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Both Jalosjos and Cardino were candidates for Mayor of Dapitan City, Zamboanga del Norte in the May

2010 elections. Jalosjos was running for his third term. Cardino filed on 6 December 2009 a petition under
Section 78 of the Omnibus Election Code to deny due course and to cancel the certificate of candidacy of
Jalosjos. Cardino asserted that Jalosjos made a false material representation in his certificate of
candidacy when he declared under oath that he was eligible for the Office of Mayor.
Cardino claimed that long before Jalosjos filed his certificate of candidacy, Jalosjos had already been
convicted by final judgment for robbery and sentenced to prisin mayor by the Regional Trial Court,
Branch 18 (RTC) of Cebu City, in Criminal Case No. CCC-XIV-140-CEBU. Cardino asserted that Jalosjos
has not yet served his sentence. Jalosjos admitted his conviction but stated that he had already been
granted probation. Cardino countered that the RTC revoked Jalosjos probation in an Order dated 19
March 1987. Jalosjos refuted Cardino and stated that the RTC issued an Order dated 5 February 2004
declaring that Jalosjos had duly complied with the order of probation. Jalosjos further stated that during
the 2004 elections the COMELEC denied a petition for disqualification filed against him on the same
grounds.4
The COMELEC En Banc narrated the circumstances of Jalosjos criminal record as follows:
As backgrounder, Jalosjos and three (3) others were accused of the crime of robbery on January 22,
1969 in Cebu City. On April 30, 1970, Judge Francisco Ro. Cupin of the then Circuit Criminal Court of
Cebu City found him and his co-accused guilty of robbery and sentenced them to suffer the penalty of
prision correccional minimum to prision mayor maximum. Jalosjos appealed this decision to the Court of
Appeals but his appeal was dismissed on August 9, 1973. It was only after a lapse of several years or
more specifically on June 17, 1985 that Jalosjos filed a Petition for Probation before the RTC Branch 18
of Cebu City which was granted by the court. But then, on motion filed by his Probation Officer, Jalosjos
probation was revoked by the RTC Cebu City on March 19, 1987 and the corresponding warrant for his
arrest was issued. Surprisingly, on December 19, 2003, Parole and Probation Administrator Gregorio F.
Bacolod issued a Certification attesting that respondent Jalosjos, Jr., had already fulfilled the terms and
conditions of his probation. This Certification was the one used by respondent Jalosjos to secure the
dismissal of the disqualification case filed against him by Adasa in 2004, docketed as SPA No. 04-235.
This prompted Cardino to call the attention of the Commission on the decision of the Sandiganbayan
dated September 29, 2008 finding Gregorio F. Bacolod, former Administrator of the Parole and Probation
Administration, guilty of violating Section 3(e) of R.A. 3019 for issuing a falsified Certification on
December 19, 2003 attesting to the fact that respondent Jalosjos had fully complied with the terms and
conditions of his probation. A portion of the decision of the Sandiganbayan is quoted hereunder:
The Court finds that the above acts of the accused gave probationer Dominador Jalosjos, Jr.,
unwarranted benefits and advantage because the subject certification, which was issued by the accused
without adequate or official support, was subsequently utilized by the said probationer as basis of the
Urgent Motion for Reconsideration and to Lift Warrant of Arrest that he filed with the Regional Trial Court
of Cebu City, which prompted the said court to issue the Order dated February 5, 2004 in Crim. Case No.
CCC-XIV-140-CEBU, declaring that said probationer has complied with the order of probation and setting
aside its Order of January 16, 2004 recalling the warrant or [sic] arrest; and that said Certification was
also used by the said probationer and became the basis for the Commission on Elections to deny in its
Resolution of August 2, 2004 the petition or [sic] private complainant James Adasa for the disqualification
of the probationer from running for re-election as Mayor of Dapitan City in the National and Local
Elections of 2004.5
The COMELECs Rulings
On 10 May 2010, the COMELEC First Division granted Cardinos petition and cancelled Jalosjos
certificate of candidacy. The COMELEC First Division concluded that "Jalosjos has indeed committed
material misrepresentation in his certificate of candidacy when he declared, under oath, that he is eligible
for the office he seeks to be elected to when in fact he is not by reason of a final judgment in a criminal
case, the sentence of which he has not yet served." 6 The COMELEC First Division found that Jalosjos
certificate of compliance of probation was fraudulently issued; thus, Jalosjos has not yet served his
sentence. The penalty imposed on Jalosjos was the indeterminate sentence of one year, eight months
and twenty days of prisin correccional as minimum, to four years, two months and one day of prisin
mayor as maximum. The COMELEC First Division ruled that Jalosjos "is not eligible by reason of his
disqualification as provided for in Section 40(a) of Republic Act No. 7160." 7
On 11 August 2010, the COMELEC En Banc denied Jalosjos motion for reconsideration. The pertinent
portions of the 11 August 2010 Resolution read:
With the proper revocation of Jalosjos earlier probation and a clear showing that he has not yet served
the terms of his sentence, there is simply no basis for Jalosjos to claim that his civil as well as political
rights have been violated. Having been convicted by final judgment,
Jalosjos is disqualified to run for an elective position or to hold public office. His proclamation as the
elected mayor in the May 10, 2010 election does not deprive the Commission of its authority to resolve
the present petition to its finality, and to oust him from the office he now wrongfully holds.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration is denied for utter lack of merit.
Jalosjos is hereby OUSTED from office and ordered to CEASE and DESIST from occupying and
discharging the functions of the Office of the Mayor of Dapitan City, Zamboanga. Let the provisions of the
Local Government Code on succession apply.
SO ORDERED.8
Jalosjos filed his petition on 25 August 2010, docketed as G.R. No. 193237, while Cardino filed his
petition on 17 September 2010, docketed as G.R. No. 193536.
On 22 February 2011, this Court issued a Resolution dismissing G.R. No. 193237.
WHEREFORE, the foregoing premises considered, the Petition for Certiorari is DISMISSED. The assailed
Resolution dated May 10, 2010 and Resolution dated August 11, 2010 of the Commission on Elections in
SPA Case No. 09-076 (DC) are hereby AFFIRMED.9
Cardino filed a Manifestation on 17 March 2011 praying that this Court take judicial notice of its resolution
in G.R. No. 193237. Jalosjos filed a Motion for Reconsideration 10 on 22 March 2011. On 29 March 2011,
this Court resolved11 to consolidate G.R. No. 193536 with G.R. No. 193237.Jalosjos then filed a
Manifestation on 1 June 2012 which stated that "he has resigned from the position of Mayor of the City of
Dapitan effective 30 April 2012, which resignation was accepted by the Provincial Governor of
Zamboanga del Norte, Atty. Rolando E. Yebes."12Jalosjos resignation was made "in deference with the
provision of the Omnibus Election Code in relation to his candidacy as Provincial Governor of Zamboanga
del Sur in May 2013."13
These cases are not rendered moot by Jalosjos resignation. In resolving Jalosjos Motion for
Reconsideration in G.R. No. 193237 and Cardinos Petition in G.R. No. 193536, we address not only
Jalosjos eligibility to run for public office and the consequences of the cancellation of his certificate of
candidacy, but also COMELECs constitutional duty to enforce and administer all laws relating to the
conduct of elections.
The Issues
In G.R. No. 193237, Jalosjos argues that the COMELEC committed grave abuse of discretion amounting
to lack or excess of jurisdiction when it (1) ruled that Jalosjos probation was revoked; (2) ruled that
Jalosjos was disqualified to run as candidate for Mayor of Dapitan City, Zamboanga del Norte; and (3)
cancelled Jalosjos certificate of candidacy without making a finding that Jalosjos committed a deliberate
misrepresentation as to his qualifications, as Jalosjos relied in good faith upon a previous COMELEC
decision declaring him eligible for the same position from which he is now being ousted. Finally, the
Resolutions dated 10 May 2010 and 11 August 2010 were issued in violation of the COMELEC Rules of
Procedure.
In G.R. No. 193536, Cardino argues that the COMELEC acted with grave abuse of discretion amounting
to lack or excess of jurisdiction when it added to the dispositive portion of its 11 August 2010 Resolution
that the provisions of the Local Government Code on succession should apply.
This Courts Ruling
The perpetual special disqualification against Jalosjos arising from his criminal conviction by final
judgment is a material fact involving eligibility which is a proper ground for a petition under Section 78 of
the Omnibus Election Code. Jalosjos certificate of candidacy was void from the start since he was not
eligible to run for any public office at the time he filed his certificate of candidacy. Jalosjos was never a
candidate at any time, and all votes for Jalosjos were stray votes. As a result of Jalosjos certificate of
candidacy being void ab initio, Cardino, as the only qualified candidate, actually garnered the highest
number of votes for the position of Mayor.
The dissenting opinions affirm with modification the 10 May 2010 Resolution of the COMELEC First
Division and the 11 August 2010 Resolution of the COMELEC En Banc. The dissenting opinions
erroneously limit the remedy against Jalosjos to disqualification under Section 68 of the Omnibus Election
Code and apply the rule on succession under the Local Government Code.
A false statement in a certificate of candidacy that a candidate is eligible to run for public office is a false
material representation which is a ground for a petition under Section 78 of the same Code. Sections 74
and 78 read:
Sec. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person
filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for
Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or
district or sector which he seeks to represent; the political party to which he belongs; civil status; his date
of birth; residence; his post office address for all election purposes; his profession or occupation; that he
will support and defend the Constitution of the Philippines and will maintain true faith and allegiance
thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted
authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation
imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that
the facts stated in the certificate of candidacy are true to the best of his knowledge.
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to
deny due course or to cancel a certificate of candidacy may be filed by the 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. (Emphasis supplied)
Section 74 requires the candidate to state under oath in his certificate of candidacy "that he is eligible for
said office." A candidate is eligible if he has a right to run for the public office. 14 If a candidate is not
actually eligible because he is barred by final judgment in a criminal case from running for public office,
and he still states under oath in his certificate of candidacy that he is eligible to run for public office, then
the candidate clearly makes a false material representation that is a ground for a petition under Section
78.
A sentence of prisin mayor by final judgment is a ground for disqualification under Section 40 of the
Local Government Code and under Section 12 of the Omnibus Election Code. It is also a material fact
involving the eligibility of a candidate under Sections 74 and 78 of the Omnibus Election Code. Thus, a
person can file a petition under Section 40 of the Local Government Code or under either Section 12 or
Section 78 of the Omnibus Election Code. The pertinent provisions read:
Section 40, Local Government Code:
Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local
position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad
and continue to avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
Section 12, Omnibus Election Code:
Sec. 12. Disqualifications. Any person who has been declared by competent authority insane or
incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any
offense for which he was sentenced to a penalty of more than eighteen months or for a crime involving
moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given
plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by
competent authority that said insanity or incompetence had been removed or after the expiration of a
period of five years from his service of sentence, unless within the same period he again becomes
disqualified.
Section 68, Omnibus Election Code:
Sec. 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared
by final decision by a competent court guilty of, or found by the Commission of having (a) given money or
other material consideration to influence, induce or corrupt the voters or public officials performing
electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85,
86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of
or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code,
unless said person has waived his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election laws.
Revised Penal Code:
Art. 27. Reclusion perpetua. x x x
Prisin mayor and temporary disqualification. The duration of the penalties of prisin mayor and
temporary disqualification shall be from six years and one day to twelve years, except when the penalty of
disqualification is imposed as an accessory penalty, in which case, it shall be that of the principal penalty.
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Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. The penalties of
perpetual or temporary absolute disqualification for public office shall produce the following effects:
1. The deprivation of the public offices and employments which the offender may have held, even
if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular elective office or to be
elected to such office.
3. The disqualification for the offices or public employments and for the exercise of any of the
rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3
of this article shall last during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office formerly held.
Art. 31. Effects of the penalties of perpetual or temporary special disqualification. The penalties of
perpetual or temporary special disqualification for public office, profession or calling shall produce the
following effects:
1. The deprivation of the office, employment, profession or calling affected.
2. The disqualification for holding similar offices or employments either perpetually or during the
term of the sentence, according to the extent of such disqualification.
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the
right of suffrage. The perpetual or temporary special disqualification for the exercise of the right of
suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature
of said penalty, of the right to vote in any popular election for any public office or to be elected to such
office. Moreover, the offender shall not be permitted to hold any public office during the period of his
disqualification.
Art. 42. Prisin mayor its accessory penalties. The penalty of prisin mayor shall carry with it that of
temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage
which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have
been expressly remitted in the pardon. (Emphasis supplied)
The penalty of prisin mayor automatically carries with it, by operation of law,15 the accessory penalties of
