate of the deceased spouse or the judicial decree of the absolute
divorce, or the judicial decree of annulment or declaration of nullity of his
or her previous marriage. x x x.
ART. 52. The judgment of annulment or of absolute nullity of the
marriage, the partition and distribution of the properties of the spouses,
and the delivery of the childrens presumptive legitimes shall be
recorded in the appropriate civil registry and registries of property;
otherwise, the same shall not affect their persons.
Respondent, on the other hand, argues that the Australian divorce
decree is a public document -- a written official act of an Australian
family court. Therefore, it requires no further proof of its authenticity and
due execution.
Respondent is getting ahead of himself. Before a foreign
judgment is given presumptive evidentiary value, the document must
first be presented and admitted in evidence. [30] A divorce obtained
abroad is proven by the divorce decree itself. Indeed the best evidence
of a judgment is the judgment itself. [31] The decree purports to be a

written act or record of an act of an official body or tribunal of a foreign

country.[32]
Under Sections 24 and 25 of Rule 132, on the other hand, a
writing or document may be proven as a public or official record of a
foreign country by either (1) an official publication or (2) a copy thereof
attested[33] by the officer having legal custody of the document. If the
record is not kept in the Philippines, such copy must be (a) accompanied
by a certificate issued by the proper diplomatic or consular officer in the
Philippine foreign service stationed in the foreign country in which the
record is kept and (b) authenticated by the seal of his office. [34]
The divorce decree between respondent and Editha Samson
appears to be an authentic one issued by an Australian family court.
[35]
However, appearance is not sufficient; compliance with the
aforementioned rules on evidence must be demonstrated.
Fortunately for respondents cause, when the divorce decree of
May 18, 1989 was submitted in evidence, counsel for petitioner
objected, not to its admissibility, but only to the fact that it had not been
registered in the Local Civil Registry of Cabanatuan City. [36] The trial
court ruled that it was admissible, subject to petitioners qualification.
[37]
Hence, it was admitted in evidence and accorded weight by the
judge. Indeed, petitioners failure to object properly rendered the divorce
decree admissible as a written act of the Family Court of Sydney,
Australia.[38]
Compliance with the quoted articles (11, 13 and 52) of the Family
Code is not necessary; respondent was no longer bound by Philippine
personal laws after he acquired Australian citizenship in 1992.
[39]
Naturalization is the legal act of adopting an alien and clothing him
with the political and civil rights belonging to a citizen. [40] Naturalized
citizens, freed from the protective cloak of their former states, don the
attires of their adoptive countries. By becoming an Australian,
respondent severed his allegiance to the Philippines and the vinculum
juris that had tied him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce
law falls upon petitioner, because she is the party challenging the validity
of a foreign judgment. He contends that petitioner was satisfied with the
original of the divorce decree and was cognizant of the marital laws of
Australia, because she had lived and worked in that country for quite a
long time. Besides, the Australian divorce law is allegedly known by
Philippine courts; thus, judges may take judicial notice of foreign laws in
the exercise of sound discretion.

We are not persuaded. The burden of proof lies with the party
who alleges the existence of a fact or thing necessary in the prosecution
or defense of an action.[41] In civil cases, plaintiffs have the burden of
proving the material allegations of the complaint when those are denied
by the answer; and defendants have the burden of proving the material
allegations in their answer when they introduce new matters. [42] Since
the divorce was a defense raised by respondent, the burden of proving
the pertinent Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take
judicial notice of foreign laws.[43] Like any other facts, they must be
alleged and proved. Australian marital laws are not among those
matters that judges are supposed to know by reason of their judicial
function.[44] The power of judicial notice must be exercised with caution,
and every reasonable doubt upon the subject should be resolved in the
negative.

Second Issue: Respondents Legal Capacity to Remarry

Petitioner contends that, in view of the insufficient proof of the
divorce, respondent was legally incapacitated to marry her in
1994. Hence, she concludes that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was
validly admitted in evidence, adequately established his legal capacity to
marry under Australian law.
Respondents contention is untenable. In its strict legal
sense, divorce means the legal dissolution of a lawful union for a cause
arising after marriage. But divorces are of different types. The two
basic ones are (1) absolute divorce or a vinculo matrimonii and (2)
limited divorce or a mensa et thoro. The first kind terminates the
marriage, while the second suspends it and leaves the bond in full force.
[45]
There is no showing in the case at bar which type of divorce was
procured by respondent.
Respondent presented a decree nisi or an interlocutory decree -- a
conditional or provisional judgment of divorce. It is in effect the same as
a separation from bed and board, although an absolute divorce may
follow after the lapse of the prescribed period during which no
reconciliation is effected.[46]
Even after the divorce becomes absolute, the court may under
some foreign statutes and practices, still restrict remarriage. Under

some other jurisdictions, remarriage may be limited by statute; thus, the

guilty party in a divorce which was granted on the ground of adultery
may be prohibited from marrying again. The court may allow a
remarriage only after proof of good behavior. [47]
On its face, the herein Australian divorce decree contains a
restriction that reads:
1.