temporary absolute disqualification and perpetual special disqualification. Under Article 30 of the Revised
Penal Code, temporary absolute disqualification produces the effect of "deprivation of the right to vote in
any election for any popular elective office or to be elected to such office." The duration of the temporary
absolute disqualification is the same as that of the principal penalty. On the other hand, under Article 32 of
the Revised Penal Code perpetual special disqualification means that "the offender shall not be permitted
to hold any public office during the period of his disqualification," which is perpetually. Both temporary
absolute disqualification and perpetual special disqualification constitute ineligibilities to hold elective
public office. A person suffering from these ineligibilities is ineligible to run for elective public office, and
commits a false material representation if he states in his certificate of candidacy that he is eligible to so
run.
In Lacuna v. Abes,16 the Court, speaking through Justice J.B.L. Reyes, explained the import of the
accessory penalty of perpetual special disqualification:
On the first defense of respondent-appellee Abes, it must be remembered that appellees conviction of a
crime penalized with prisin mayor which carried the accessory penalties of temporary absolute
disqualification and perpetual special disqualification from the right of suffrage (Article 42, Revised Penal
Code); and Section 99 of the Revised Election Code disqualifies a person from voting if he had been
sentenced by final judgment to suffer one year or more of imprisonment.
The accessory penalty of temporary absolute disqualification disqualifies the convict for public office and
for the right to vote, such disqualification to last only during the term of the sentence (Article 27,
paragraph 3, & Article 30, Revised Penal Code) that, in the case of Abes, would have expired on 13
October 1961.
But this does not hold true with respect to the other accessory penalty of perpetual special disqualification
for the exercise of the right of suffrage. This accessory penalty deprives the convict of the right to vote or
to be elected to or hold public office perpetually, as distinguished from temporary special disqualification,
which lasts during the term of the sentence. Article 32, Revised Penal Code, provides:
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the
right of suffrage. The perpetual or temporary special disqualification for the exercise of the right of
suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature
of said penalty, of the right to vote in any popular election for any public office or to be elected to such
office. Moreover, the offender shall not be permitted to hold any public office during the period of
disqualification.
The word "perpetually" and the phrase "during the term of the sentence" should be applied distributively
to their respective antecedents; thus, the word "perpetually" refers to the perpetual kind of special
disqualification, while the phrase "during the term of the sentence" refers to the temporary special
disqualification. The duration between the perpetual and the temporary (both special) are necessarily
different because the provision, instead of merging their durations into one period, states that such
duration is "according to the nature of said penalty" which means according to whether the penalty is
the perpetual or the temporary special disqualification. (Emphasis supplied)
Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives the
convict of the right to vote or to be elected to or hold public office perpetually."
The accessory penalty of perpetual special disqualification takes effect immediately once the judgment of
conviction becomes final. The effectivity of this accessory penalty does not depend on the duration of the
principal penalty, or on whether the convict serves his jail sentence or not. The last sentence of Article 32
states that "the offender shall not be permitted to hold any public office during the period of his perpetual
special disqualification." Once the judgment of conviction becomes final, it is immediately executory. Any
public office that the convict may be holding at the time of his conviction becomes vacant upon finality of
the judgment, and the convict becomes ineligible to run for any elective public office perpetually. In the
case of Jalosjos, he became ineligible perpetually to hold, or to run for, any elective public office from the
time his judgment of conviction became final.
Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus Election
Code because this accessory penalty is an ineligibility, which means that the convict is not eligible to run
for public office, contrary to the statement that Section 74 requires him to state under oath. As used in
Section 74, the word "eligible" means having the right to run for elective public office, that is, having all the
qualifications and none of the ineligibilities to run for public office. As this Court held in Fermin v.
Commission on Elections,17 the false material representation may refer to "qualifications or eligibility." One
who suffers from perpetual special disqualification is ineligible to run for public office. If a person suffering
from perpetual special disqualification files a certificate of candidacy stating under oath that "he is eligible
to run for (public) office," as expressly required under Section 74, then he clearly makes a false material
representation that is a ground for a petition under Section 78. As this Court explained in Fermin:
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the
lack of qualifications but on a finding that the candidate made a material representation that is false,
which may relate to the qualifications required of the public office he/she is running for. It is noted that the
candidate states in his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC,
therefore, is to be read in relation to the constitutional and statutory provisions on qualifications or
eligibility for public office. If the candidate subsequently states a material representation in the CoC that is
false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate.
Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under
Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with the
distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a petition for
quo warranto is filed after proclamation of the winning candidate. 18 (Emphasis supplied)
Conviction for robbery by final judgment with the penalty of prisin mayor, to which perpetual special
disqualification attaches by operation of law, is not a ground for a petition under Section 68 because
robbery is not one of the offenses enumerated in Section 68. Insofar as crimes are concerned, Section 68
refers only to election offenses under the Omnibus Election Code and not to crimes under the Revised
Penal Code. For ready reference, we quote again Section 68 of the Omnibus Election Code:
Sec. 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared
by final decision by a competent court guilty of, or found by the Commission of having (a) given money or
other material consideration to influence, induce or corrupt the voters or public officials performing
electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in
excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under
Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e,
k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this Code, unless said person has waived
his status as permanent resident or immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws. (Emphasis supplied)
There is absolutely nothing in the language of Section 68 that will justify including the crime of robbery as
one of the offenses enumerated in this Section. All the offenses enumerated in Section 68 refer to
offenses under the Omnibus Election Code. The dissenting opinion of Justice Reyes gravely errs when it
holds that Jalosjos conviction for the crime of robbery under the Revised Penal Code is a ground for "a
petition for disqualification under Section 68 of the OEC and not for cancellation of COC under Section 78
thereof." This Court has already ruled that offenses punished in laws other than in the Omnibus Election
Code cannot be a ground for a petition under Section 68. In Codilla, Sr. v. de Venecia, 19 the Court
declared:
The jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of
the Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC
jurisdiction.They are criminal and not administrative in nature. (Emphasis supplied)
A candidate for mayor during the 2010 local elections certifies under oath four statements: (1) a statement
that the candidate is a natural born or naturalized Filipino citizen; (2) a statement that the candidate is not
a permanent resident of, or immigrant to, a foreign country; (3) a statement that the candidate is eligible
for the office he seeks election; and (4) a statement of the candidates allegiance to the Constitution of the
Republic of the Philippines.20
We now ask: Did Jalosjos make a false statement of a material fact in his certificate of candidacy when he
stated under oath that he was eligible to run for mayor? The COMELEC and the dissenting opinions all
found that Jalosjos was not eligible to run for public office. The COMELEC concluded that Jalosjos made
a false material representation that is a ground for a petition under Section 78. The dissenting opinion of
Justice Reyes, however, concluded that the ineligibility of Jalosjos is a disqualification which is a ground
for a petition under Section 68 and not under Section 78. The dissenting opinion of Justice Brion
concluded that the ineligibility of Jalosjos is a disqualification that is not a ground under Section 78
without, however, saying under what specific provision of law a petition against Jalosjos can be filed to
cancel his certificate of candidacy.
What is indisputably clear is that the false material representation of Jalosjos is a ground for a petition
under Section 78. However, since the false material representation arises from a crime penalized by
prisin mayor, a petition under Section 12 of the Omnibus Election Code or Section 40 of the Local
Government Code can also be properly filed. The petitioner has a choice whether to anchor his petition
on Section 12 or Section 78 of the Omnibus Election Code, or on Section 40 of the Local Government
Code. The law expressly provides multiple remedies and the choice of which remedy to adopt belongs to
the petitioner.
The COMELEC properly cancelled Jalosjos certificate of candidacy. A void certificate of candidacy on the
ground of ineligibility that existed at the time of the filing of the certificate of candidacy can never give rise
to a valid candidacy, and much less to valid votes. 21 Jalosjos certificate of candidacy was cancelled
because he was ineligible from the start to run for Mayor. Whether his certificate of candidacy is cancelled
before or after the elections is immaterial because the cancellation on such ground means he was never
a valid candidate from the very beginning, his certificate of candidacy being void ab initio. Jalosjos
ineligibility existed on the day he filed his certificate of candidacy, and the cancellation of his certificate of
candidacy retroacted to the day he filed it. Thus, Cardino ran unopposed. There was only one qualified
candidate for Mayor in the May 2010 elections Cardino who received the highest number of votes.
Decisions of this Court holding that the second-placer cannot be proclaimed winner if the first-placer is
disqualified or declared ineligible22 should be limited to situations where the certificate of candidacy of the
first-placer was valid at the time of filing but subsequently had to be cancelled because of a violation of
law that took place, or a legal impediment that took effect, after the filing of the certificate of candidacy. If
the certificate of candidacy is void ab initio, then legally the person who filed such void certificate of
candidacy was never a candidate in the elections at any time. All votes for such non-candidate are stray
votes and should not be counted. Thus, such non-candidate can never be a first-placer in the elections. If
a certificate of candidacy void ab initio is cancelled on the day, or before the day, of the election,
prevailing jurisprudence holds that all votes for that candidate are stray votes. 23 If a certificate of
candidacy void ab initio is cancelled one day or more after the elections, all votes for such candidate
should also be stray votes because the certificate of candidacy is void from the very beginning. This is the
more equitable and logical approach on the effect of the cancellation of a certificate of candidacy that is
void ab initio. Otherwise, a certificate of candidacy void ab initio can operate to defeat one or more valid
certificates of candidacy for the same position.
Even without a petition under either Section 12 or Section 78 of the Omnibus Election Code, or under
Section 40 of the Local Government Code, the COMELEC is under a legal duty to cancel the certificate of
candidacy of anyone suffering from the accessory penalty of perpetual special disqualification to run for
public office by virtue of a final judgment of conviction. The final judgment of conviction is notice to the
COMELEC of the disqualification of the convict from running for public office. The law itself bars the
convict from running for public office, and the disqualification is part of the final judgment of conviction.
The final judgment of the court is addressed not only to the Executive branch, but also to other
government agencies tasked to implement the final judgment under the law.
Whether or not the COMELEC is expressly mentioned in the judgment to implement the disqualification, it
is assumed that the portion of the final judgment on disqualification to run for elective public office is
addressed to the COMELEC because under the Constitution the COMELEC is duty bound to "enforce
and administer all laws and regulations relative to the conduct of an election." 24 The disqualification of a
convict to run for public office under the Revised Penal Code, as affirmed by final judgment of a
competent court, is part of the enforcement and administration of "all laws" relating to the conduct of
elections.
To allow the COMELEC to wait for a person to file a petition to cancel the certificate of candidacy of one
suffering from perpetual special disqualification will result in the anomaly that these cases so grotesquely
exemplify. Despite a prior perpetual special disqualification, Jalosjos was elected and served twice as
mayor. The COMELEC will be grossly remiss in its constitutional duty to "enforce and administer all laws"
relating to the conduct of elections if it does not motu proprio bar from running for public office those
suffering from perpetual special disqualification by virtue of a final judgment.
WHEREFORE, the Motion for Reconsideration in G.R. No. 193237 is DENIED, and the Petition in G.R.
No. 193536 is GRANTED. The Resolutions dated 10 May 2010 and 11 August 2010 of the COMELEC
First Division and the COMELEC En Bane, respectively, in SPA No. 09-076 (DC), are AFFIRMED with the
MODIFICATION that Agapito J. Cardino ran unopposed in the May 2010 elections and thus received the
highest number of votes for Mayor. The COMELEC En Bane is DIRECTED to constitute a Special City
Board of Canvassers to proclaim Agapito J. Cardino as the duly elected Mayor of Dapitan City,
Zamboanga del Norte.
Let copies of this Decision be furnished the Secretaries of the Department of Justice and the Department
of Interior and Local Government so they can cause the arrest of, and enforce the jail sentence on,
Dominador G. Jalosjos, Jr. due to his conviction for the crime of robbery in a final judgment issued by the
Regional Trial Court (Branch 18) of Cebu City in Criminal Case No. CCC-XIV-140-CEBU.
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rommel jalosjos v comelec