A party to a marriage who marries again before

this decree becomes absolute (unless the other party
has died) commits the offence of bigamy.[48]

This quotation bolsters our contention that the divorce obtained by

respondent may have been restricted. It did not absolutely establish his
legal capacity to remarry according to his national law. Hence, we find
no basis for the ruling of the trial court, which erroneously assumed that
the Australian divorce ipso facto restored respondents capacity to
remarry despite the paucity of evidence on this matter.
We also reject the claim of respondent that the divorce decree
raises a disputable presumption or presumptive evidence as to his civil
status based on Section 48, Rule 39 [49] of the Rules of Court, for the
simple reason that no proof has been presented on the legal effects of
the divorce decree obtained under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by
Article 21 of the Family Code was not submitted together with the
application for a marriage license. According to her, its absence is proof
that respondent did not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is
determined by the national law of the party concerned. The certificate
mentioned in Article 21 of the Family Code would have been sufficient to
establish the legal capacity of respondent, had he duly presented it in
court. A duly authenticated and admitted certificate is prima facie
evidence of legal capacity to marry on the part of the alien applicant for
a marriage license.[50]
As it is, however, there is absolutely no evidence that proves
respondents legal capacity to marry petitioner. A review of the records
before this Court shows that only the following exhibits were presented
before the lower court: (1) for petitioner: (a) Exhibit A Complaint;
[51]
(b) Exhibit B Certificate of Marriage Between Rederick A. Recio
(Filipino-Australian) and Grace J. Garcia (Filipino) on January 12, 1994
in Cabanatuan City, Nueva Ecija;[52] (c) Exhibit C Certificate of
Marriage Between Rederick A. Recio (Filipino) and Editha D. Samson

(Australian) on March 1, 1987 in Malabon, Metro Manila; [53] (d) Exhibit

D Office of the City Registrar of Cabanatuan City Certification that no
information of annulment between Rederick A. Recio and Editha D.
Samson was in its records;[54] and (e) Exhibit E Certificate of
Australian Citizenship of Rederick A. Recio;[55] (2) for respondent: (a)
Exhibit 1 -- Amended Answer;[56] (b) Exhibit 2 Family Law Act 1975
Decree Nisi of Dissolution of Marriage in the Family Court of Australia;
[57]
(c) Exhibit 3 Certificate of Australian Citizenship of Rederick A.
Recio;[58] (d) Exhibit 4 Decree Nisi of Dissolution of Marriage in the
Family Court of Australia Certificate;[59] and Exhibit 5 -- Statutory
Declaration of the Legal Separation Between Rederick A. Recio and
Grace J. Garcia Recio since October 22, 1995.[60]
Based on the above records, we cannot conclude that respondent,
who was then a naturalized Australian citizen, was legally capacitated to
marry petitioner on January 12, 1994. We agree with petitioners
contention that the court a quo erred in finding that the divorce decree
ipso facto clothed respondent with the legal capacity to remarry without
requiring him to adduce sufficient evidence to show the Australian
personal law governing his status; or at the very least, to prove his legal
capacity to contract the second marriage.
Neither can we grant petitioners prayer to declare her marriage to
respondent null and void on the ground of bigamy. After all, it may turn
out that under Australian law, he was really capacitated to marry
petitioner as a direct result of the divorce decree. Hence, we believe
that the most judicious course is to remand this case to the trial court to
receive evidence, if any, which show petitioners legal capacity to marry
petitioner. Failing in that, then the court a quo may declare a nullity of
the parties marriage on the ground of bigamy, there being already in
evidence two existing marriage certificates, which were both obtained in
the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and
the other, in Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial
justice, we REMAND the case to the court a quo for the purpose of
receiving evidence which conclusively show respondents legal capacity
to marry petitioner; and failing in that, of declaring the parties marriage
void on the ground of bigamy, as above discussed. No costs.
SO ORDERED.
ELMAR O. PEREZ,
Petitioner,

G.R. No. 162580

Present:
Panganiban, C.J. (Chairperson),

- versus -

Ynares-Santiago,
Austria-Martinez,
Ca
llej
o,
Sr.
,
an
d
ChicoNazario, JJ.

COURT OF APPEALS, Fifth

Division, TRISTAN A. CATINDIG
and LILY GOMEZ-CATINDIG,
Respondents.

Promulgated:

Republic. Thus, on April 27, 1984, Tristan and Lily executed a Special
Power of Attorney addressed to the Judge of the First Civil Court of
San Cristobal, Dominican Republic, appointing an attorney-in-fact to
institute a divorce action under its laws.[6]
Thereafter, on April 30, 1984, the private respondents filed a
joint petition for dissolution of conjugal partnership with the Regional
Trial Court of Makati. On June 12, 1984, the civil court in the Dominican
Republic ratified the divorce by mutual consent of Tristan and Lily.
Subsequently, on June 23, 1984, the Regional Trial Court ofMakati City,
Branch 133, ordered the complete separation of properties between
Tristan and Lily.
On July 14, 1984, Tristan married petitioner Elmar O. Perez in
the State of Virginia in the United States[7] and both lived as husband
and wife until October 2001. Their union produced one offspring.[8]

January 27, 2006

x ---------------------------------------------------------------------------------------- x
DECISION
YNARES-SANTIAGO, J.:
This petition for certiorari and prohibition under Rule 65 of the
Rules of Court assails the July 25, 2003 Decision [1] of the Court of
Appeals in CA-G.R. SP No. 74456 which set aside and declared as null
and void the September 30, 2002 Order [2] of the Regional Trial Court
of Quezon City, Branch 84, granting petitioners motion for leave to file
intervention and admitting the Complaint-in-Intervention [3] in Civil Case
No. Q-01-44847; and its January 23, 2004 Resolution[4] denying the
motion for reconsideration.
Private respondent Tristan A. Catindig married Lily
Gomez Catindig[5] twice on May 16, 1968. The first marriage ceremony
was
celebrated
at the CentralMethodist Church at T.M. Kalaw Street, Ermita, Manila whi
le the second took place at the Lourdes Catholic Church in La
Loma, Quezon City. The marriage produced four children.
Several years later, the couple encountered marital problems
that they decided to separate from each other. Upon advice of a mutual
friend, they decided to obtain a divorce from the Dominican

During their cohabitation, petitioner learned that the divorce

decree issued by the court in the Dominican Republic which dissolved
the marriage between Tristan and Lily was not recognized in
the Philippines and that her marriage to Tristan was deemed void under
Philippine law. When she confronted Tristan about this, the latter
assured her that he would legalize their union after he obtains an
annulment of his marriage with Lily. Tristan further promised the
petitioner that he would adopt their son so that he would be entitled to
an equal share in his estate as that of each of his children with Lily. [9]
On August 13, 2001, Tristan filed a petition for the declaration
of nullity of his marriage to Lily with the Regional Trial Court
of Quezon City, docketed as Case No. Q-01-44847.
Subsequently, petitioner filed a Motion for Leave to File
Intervention[10] claiming that she has a legal interest in the matter in
litigation because she knows certain information which might aid the trial
court at a truthful, fair and just adjudication of the annulment case, which
the trial court granted on September 30, 2002. Petitioners complaint-inintervention was also ordered admitted.
Tristan filed a petition for certiorari and prohibition with the
Court of Appeals seeking to annul the order dated September 30,
2002 of the trial court. The Court of Appeals granted the petition and
declared as null and void the September 30, 2002 Order of the trial court
granting the motion for leave to file intervention and admitting the
complaint-in-intervention.