Petitioner Rommel Jalosjos was born in Quezon City on October 26, 1973. He migrated to Australia in
1981 when he was eight years old and there acquired Australian citizenship. On November 22, 2008, at
age 35, he decided to return to the Philippines and lived with his brother, Romeo, Jr., in Barangay
Veterans Village, Ipil, Zamboanga Sibugay. Four days upon his return, he took an oath of allegiance to
the Republic of the Philippines, resulting in his being issued a Certificate of Reacquisition of Philippine
Citizenship by the Bureau of Immigration.1 On September 1, 2009 he renounced his Australian
citizenship, executing a sworn renunciation of the same 2 in compliance with Republic Act (R.A.) 9225.3
From the time of his return, Jalosjos acquired a residential property in the same village where he lived
and a fishpond in San Isidro, Naga, Zamboanga Sibugay. He applied for registration as a voter in the
Municipality of Ipil but respondent Dan Erasmo, Sr., the Barangay Captain of Barangay Veterans Village,
opposed the same. Acting on the application, the Election Registration Board approved it and included
Jalosjos name in the Commission on Elections (COMELECs) voters list for Precinct 0051F of Barangay
Veterans Village, Ipil, Zamboanga Sibugay.4
Undaunted, Erasmo filed before the 1st Municipal Circuit Trial Court (MCTC) of Ipil-Tungawan-R.T. Lim in
Ipil a petition for the exclusion of Jalosjos name from the official voters list. After hearing, the MCTC
rendered a decision, denying the petition.5 On appeal,6 the Regional Trial Court (RTC) affirmed the MCTC
decision. The RTC decision became final and executory.
On November 28, 2009 Jalosjos filed his Certificate of Candidacy (COC) for Governor of Zamboanga
Sibugay Province for the May 10, 2010 elections. Erasmo promptly filed a petition to deny due course or
to cancel Jalosjos COC7 on the ground that the latter made material misrepresentation in the same since
he failed to comply with (1) the requirements of R.A. 9225 and (2) the one-year residency requirement of
the Local Government Code.

xxx

It is inevitable under these guidelines and the precedents applying them that Jalosjos has met the
residency requirement for provincial governor of Zamboanga Sibugay.
One. The COMELEC appears hasty in concluding that Jalosjos failed to prove that he successfully
changed his domicile to Zamboanga Sibugay. The COMELEC points out that, since he was unable to
discharge the burden of proving Zamboanga Sibugay to be his rightful domicile, it must be assumed that
his domicile is either Quezon City or Australia.
But it is clear from the facts that Quezon City was Jalosjos domicile of origin, the place of his birth. It may
be taken for granted that he effectively changed his domicile from Quezon City to Australia when he
migrated there at the age of eight, acquired Australian citizenship, and lived in that country for 26 years.
Australia became his domicile by operation of law and by choice. 14
On the other hand, when he came to the Philippines in November 2008 to live with his brother in
Zamboanga Sibugay, it is evident that Jalosjos did so with intent to change his domicile for good. He left
Australia, gave up his Australian citizenship, and renounced his allegiance to that country. In addition, he
reacquired his old citizenship by taking an oath of allegiance to the Republic of the Philippines, resulting
in his being issued a Certificate of Reacquisition of Philippine Citizenship by the Bureau of Immigration.
By his acts, Jalosjos forfeited his legal right to live in Australia, clearly proving that he gave up his domicile
there. And he has since lived nowhere else except in Ipil, Zamboanga Sibugay.
To hold that Jalosjos has not establish a new domicile in Zamboanga Sibugay despite the loss of his
domicile of origin (Quezon City) and his domicile of choice and by operation of law (Australia) would
violate the settled maxim that a man must have a domicile or residence somewhere.
Two. The COMELEC concluded that Jalosjos has not come to settle his domicile in Ipil since he has
merely been staying at his brothers house. But this circumstance alone cannot support such conclusion.
Indeed, the Court has repeatedly held that a candidate is not required to have a house in a community to
establish his residence or domicile in a particular place. It is sufficient that he should live there even if it be
in a rented house or in the house of a friend or relative. 15 To insist that the candidate own the house
where he lives would make property a qualification for public office. What matters is that Jalosjos has
proved two things: actual physical presence in Ipil and an intention of making it his domicile.
Jalosjos presented the affidavits of next-door neighbors, attesting to his physical presence at his
residence in Ipil. These adjoining neighbors are no doubt more credible since they have a better chance
of noting his presence or absence than his other neighbors, whose affidavits Erasmo presented, who just
sporadically passed by the subject residence. Further, it is not disputed that Jalosjos bought a residential
lot in the same village where he lived and a fish pond in San Isidro, Naga, Zamboanga Sibugay. He
showed correspondences with political leaders, including local and national party-mates, from where he
lived. Moreover, Jalosjos is a registered voter of Ipil by final judgment of the Regional Trial Court of
Zamboanga Sibugay.1wphi1
Three. While the Court ordinarily respects the factual findings of administrative bodies like the COMELEC,
this does not prevent it from exercising its review powers to correct palpable misappreciation of evidence
or wrong or irrelevant considerations.16 The evidence Jalosjos presented is sufficient to establish Ipil,
Zamboanga Sibugay, as his domicile. The COMELEC gravely abused its discretion in holding otherwise.
Four. Jalosjos won and was proclaimed winner in the 2010 gubernatorial race for Zamboanga Sibugay.
The Court will respect the decision of the people of that province and resolve all doubts regarding his
qualification in his favor to breathe life to their manifest will.
WHEREFORE, the Court GRANTS the petition and SETS ASIDE the Resolution of the COMELEC
Second Division dated February 11, 2010 and the Resolution of the COMELEC En Banc dated May 4,
2010 that disqualified petitioner Rommel Jalosjos from seeking election as Governor of Zamboanga
Sibugay.

G.R. No. 146875 July 14, 2003 KAGAWADS JOSE G.


MENDOZA, ROSARIO B. ESPINO, TERESITA S. MENDOZA,
JORGE BANAL, Chairman of the Special Investigation
Committee on Administrative Cases Against Elected Barangay
Officials of the Quezon City Council and ISMAEL A. MATHAY,
JR., City Mayor of Quezon City, petitioners, vs. BARANGAY
CAPTAIN MANUEL D. LAXINA, SR., respondent.
To be sure, an oath of office is a qualifying requirement for
a public office; a prerequisite to the full investiture with the
office. It is only when the public officer has satisfied the
prerequisite of oath that his right to enter into the position
becomes plenary and complete.33 However, once
proclaimed and duly sworn in office, a public officer is
entitled to assume office and to exercise the functions
thereof. The pendency of an election protest is not
sufficient basis to enjoin him from assuming office or from
discharging his functions.34 Unless his election is annulled
by a final and executory decision,35 or a valid execution of
an order unseating him pending appeal is issued, he has
the lawful right to assume and perform the duties of the
office to which he has been elected.
To be sure, an oath of office is a qualifying requirement for a public office; a prerequisite to the
full investiture with the office. 15 Only when the public officer has satisfied the prerequisite of
oath that his right to enter into the position becomes plenary and complete. Until then, he has
none at all. And for as long as he has not qualified, the holdover officer is the rightful occupant.
It is thus clear in the present case that since Red never qualified for the post, petitioner Lenlie
Lecaroz remained KB representative to the Sanggunian, albeit in a carry over capacity, and was
in every aspect a de jure officer, 16 or at least a de facto officer 17 entitled to receive the salaries
and all the emoluments appertaining to the position. As such, he could not be considered an
intruder and liable for encroachment of public office. 18
MIDTERM EXAMINATION IN ELECTION LAW
Read the facts carefully. Answer briefly and concisely the questions
that follow.
Always explain or support your answer.

CASE NO. 1: The petitioner, Alfredo Guieb and the private respondent,
Manuel Asuncion, were candidates for the position of Punong Barangay of
Barangay Nilombot, Sta. Barbara, Pangasinan, in the barangay election of
9 May 1994. After the canvass of votes in the said barangay, the former
was proclaimed as the winning candidate. The latter then seasonably filed
an election protest with the Municipal Trial Court (MTC) of Sta. Barbara,
Pangasinan.
On 27 May 1994, the MTC, per Judge Lilia C. Espaol, rendered a
decision confirming the proclamation of the petitioner and dismissing the
protest of the private respondent.
The private respondent appealed the decision to the Regional Trial Court
(RTC) of Dagupan City. The case was assigned to Branch 42 thereof.
In its decision of 31 August 1994, the RTC, per respondent Judge
Luis M. Fontanilla, reversed the decision of the MTC, annulled the
proclamation of the petitioner, and declared the private respondent as the
winning candidate with a plurality of four votes over the petitioner.
After the petitioner's motion for reconsideration of the decision was denied
on 25 November 1994, the private respondent immediately filed a motion
for the issuance of a writ of execution.
In its order of 8 December 1994, 5 the RTC declared that the motion should
be properly filed with the court of origin and that the decision of 31 August
1994 had already become final; it then ordered the remand of the records
of the case to the MTC of Sta. Barbara, Pangasinan, for proper disposition.
On 12 December 1994, the petitioner filed with this Court a motion for
extension of time to file a petition for review on certiorari. On 29 December
1994, he sent by registered mail his petition, which this Court received only
on 25 January 1995. It turned out, however, that his motion for extension of
time to file a petition had already been denied on 4 January 1995 for his
failure to submit an affidavit of service of that motion. On 8 February 1995,
he filed a motion for the reconsideration of the denial.
Meanwhile, on 20 December 1994, the private respondent filed with
the MTC a motion for the issuance of a writ of execution. 6
In its order of 19 January 1995, the MTC deferred action on the said
motion and required the petitioner's counsel to inform the court of the status
of his petition with this Court. For failure of the petitioner's counsel to
comply with the said order, the court issued an order on 7 February
1995 granting the issuance of a writ of execution. On 13 February 1995,
however, the court received the said counsel's Compliance dated 9
February 1995 9 wherein he informed the court of the petitioner's motion to
reconsider this Court's resolution denying the motion for extension of time
to file his petition.
In the resolution of 8 February 1995, this Court required the
respondent to comment on the petition.
On 16 February 1995, the petitioner filed with the MTC an Urgent Motion to
Stay and/or Suspend Execution. This motion was, however, denied on the
ground that the writ, having been hand-carried by the private respondent to
the office of the sheriff, must have already been implemented and,
therefore, the motion to stay or suspend the same has become moot and
academic.
On 20 March 1995, the sheriff returned the writ of execution with the
information that in the presence of a barangay kagawad and barangay
residents, he enforced the writ and proclaimed the private respondent as
Punong Barangay of Barangay Nilombot, Sta. Barbara, Pangasinan.
QUESTION 1.On the basis of the above facts, who should be the rightful
punong barangay of Nilombot? Support your answer.

ANSWE NO. 1: Alfredo Guieb is the rightful punong barangay.The decision


in the MTC in favor of Guieb had become final, considering that his
opponent made the wrong appeal to the RTC.( GUIEB vs. FONTANILLA,
ET AL. (G.R. No. 118118 August 14, 1995)

CASE NO. 2: Facts: In its Minute Resolution No. 96-3076 of 29 October


1996, the Commission on Elections (COMELEC) resolved to file an
information for violation of Section 261(i) of the Omnibus Election Code
against private respondents Diosdada Amor, a public school principal, and
Esbel Chua and Ruben Magluyoan, both public school teachers, for having
engaged in partisan political activities. The COMELEC authorized its
Regional Director in Region VIII to handle the prosecution of the cases.
Forthwith, nine informations for violation of Section 261(i) of the
Omnibus Election were filed with Branch 23 of the Regional Trial Court of
Alien, Northern Samar, and docketed therein as follows:
a) Criminal Cases Nos. A-1439 and A-1442, against private
respondents Diosdada Amor, Esbel Chua, and Ruben Magluyoan.
b) Criminal Case No. A-1443, against private respondents Esbel
Chua and Ruben Magluyoan.
c) Criminal Cases Nos. A-1444 and A-1445, against private
respondent Esbel Chua only;
d) Criminal Cases Nos. A-1446 to A-1449, against private
respondent Diosdada Amor only.

In an Order 2 issued on 25 August 1997, respondent Judge Tomas B.


Noynay, as presiding judge of Branch 23, motu proprio ordered the records
of the cases to be withdrawn and directed the COMELEC Law Department
to file the cases with the appropriate Municipal Trial Court on the ground
that pursuant to Section 32 of B.P. Blg. 129 as amended by R.A. No. 7691,
the Regional Trial Court has no jurisdiction over the cases since the
maximum imposable penalty in each of the cases does not exceed six
years of imprisonment. Pertinent portions of the Order read as follows:
It is worth pointing out that all the accused are uniformly charged for
[sic] Violation of Sec. 261(i) of the Omnibus Election Code, which under
Sec. 264 of the same Code carries a penalty of not less than one (1) year
but not more than six (6) years of imprisonment and not subject to
Probation plus disqualification to hold public office or deprivation of the right
of suffrage.
Sec. 31 [sic] of the Judiciary Reorganization Act of 1980 (B.P.) Blg.
129 as Amended by Rep. Act. 6691 [sic] (Expanded Jurisdiction) states:
Sec. 32. Jurisdiction Metropolitan Trial Courts, Municipal Circuit Trial
Courts, Municipal Trial Courts in Criminal Cases Except [in] cases falling
within the exclusive original jurisdiction of the Regional Trial Courts and the
Sandiganbayan, the Municipal Trial Courts, Metropolitan Trial Courts and
the Municipal Circuit Trial Courts shall exercise:
(1) Exclusive original jurisdiction over all violations of city or
municipal ordinance committed within their respective territorial jurisdiction;
and
(2) Exclusive original jurisdiction over all offenses punishable
with an imprisonment of not exceeding six (6) years irrespective of the
amount or fine and regardless of other imposable accessory and other
penalties including the civil liability arising from such offenses or predicated
thereon, irrespective of time [sic], nature, value and amount thereof,
Provided, However, that in offenses including damages to property through
criminal negligence, they shall have exclusive original jurisdiction thereof.
In light of the foregoing, this Court has therefore, no jurisdiction over
the cases filed considering that the maximum penalty imposable did not
exceed six (6) years.
The two motions for reconsideration separately filed by the
COMELEC Regional Director of Region VIII and by the COMELEC itself
through its Legal Department having been denied by the public respondent
in the Order of 17 October 1997, the petitioner filed this special civil action.
It contends that public respondent "has erroneously misconstrued the
provisions of Rep. Act No. 7691 in arguing that the Municipal Trial Court
has exclusive original jurisdiction to try and decide election offenses"
because pursuant to Section 268 of the Omnibus Election Code and this
Court's ruling in "Alberto [sic] vs. Judge Juan Lavilles, Jr.," Regional Trial
Courts have the exclusive original jurisdiction over election offenses.

QUESTION: Which Court, MTC or RTC has jurisdiction over the said
offenses? Explain your ANSWER.