Petitioners motion for reconsideration was denied, hence this

petition for certiorari and prohibition filed under Rule 65 of the Rules of
Court. Petitioner contends that the Court of Appeals gravely abused its
discretion in disregarding her legal interest in the annulment case
between Tristan and Lily.
The petition lacks merit.
Ordinarily, the proper recourse of an aggrieved party from a
decision of the Court of Appeals is a petition for review on certiorari
under Rule 45 of the Rules of Court. However, if the error subject of the
recourse is one of jurisdiction, or the act complained of was granted by a
court with grave abuse of discretion amounting to lack or excess of
jurisdiction, as alleged in this case, the proper remedy is a petition
for certiorari under Rule 65 of the said Rules. [11] This is based on the
premise that in issuing the assailed decision and resolution, the Court of
Appeals acted with grave abuse of discretion, amounting to excess of
lack of jurisdiction and there is no plain, speedy and adequate remedy in
the ordinary course of law. A remedy is considered plain, speedy, and
adequate if it will promptly relieve the petitioner from the injurious effect
of the judgment and the acts of the lower court. [12]
It is therefore incumbent upon the petitioner to establish that
the Court of Appeals acted with grave abuse of discretion amounting to
excess or lack of jurisdiction when it promulgated the assailed decision
and resolution.
We have previously ruled that grave abuse of discretion may
arise when a lower court or tribunal violates or contravenes the
Constitution, the law or existing jurisprudence. By grave abuse of
discretion is meant, such capricious and whimsical exercise of judgment
as is equivalent to lack of jurisdiction. The abuse of discretion must be
grave as where the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility and must be so patent
and gross as to amount to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined by or to act at all in contemplation of
law.[13] The word capricious, usually used in tandem with the term
arbitrary, conveys the notion of willful and unreasoning action. Thus,
when seeking the corrective hand of certiorari, a clear showing of
caprice and arbitrariness in the exercise of discretion is imperative. [14]
The Rules of Court laid down the parameters before a person,
not a party to a case can intervene, thus:

Who may intervene. A person who has

a legal interest in the matter in litigation, or in the
success of either of the parties, or an interest
against both, or is so situated as to be adversely
affected by a distribution or other disposition of
property in the custody of the court or of an officer
thereof may, with leave of court, be allowed to
intervene in the action. The court shall consider
whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original
parties, and whether or not the intervenors rights
may be fully protected in a separate proceeding.[15]
The requirements for intervention are: [a] legal interest in the
matter in litigation; and [b] consideration must be given as to whether the
adjudication of the original parties may be delayed or prejudiced, or
whether the intervenors rights may be protected in a separate
proceeding or not.[16]
Legal interest, which entitles a person to intervene, must be in
the matter in litigation and of such direct and immediate character that
the intervenor will either gain or lose by direct legal operation and effect
of the judgment.[17] Such interest must be actual, direct and material,
and not simply contingent and expectant.[18]
Petitioner claims that her status as the wife and companion of
Tristan for 17 years vests her with the requisite legal interest required of
a would-be intervenor under the Rules of Court.
Petitioners claim lacks merit. Under the law, petitioner was
never the legal wife of Tristan, hence her claim of legal interest has no
basis.
When petitioner and Tristan married on July 14, 1984, Tristan
was still lawfully married to Lily. The divorce decree that Tristan and Lily
obtained from theDominican Republic never dissolved the marriage
bond between them. It is basic 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.
[19]
Regardless of where a citizen of the Philippines might be, he or she
will be governed by Philippine laws with respect to his or her family
rights and duties, or to his or her status, condition and legal capacity.
Hence, if a Filipino regardless of whether he or she was married here or
abroad, initiates a petition abroad to obtain an absolute divorce from
spouse and eventually becomes successful in getting an absolute

divorce decree, the Philippines will not recognize such absolute divorce.
[20]

When Tristan and Lily married on May 18, 1968, their marriage
was governed by the provisions of the Civil Code [21] which took effect
on August 30, 1950. In the case of Tenchavez v. Escano[22] we held:
(1) That a foreign divorce between Filipino
citizens, sought and decreed after the effectivity of
the present Civil Code (Rep. Act No. 386), is not
entitled to recognition as valid in this
jurisdiction; and neither is the marriage
contracted with another party by the divorced
consort, subsequently to the foreign decree of
divorce,
entitled
to
validity
in
the
country. (Emphasis added)
Thus, petitioners claim that she is the wife of Tristan even if
their marriage was celebrated abroad lacks merit. Thus, petitioner never
acquired the legal interest as a wife upon which her motion for
intervention is based.
Since petitioners motion for leave to file intervention was
bereft of the indispensable requirement of legal interest, the issuance by
the trial court of the order granting the same and admitting the
complaint-in-intervention was attended with grave abuse of
discretion. Consequently, the Court of Appeals correctly set aside and
declared as null and void the said order.
WHEREFORE, the petition is DISMISSED. The assailed
Decision dated July 25, 2003 and Resolution dated January 23, 2004 of
the Court of Appeals in CA-G.R. SP No. 74456 are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.