ANSWER NO.2: The RTC has jurisdiction. We have explicitly ruled


inMorales v. Court of Appeals[i][7] that by virtue of the exception provided for
in the opening sentence of Section 32, the exclusive original jurisdiction of
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial
Courts does not cover those criminal cases which by specific provisions of
law fall within the exclusive original jurisdiction of Regional Trial Courts and
of the Sandiganbayan, regardless of the penalty prescribed
therefor. Otherwise stated, even if those excepted cases are punishable by
imprisonment of not exceeding six (6) years (i.e., prision correccional,
arresto mayor, orarresto menor), jurisdiction thereon is retained by the
Regional Trial Courts or the Sandiganbayan, as the case may be.
Among the examples cited in Morales as falling within the exception
provided for in the opening sentence of Section 32 are cases under (1)
Section 20 of B.P. Blg. 129; (2) Article 360 of the Revised Penal Code, as
amended; (3) the Decree on Intellectual Property; [ii][8] and (4) the Dangerous
Drugs Act of 1972,[iii][9] as amended.
Undoubtedly, pursuant to Section 268 of the Omnibus Election Code,
election offenses also fall within the exception.
As we stated in Morales, jurisdiction is conferred by the Constitution or
by Congress. Outside the cases enumerated in Section 5(2) of Article VIII
of the Constitution, Congress has the plenary power to define, prescribe,
and apportion the jurisdiction of various courts. Congress may thus provide
by law that a certain class of cases should be exclusively heard and
determined by one court. Such law would be a special law and must be
construed as an exception to the general law on jurisdiction of courts,
namely, the Judiciary Act of 1948, as amended, and the Judiciary
Reorganization Act of 1980. R.A. No. 7691 can by no means be
considered as a special law on jurisdiction; it is merely an amendatory law
intended to amend specific sections of the Judiciary Reorganization Act of
1980. Hence, R.A. No. 7691 does not have the effect of repealing laws
vesting upon Regional Trial Courts or the Sandiganbayan exclusive original
jurisdiction to hear and decide the cases therein specified. That Congress
never intended that R.A.No. 7691 should repeal such special provisions is
indubitably evident from the fact that it did not touch at all the opening
sentence of Section 32 of B.P. Blg. 129 providing for the exception.
It is obvious that respondent judge did not read at all the opening sentence
of Section 32 of B.P. Blg. 129, as amended. It is thus an opportune time,
as any, to remind him, as well as other judges, of his duty to be studious of
the principles of law,[iv][10] to administer his office with due regard to the
integrity of the system of the law itself, [v][11] to be faithful to the law, and to
maintain professional competence.[vi][12]COMMISSION ON ELECTIONS,
petitioner,vs. HON. TOMAS B. NOYNAY, Acting Presiding Judge, Regional
Trial Court, Branch 23, Allen, Northern Samar, and DIOSDADA F. AMOR,
ESBEL CHUA, and RUBEN MAGLUYOAN, respondents. (G.R. No.
132365 July 9, 1998)

CASE NO. 3: Facts: After the results of the May 8, 1995 elections were
canvassed in 73 precincts in the Municipality of Matnog, Province of
Sorsogon, petitioner Gerry B. Garay, a candidate for vice-mayor, was
credited with 5,411 votes and private respondent Jaime Gata, Jr., his rival,
5,391 or a margin of twenty (20) votes in favor of petitioner. The said
results, however, excluded the votes from precinct 30-A of Barangay
Culasi, Matnog, where armed men forcibly took the ballot box together with
the election returns, other election papers, documents and/or
paraphernalia.
Because the votes in precinct 30-A would obviously affect the standing of
the said candidates, the Municipal Board of Canvassers (MBC) did not
proclaim the winner. Failing to convince said Board to proclaim him by
virtue of a certificate of votes issued by the Board of Election Inspectors
(BEI) showing he garnered 116 votes against 68 votes for Garay in said
precinct, respondent Gata brought the matter to the respondent
Commission. In his appeal, 3 respondent Gata included a copy of the Tally
Board, duly authenticated by the BEI, showing the same count as the
Certificate of Votes: that is, Gata 116 votes and Garay 68 votes. If these
were added to the already canvassed votes, Gata would win by a 28-vote
margin.
In the meantime, while the said appeal was pending, respondent
COMELEC upon recommendation of Comm. Julio Desamito conducted a
special election in precinct 30-A, 4 on the ground of failure of election due
to the loss of the ballot box and the election documents. Both petitioner
Garay and respondent Gata actively participated in the election which was
held on June 7, 1995. Petitioner won handily in the said election and was
thereafter proclaimed Vice-Mayor of Matnog.
The Comelec First Division denied due course to the appeal because
of appellant's (Gata) failure "to furnish the Commission all pertinent
documents necessary for the latter to rule on the matter." Respondent
Gata's motion for reconsideration of this Comelec action is still pending
before the Comelec First Division. Subsequently, the COMELEC En Banc
issued a Resolution promulgated on August 7, 1995 annulling the special
election and directing the MBC to reconvene and to include "in the
canvass, the votes reflected on the Tally Board submitted by the Board of
Election Inspectors . . . ." As a result, respondent Gata was declared
winner. The Commissioner En Banc said that it was "convinced without
taint of any doubt that the votes shown in the tally board and certificate of
votes reflect the true and genuine will of the electorate. . . ."
QUESTION: 1.Discuss whether the COMELEC EN BANC is correct in its
action.

ANSWER NO 3: Comelec en banc is wrong. After judicious deliberation


and consultation, we hold that the Comelec En Banc gravely abused its
discretion when it decided to set aside and annul the special election it had
earlier called and conducted because of failure of election due to the
forcible taking by armed men of the ballot box together with the election
returns and other election documents and paraphernalia.
The respondent Commission's plea that it is "convinced without taint of
any doubt that the votes shown in the tally board and certificate of votes
reflect the true and genuine will of the electorate" is weak and unpersuasive
because the Certificate of Votes and the Tally Board were already in the
possession of the COMELEC before it decided to call the special
election. Note that private respondent Gata presented the Certificate
before the Municipal Board of Canvassers (MBC) during the
canvassing. When the latter rejected it, Gata appealed to the COMELEC
from the said ruling, attaching to his appeal a copy of the Tally
Board. Nevertheless, the respondent Commission still decided to hold the
special election.
The Certificate of Votes presented by Gata may have been obtained by
him pursuant to Section 16 of R.A. No. 6646 (The Electoral Reform Law of
1987).[vii][7]
Thus, when the said Certificate was rejected by the MBC, it must have
been because Gata not only failed to comply with the procedure for its
identification and offer as mandated in Section 17 of R.A. No. 6646 which
reads:
"SEC. 17. Certificate of Votes as Evidence. - The provisions of
Sections 235 and 236 of Batas Pambansa Blg. 881 notwithstanding, the
certificate of votes shall be admissible in evidence to prove tampering,
alteration, falsification or any anomaly committed in the election returns
concerned, when duly authenticated by testimonial or documentary
evidence presented to the board of canvassers by at least two members of
the board of election inspectors who issued the certificate: Provided, That
failure to present any certificate of votes shall not be a bar to the
presentation of other evidence to impugn the authenticity of the election
returns."
but also because a certificate of votes can never be a valid basis for
canvass. According to Section 17, a certificate of votes can only be
"evidence to prove tampering, alteration, falsification or any other anomaly
committed in the election returns concerned, when duly authenticated x x
x." A certificate of votes does not constitute sufficient evidence of the true
and genuine results of the election; only election returns are, pursuant to
Sections 231, 233-236, and 238 of B.P. Blg. 881. [viii][8]
In like manner, neither is the tally board sufficient evidence of the real
results of the election. Moreover, in the instant case, the fact that the tally
board made its appearance only when Gata attached it to his appeal
makes it highly suspect and therefore unreliable. Such appearance has not
been convincingly explained even by Lyn M. Garil, chairman of the
BEI. Her affidavit that the Tally Board "dropped to the floor" as the armed
men left the polling place is hearsay. Section 217 of B.P. Blg. 881 (The
Omnibus Election Code) requires that the tally board or sheet shall,
together with other election documents, be placed inside the ballot box:
"SEC. 217. Delivery of the ballot boxes, keys and election supplies and
documents. - Upon the termination of the counting of votes, the board of
election inspectors shall place in the compartment for valid ballots, the
envelopes for used ballots hereinbefore referred to, the unused ballots, the
tally board or sheet, a copy of the election returns, and the minutes of its
proceedings, and then shall lock the ballot box with three padlocks and
such safety devices as the Commission may prescribe. Immediately after
the box is locked, the three keys of the pad locks in three separate
envelopes and shall be sealed and signed by all the members of the board
of election inspectors. The authorized representatives of the Commission
shall forthwith take delivery of said envelopes, signing a receipt therefore,
and deliver without delay one envelope to the provincial treasurer, another
to the provincial fiscal and the other to the provincial election supervisor.
The ballot box, all supplies of the board of election inspectors and all
pertinent papers and documents shall immediately be delivered by the
board of election inspectors and the watchers to the city or municipal
treasurer who shall keep his office open all night on the day of election if
necessary for this purpose, and shall provide necessary facilities for said
delivery at the expense of the city or municipality. The book of voters shall
be returned to the election registrar who shall keep it under his
custody. The treasurer and the election registrars, as the case may be,
shall on the day after the election require the members of the board of
election inspectors who failed to send the objects referred to herein to
deliver the same to him immediately and acknowledge receipt thereof in
detail. "(Sec. 161, 1978 EC).
Since the ballot box, and necessarily, all the election documents
contained therein, had been forcibly taken and had never been recovered,
then the tally board must have been likewise lost.
The fact that the Comelec decided to hold the special election shows
that it was not convinced of the authenticity and/or sufficiency ofGata's
"certificate of votes" and "tally board."
The special election was called pursuant to Section 6 of the Omnibus
Election Code, which requires notice and hearing before a special election
may be held. There was no objection from any candidate or political party
to the holding of the special election (as none had questioned it). In fact,
the main protagonists - the petitioner and private respondent Gata - even
actively participated in the said election. The latter's active participation
therein rendered his appeal from the ruling of the MBC moot and placed
him in estoppel from relying again on his "certificate of votes" and "tally
board." Therefore, the First Division of the COMELEC should have simply
dismissedGata's appeal on the ground that it had become moot and
academic, instead of dismissing it on the merits because of Gata's failure to
"furnish the Commission all pertinent documents necessary for [the
Division] to rule on the matter."
The COMELEC En Banc committed a more serious error, amounting to
grave abuse of discretion, when it reversed its First Division and gave due
course to the appeal. Worse, it annulled the special election had declared
that Gata's "certificate of votes" and "tally board" reflected the true and
genuine will of the electorate." The latter declaration effectively overturned
its earlier decision to hold the special election which decision was obviously
based on its finding that the said "certificate of votes" and "tally board,"
then already before it, were insufficient or inadequate to prove that there
was failure of election. Moreover, the decision to hold the special election
and long become final; such election having already been held and the
winner proclaimed, the COMELEC therefore had lost its jurisdiction to
revoke and set aside that decision. Additionally, it might be argued that in
upholding the Certificate of Votes and Tally Board as reflective of the will of
the electorate, and annulling the special elections, the Comelec also in
effect declared without adequate basis, said special elections as not
reflective of such popular mandate.
On the other hand, if the position of the COMELEC were to be
sustained, then we would in effect be ruling that it acted without or in
excess of jurisdiction or with grave abuse of discretion when it called and
conducted the special election, which was not at all raised as an issue in
this case. So too, we would permit the COMELEC to reverse and set aside
a final and already executed decision to hold the special election; and allow
it to decide a controversy - viz., the appeal from a ruling of the MBC - which
had in fact and in law been rendered moot and academic by the special
election.
While it is true that the respondent Commission has the power to annul
special elections or declare a failure of special elections where it is shown
that no voting had taken place or the election therein resulted in a failure to
elect; and the votes not cast would affect the results of the.election, [ix]
[9]
nonetheless, in the instant case, the June 17, 1995 electoral exercise
was not a failed election, as voting had taken place and the election did not
result in a failure to elect. In other words, the people spoke freely and
honestly in a contest voluntarily participated in by both parties
herein. Hence, the popular will as clearly expressed in the votes cast and
counted should prevail over dubious election documents of a previous
failed election in the same precinct. Since the validity and binding force of
this special election has not been put at issue and since for all it is worth,
such electoral exercise, both in the casting and canvassing of votes, was
conducted regularly and peacefully, then this Court's duty is to resolve the
issue "in a manner that would give effect to the will of the majority" as
expressed in such special election, for it is merely sound public policy to
cause elective offices to be filled by those who are the unquestioned choice
of the majority.[x][ (GERRY B. GARAY vs. COMMISSION ON ELECTIONS,
ET AL. G.R. No. 121331 August 28, 1996)

CASE NO. 4:FACTS: Petitioner SULTAN MOHAMAD L. MITMUG and


private respondent DATU GAMBAI DAGALANGIT were among the
candidates for the mayoralty position of Lumba-Bayabao during the 11 may
1992 election. There were sixty-seven (67) precincts in the municipality.
As was heretofore stated, voter turnout was rather low, particularly in
forty-nine (49) precincts where the average voter turnout was 22.26%, i.e.,
only 2,330 out of 9,830 registered voters therein cast their votes. Five (5) of
these precincts did not conduct actual voting at all.
Consequently, COMELEC ordered the holding of a special election
on 30 May 1992 in the five (5) precincts which failed to function during
election day. On 30 July 1992 another special election was held for a sixth
precinct.
In the interim, petitioner filed a petition seeking the annulment of the
special election conducted on 30 May 1992 alleging various irregularities
such as the alteration, tampering and substitution of ballots. But on 13 July
1992, COMELEC considered the petition moot since the votes in the
subject precincts were already counted.
Other petitions seeking the declaration of failure of election in some
or all precincts of Lumba-Bayabao were also filed with COMELEC by other
mayoralty candidates, to wit:
1. SPA No. 92-324: On 6 June 1992, private respondent Datu
Gamba Dagalangit filed an urgent petition praying for the holding of a
special election in Precinct No. 22-A alleging therein that when the ballot
box was opened, ballots were already torn to pieces. On 14 July 1992, the
petition was granted and a special election for Precinct No. 22-A was set
for 25 July 1992. 4
2. SPC No. 92-336: On 16 June 19992, Datu Elias
Abdusalam, another mayoralty candidate, filed a petition to declare failure
of election in twenty-nine (29) more precincts as a result of alleged
tampering of ballots 5 and clustering of precincts. 6 On 16 July 1992, the
petition was dismissed. COMELEC ruled that there must be a situation
where there is absolute inability to vote before a failure of election can be
declared. 7 Since voting was actually conducted in the contested precincts,
there was no basis for the petition.

3. SPA No 92-368: On 20 June 1992, private respondent filed


another petition, this time seeking to exclude from the counting the ballots
cast in six (6) precincts on the ground that the integrity of the ballot boxes
therein was violated. 8 Again, on 14 July 1992, COMELEC considered the
petition moot, as the issue raised therein was related to that of SPA No. 92-
311 which on 9 July 1992 was already set aside as moot. 9
4. SPA No. 92-347: On 1 July 1992, Datu Bagato Khalid
Lonta, a fourth mayoralty candidate, filed a petition which in the main
sought the declaration of failure of election in all sixty-seven (67) precincts
of Lumba-Bayabao, Lanao del Sur, on the ground of massive
disenfranchisement of voters. 10 On 9 July 1992, COMELEC dismissed the
petition, ruling that the allegations therein did not support a case of failure
of election.
On 8 July 1992, petitioner filed a motion to intervene in these four (4)
petitions. 12 But COMELEC treated the same as a motion for
reconsideration and promptly denied it considering that under the
COMELEC Rules of Procedure such motion was a prohibited pleading. 13
Thereafter, a new board of Election Inspectors was formed to conduct
the special election set for 25 July 1992. Petitioner impugned the creation
of this Board. Nevertheless, on 30 July 1992, the new Board convened and
began the canvassing of votes. Finally, on 31 July 1992, private respondent
was proclaimed the duly elected Mayor of Lumba-Bayabao, Lanao del Sur.
On 3 August 1992, petitioner instituted the instant proceedings
seeking the declaration of failure of election in forty-nine (49) precincts
where less than a quarter of the electorate were able to cast their votes. He
also prayed for the issuance of a temporary restraining order to enjoin
private respondent from assuming office.
On 10 August 1992, petitioner lodged an election protest with the
Regional trial Court of Lanao del Sur disputing the result not only of some
but all the precincts of Lumba-Bayabao, del Sur.
Respondents, on the other hand, assert that with the filing of an
election protest, petitioner is already deemed to have abandoned the
instant petition.
It may be noted that when petitioner filed his election protest with the
Regional Trial Court of Lanao del Sur, he informed the trial court of the
pendency of these proceedings. Paragraph 3 of his protest states "[T]hat
on August 3, 1992, your protestant filed a Petition for Certiorari with the
Supreme Court . . . docketed as G.R. No. 106270 assailing the validity of
the proclamation of the herein protestee. . . ." Evidently, petitioner did not
intend to abandon his recourse with this Court. On the contrary, he
intended to pursue it. Where only an election protest ex abundante ad
cautela is filed, the Court retains jurisdiction to hear the petition seeking to
annul an election.
QUESTION:1. Whether respondent COMELEC acted with grave
abuse of discretion amounting to lack of jurisdiction in denying motu proprio
and without due notice and hearing the petitions seeking to declare a
failure of election in some or all of the precincts in Lumba-Bayabao, Lanao
del Sur. After all, petitioner argues, he has meritorious grounds in support
thereto, viz., the massive disenfranchisement of voters due to alleged
terrorism and unlawful clustering of precincts, which COMELEC should
have at least heard before rendering its judgment.
2. Is a low turn out of voters in an election a ground
for a failure of election?

Answer NO. 4: The main issue is whether respondent COMELEC acted


with grave abuse of discretion amounting to lack of jurisdiction in denying
motu proprio and without due notice and hearing the petitions seeking to
declare a failure of election in some or all of the precincts in Lumba-
Bayabao, Lanao del Sur. After all, petitioner argues, he has meritorious
grounds in support thereto, viz., the massive disenfranchisement of voters
due to alleged terrorism and unlawful clustering of precincts, which
COMELEC should have at least heard before rendering its judgment.

Incidentally, a petition to annul an election is not a pre-proclamation


controversy. Consequently, the proclamation of a winning candidate
together with his subsequent assumption of office is not an impediment to
the prosecution of the case to its logical conclusion. 17
Under the COMELEC Rules of Procedure, within twenty-four (24) hours
from the filing of a verified petition to declare a failure to elect, notices to all
interested parties indicating therein the date of hearing should be served
through the fastest means available. 18 The hearing of the case will also be
summary in nature. 19

Based on the foregoing, the clear intent of the law is that a petition of this
nature must be acted upon with dispatch only after hearing thereon shall
have been conducted. Since COMELEC denied the other petitions 20
which sought to include forty-three (43) more precincts in a special election
without conducting any hearing, it would appear then that there indeed
might have been grave abuse of discretion in denying the petitions.
However, a closer examination of the COMELEC Rules of Procedure,
particularly Sec. 2, Rule 26, thereof which was lifted from Sec. 6, B.P. 881,
otherwise known as the Omnibus Election Code of the Philippines,
indicates otherwise. It reads

Sec. 2. Failure of election. If, on account of force majeure, violence,


terrorism, fraud or other analogous causes the election in any precinct has
not been held on the date fixed, or had been suspended before the hour
fixed by law for the closing of the voting, or after the voting and during the
preparation and the transmission of the election returns or in the custody of
canvass thereof, such election results in a failure to elect, and in any of
such cases the failure or suspension of election would affect the result of
the election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or
continuation of the election not held, suspended or which resulted in a
failure to elect on a date reasonably close to the date of the election not
held, suspended or which resulted in a failure to elect but not later than
thirty (30) days after the cessation of the cause of such postponement or
suspension of the election or failure to elect.

Before COMELEC can act on a verified petition seeking to declare a failure


of election, two (2) conditions must concur: first, no voting has taken place
in the precinct or precincts on the date fixed by law or, even if there was
voting, the election nevertheless results in failure to elect; and, second, the
votes not cast would affect the result of the election. 21
In the case before us, it is indubitable that the votes not cast will definitely
affect the outcome of the election. But, the first requisite is missing, i.e.,
that no actual voting took place, or even if there is, the results thereon will
be tantamount to a failure to elect. Since actual voting and election by the
registered voters in the questioned precincts have taken place, the results
thereof cannot be disregarded and excluded. 22 COMELEC therefore did
not commit any abuse of discretion, much less grave, in denying the
petitions outright. There was no basis for the petitions since the facts
alleged therein did not constitute sufficient grounds to warrant the relief
sought. For, the language of the law expressly requires the concurrence of
these conditions to justify the calling of a special election. 23

Indeed, the fact that a verified petition is filed does not automatically mean
that a hearing on the case will be held before COMELEC will act on it. The
verified petition must still show on its face that the conditions to declare a
failure to elect are present. In the absence thereof, the petition must be
denied outright.
Considering that there is no concurrence of the two (2) conditions in the
petitions seeking to declare failure of election in forty-three (43) more,
precincts, there is no more need to receive evidence on alleged election
irregularities.

Instead, the question of whether there have been terrorism and other
irregularities is better ventilated in an election contest. These irregularities
may not as a rule be invoked to declare a failure of election and to
disenfranchise the electorate through the misdeeds of a relative few. 24
Otherwise, elections will never be carried out with the resultant
disenfranchisement of innocent voters as losers will always cry fraud and
terrorism.
There can be failure of election in a political unit only if the will of the
majority has been defiled and cannot be ascertained. But, if it can be
determined, it must be accorded respect. After all, there is no provision in
our election laws which requires that a majority of registered voters must
cast their votes. All the law requires is that a winning candidate must be
elected by a plurality of valid votes, regardless of the actual number of
ballots cast. 25 Thus, even if less than 25% of the electorate in the
questioned precincts cast their votes, the same must still be respected.
There is prima facie showing that private respondent was elected through a
plurality of valid votes of a valid constituency. MOHAMAD L. MITMUG vs.
COMMISSION ON ELECTIONS, ET AL. (G.R. No. 106270-73 February
10, 1994)

CASE NO. 5: FACTS: RICARDO "BOY" CANICOSA and SEVERINO


LAJARA were candidates for mayor in Calamba, Laguna, during the 8 May
1995 elections. After obtaining a majority of some 24,000 votes Lajara was
proclaimed winner by the Municipal Board of Canvassers. On 15 May 1995
Canicosa filed with the Commission on Elections (COMELEC) a Petition to
Declare Failure of Election and to Declare Null and Void the Canvass and
Proclamation because of alleged widespread frauds and anomalies in
casting and counting of votes, preparation of election returns, violence,
threats, intimidation, vote buying, unregistered voters voting, and delay in
the delivery of election documents and paraphernalia from the precincts to
the Office of the Municipal Treasurer. Canicosa particularly averred that: (a)
the names of the registered voters did not appear in the list of voters in
their precincts; (b) more than one-half of the legitimate registered voters
were not able to vote with strangers voting in their stead; (c) he was
credited with less votes than he actually received; (d) control data of the
election returns was not filed up in some precincts; (e) ballot boxes brought
to the Office of the Municipal Treasurer were unsecured, i.e., without
padlocks nor self-locking metal seals; and, (f) there was delay in the
delivery of election returns. But the COMELEC en banc dismissed the
petition on the ground that the allegations therein did not justify a
declaration of failure of election.
QUESTIONS:
1.Canicosa bewails that the names of the registered voters in the various
precincts did not appear in their respective lists of voters. What is the
proper remedy on this aspect?
2.Canicosa also avers that more than one-half (1/2) of the legitimate
registered voters were not able to vote, instead, strangers voted in their
behalf. Is this a ground for failure of election?
3.Canicosa complains that the election returns were delivered late and the
ballot boxes brought to the Office of the Municipal Treasurer unsecured,
i.e., without padlocks nor self-locking metal seals. Is this also a ground for
failure of election?
4.Canicosa finally insists that it was error on the part of COMELEC sitting
en banc to rule on his petition. He maintains that his petition should have
first been heard by a division of COMELEC and later by the COMELEC en
banc upon motion for reconsideration, pursuant to Sec. 3, Art. IX-C, of the
Constitution. Is his contention correct?
5.In totality, was there a failure of election, in the case at bar?

ANSWER NO 5: Indeed, the grounds cited by Canicosa do not warrant a


declaration of failure of election. Section 6 of BP Blg. 881, otherwise known
as the Omnibus Election Code, reads:
Sec. 6. Failure of election. - If, on account of force majeure, violence,
terrorism, fraud, or other analogous causes the election in any polling place
has not been held on the date fixed, or had been suspended before the
hour fixed by law for the closing of the voting, or after the voting and during
the preparation and the transmission of the election returns or in the
custody or canvass thereof, such election results in a failure to elect, and in
any of such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a verified
petition by any interested party and after due notice and hearing, call for
the holding or continuation of the election not held, suspended or which
resulted in a failure to elect on a date reasonably close to the date of the
election not held, suspended or which resulted in a failure to elect but not
later than thirty days after the cessation of the cause of such postponement
or suspension of the election or failure to elect.
Clearly, there are only three (3) instances where a failure of election
may be declared, namely: (a) the election in any polling place has not
been held on the date fixed on account of force majeure, violence,
terrorism, fraud, or other analogous causes; (b) the election in any polling
place had been suspended before the hour fixed by law for the closing of
the voting on account of force majeure, violence, terrorism, fraud, or
other analogous causes; or (c) after the voting and during the preparation
and transmission of the election returns or in the custody or canvass
thereof, such election results in a failure to elect on account of force
majeure, violence, terrorism, fraud, or other analogous causes.
None of the grounds invoked by Canicosa falls under any of those
enumerated.
Canicosa bewails that the names of the registered voters in the various
precincts did not appear in their respective lists of voters. But this is not a
ground to declare a failure of election. The filing of a petition for declaration
of failure of election therefore is not the proper remedy. The day following
the last day for registration of voters, the poll clerk delivers a certified list of
voters to the election registrar, election supervisor and the
COMELEC, copies of which are open to public inspection. On the same
day, the poll clerk posts a copy of the list of registered voters in each polling
place. Each member of the board of election inspectors retains a copy of
the list which may be inspected by the public in their residence or in their
office during office hours.[xi][2]
Fifteen (15) days before the regular elections on 8 May 1995 the final
list of voters was posted in each precinct pursuant to Sec. 148 of RA No.
7166. Based on the lists thus posted Canicosa could have filed a petition
for inclusion of registered voters with the regular courts. The question of
inclusion or exclusion from the list of voters involves the right to vote [xii]
[3]
which is not within the power and authority of COMELEC to rule
upon. The determination of whether one has the right to vote is a
justiciable issue properly cognizable by our regular courts. Section 138,
Art. XII, of the Omnibus Election Code states:
Sec. 138. Jurisdiction in inclusion and exclusion cases. - The
municipal and metropolitan trial courts shall have original and exclusive
jurisdiction over all matters of inclusion and exclusion of voters from the list
in their respective municipalities or cities. Decisions of the municipal or
metropolitan trial courts may be appealed directly by the aggrieved party to
the proper regional trial court within five days from receipts of notice
thereof, otherwise said decision of the municipal or metropolitan trial court
shall decide the appeal within ten days from the time the appeal was
received and its decision shall be immediately final and
executory. No motion for reconsideration shall be entertained by the
courts (Sec. 37, PD 1896, as amended).
On the other hand, Canicosa could have also filed with the
COMELEC a verified complaint seeking the annulment of the book of
voters pursuant to Sec. 10, of RA No. 7166:
Sec. 10. Annulment of the List of Voters. - Any book of voters the
preparation of which has been affected with fraud, bribery, forgery,
impersonation, intimidation, force or any other similar irregularity or which is
statistically improbable may be annulled after due notice and hearing by the
Commission motu propio or after the filing of a verified
complaint: Provided, that no order, ruling or decision annulling a book of
voters shall be executed within sixty (60) days before an election.
If indeed the situation herein described was common in almost all of the
557 precincts as alleged by Canicosa, [xiii][4] then it was more expedient on
his part to avail of the remedies provided by law in order to maintain the
integrity of the election. Since Canicosa failed to resort to any of the above
options, the permanent list of voters as finally corrected before the election
remains conclusive on the question as to who had the right to vote in that
election, although not in subsequent elections. [xiv][5]
Canicosa also avers that more than one-half (1/2) of the legitimate
registered voters were not able to vote, instead, strangers voted in their
behalf. Again, this is not a ground which warrants a declaration of failure of
election. Canicosa was allowed to appoint a watcher in every
precinct. The watcher is empowered by law to challenge any illegal
voter. Thus, Secs. 199 and 202, Art. XVII, of the Omnibus Election
Code, provide:
Sec. 199. Challenge of illegal voters. - (a) Any voter, or watcher may
challenge any person offering to vote for not being registered, for using the
name of another or suffering from existing disqualification. In such case,
the board of election inspectors shall satisfy itself as to whether or not the
ground for the challenge is true by requiring proof of registration or identity
of the voter x x x x
Sec. 202. Record of challenges and oaths. - The poll clerk shall keep a
prescribed record of challenges and oaths taken in connection therewith
and the resolution of the board of election inspectors in each case and,
upon the termination of the voting, shall certify that it contains all the
challenges made x x x x
The claim of Canicosa that he was credited with less votes than he
actually received and that the control data of the election returns was not
filled up should have been raised in the first instance before the board of
election inspectors or board of canvassers. Section 179, Art. XV, of
the Omnibus Election Code clearly provides for the rights and duties of
watchers -
Sec. 179. Rights and duties of watchers. - x x x x The watchers x x x
shall have the right to witness and inform themselves of the proceedings of
the board of election inspectors x x x to file a protest against any irregularity
or violation of law which they believe may have been committed by the
board of election inspectors or by any of its members or by any persons, to
obtain from the board of election inspectors a certificate as to the filing of
such protest and/or of the resolution thereon x x x and to be furnished with
a certificate of the number of votes in words and figures cast for each
candidate, duly signed and thumbmarked by the chairman and all the
members of the board of election inspectors x x x x
To safeguard and maintain the sanctity of election returns, Sec. 212,
Art. XVIII, of the Omnibus Election Code states -
Sec. 212. Election returns. - x x x x Immediately upon the
accomplishment of the election returns, each copy thereof shall be sealed
in the presence of the watchers and the public, and placed in the proper
envelope, which shall likewise be sealed and distributed as herein
provided.
Furthermore, it is provided in Sec. 215 of the Omnibus Election
Code that -
Sec. 215. Board of election inspectors to issue a certificate of the
number of votes polled by the candidates for an office to the watchers.
- After the announcement of the results of the election and before leaving
the polling place, it shall be the duty of the board of election inspectors to
issue a certificate of the number of votes received by a candidate upon
request of the watchers. All members of the board of election inspectors
shall sign the certificate.
Supplementing the preceding provisions, Secs. 16 and 17 of RANo.
6646 also require -
Sec. 16. Certification of votes. - After the counting of the votes cast in
the precinct and announcement of the results of the election, and before
leaving the polling place, the board of election inspectors shall issue a
certificate of votes upon request of the duly accredited watchers x x x x
Sec. 17. Certificate of Votes as Evidence. - The provisions of Secs.
235 and 236 of Batas Pambansa Blg. 881 notwithstanding, the certificate of
votes shall be admissible in evidence to prove tampering, alteration,
falsification or anomaly committed in the election returns concerned x x x x
From the foregoing provisions, it is clear that in case of inconsistency as
to the number of votes written in the election returns and the certificate of
votes, a petition for correction of election returns must immediately be filed
with COMELEC by all or a majority of the members of the board of election
inspectors or any candidate affected by the error or mistake. In order to
make out a case for correction of election returns, there must be an error
and at least a majority of the members of the board of election inspectors
agrees that such error existed. Canicosa never mentioned that he
petitioned for the correction of the election returns before the COMELEC
Canicosa complains that the election returns were delivered late and
the ballot boxes brought to the Office of the Municipal Treasurer unsecured,
i.e., without padlocks nor self-locking metal seals. These bare allegations
cannot impel us to declare failure of election. Assuming that the election
returns were delivered late, we still cannot see why we should declare a
failure to elect. The late deliveries did not convert the election held in
Calamba into a mockery or farce to make us conclude that there was
indeed a failure of election.
In fine, the grounds cited by Canicosa in his petition do not fall under
any of the instances enumerated in Sec. 6 of the Omnibus Election
Code. In Mitmug v. Commission on Elections [xv][6] we ruled that before
COMELEC can act on a verified petition seeking to declare a failure of
election, at least two (2) conditions must concur: (a) novoting has taken
place in the precincts on the date fixed by law, or even if there was voting,
the election nevertheless resulted in failure to elect; and, (b) the votes that
were not cast would affect the result of the election. From the face of the
instant petition, it is readily apparent than an election took place and that it
did not result in a failure to elect.[xvi][7]
Canicosa finally insists that it was error on the part of COMELEC
sitting en banc to rule on his petition. He maintains that his petition
should have first been heard by a division of COMELEC and later by the
COMELEC en banc upon motion for reconsideration, pursuant to Sec. 3,
Art. IX-C, of the Constitution.[xvii][8]
But this provision applies only when the COMELEC acts in the exercise
of its adjudicatory or quasi-judicial functions and not when it merely
exercises purely administrative functions. To reiterate, the grounds cited
by Canicosa in his petition are that: (a) the names of the registered voters
did not appear in the list of voters in their respective precincts; (b) more
than one-half of the legitimate registered voters were not able to vote with
strangers voting in their stead; (c) he was credited with less votes than he
actually received; (d) the control data of the election returns was not filled
up in some precincts; (e) ballot boxes brought to the Office of the Municipal
Treasurer were unsecured, i. e., without padlocks nor self-locking metal
seals; and, (f) there was delay in the delivery of election returns.
Clearly, all these matters require the exercise by the COMELEC of its
administrative functions. Section 2, Art. IX-C, of the 1987 Constitution
grants extensive administrative powers to the COMELEC with regard to
the enforcement and administration of all laws and regulations relative to
the conduct of elections. Likewise, Sec. 52 of BP Blg. 881, otherwise
known as the Omnibus Election Code, states:
Sec. 52. Powers and functions of the Commission on Elections. - In
addition to the powers and functions conferred upon it by the Constitution,
the Commission shall have exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections for the purpose
of ensuring free, orderly and honest elections x x x x
Quite obviously, it is only in the exercise of its adjudicatory or quasi-
judicial powers that the COMELEC is mandated to hear and decide cases
first by Division and then, upon motion for reconsideration, by the
COMELEC en banc. This is when it is jurisdictional. In the instant case,
as aforestated, the issues presented demand only the exercise by the
COMELEC of its administrative functions.
The COMELEC exercises direct and immediate supervision and control
over national and local officials or employees, including members of any
national or local law enforcement agency and instrumentality of the
government required by law to perform duties relative to the conduct of
elections. Its power of direct supervision and control includes the power to
review, modify or set aside any act of such national and local officials. [xviii]
[9]
It exercises immediate supervision and control over the members of the
boards of election inspectors and canvassers. Its statutory power of
supervision and control includes the power to revise, reverse or set aside
the action of the boards, as well as to do what
the boards should have done, even if questions relative thereto have
not been elevated to it by an aggrieved party, for such power includes
the authority to initiatemotu proprio or by itself such steps or actions as
may be required pursuant to law.[xix][10]
Specifically, Canicosa alleged that he was credited with less votes than
he actually received. But he did not raise any objection before the
Municipal Board of Canvassers; instead, he went directly to the
COMELEC. He now claims, after the COMELEC en banc dismissed his
petition, that it was error on the part of COMELEC to rule on his petition
while sitting en banc.
We have already disposed of this issue in Castromayor v. Commission
on Elections [xx][11] thus should be pinpointed out, in this connection, that
what is involved here is a simple problem of arithmetic. The Statement of
Votes is merely a tabulation per precinct of the votes obtained by the
candidates as reflected in the election returns. In making the correction in
computation, the MBC will be acting in an administrative capacity, under
the control and supervision of the COMELEC. Hence, any question
pertaining to the proceedings of the MBC may be raised directly to the
COMELEC en banc in the exercise of its constitutional function to decide
questions affecting elections.
Moreover, it is expressly provided in Rule 27, Sec. 7, of the Comelec
Rules of Procedure that any party dissatisfied with the ruling of the board of
canvassers shall have a right to appeal to the COMELEC en banc:
Sec. 7. Correction of Errors in Tabulation or Tallying of Results by the
Board of Canvassers. - (a) Where it is clearly shown before proclamation
that manifest errors were committed in the tabulation or tallying or election
returns, or certificates of canvass, during the canvassing as where (1) a
copy of the election returns of one precinct or two or more copies of a
certificate of canvass were tabulated more than once, (2) two copies of the
election returns or certificate of canvass were tabulated separately, (3)
there was a mistake in the adding or copying of the
figures into the certificate of canvass or into the statement of votes by
precinct, or (4) so-called election returns from non-existent precincts were
included in the canvass, the board may motu proprio, or upon verified
petition by any candidate, political party, organization
or coalition of political parties, after due notice and hearing, correct the
errors committed x x x x (h) The appeal shall be heard and decided by the
Commission en banc.
In Tatlonghari v. Commission on Elections [xxi][12] it was made to appear
in the Certificate of Canvass of Votes and Proclamation of the Winning
Candidates that respondent therein received 4,951 votes or more than
what he actually obtained. In resolving the case we ruled that the
correction of the manifest mistake in mathematical addition calls for a mere
clerical task of the board of canvassers. The remedy invoked was purely
administrative. In Feliciano v. Lugay [xxii][13] we categorized the issue
concerning registration of voters, which Canicosa cited as a ground in his
petition for declaration of failure of election, as an administrative
question. Likewise, questions as to whether elections have been held or
whether certain returns were falsified or manufactured and therefore should
be excluded from the canvass do not involve the right to vote. Such
questions are properly within theadministrative jurisdiction of
COMELEC, [xxiii][14] hence, may be acted upon directly by the COMELEC en
banc without having to pass through any of its divisions.

CASE No. 6: Facts: "It appears that Cong. Pedro P. Romualdo and Gov.
Antonio R. Gallardo were both candidates in the May 11, 1992 elections for
the positions of congressmen and governor, respectively, of Camiguin.
They belonged to opposing political factions and were in a bitter electoral
battle.
"On April 10, 1992 or about a month before the elections, Cong.
Romualdo filed a petition docketed as Special Civil Action No. 465 before
the Regional Trial Court of Camiguin (Br. 28) presided over by respondent
Judge Tabamo against Gov. Gallardo, the Provincial Treasurer, the
Provincial Auditor, the Provincial Engineer, and the Provincial Budget
Officer as respondents. In this petition Cong. Romualdo sought to prohibit
and restrain the respondents from undertaking and/or pursuing certain
public works projects and from disbursing, releasing, and/or spending
public funds for said projects, allegedly because, among other reasons,
said projects were undertaken in violation of the 45-day ban on public
works imposed by the Omnibus Election Code (B.P. Blg. 881); that the
public works projects were commenced without the approved detailed
engineering plans and specification and corresponding program of works;
that the expenditures of the 20% development fund for projects other than
for maintenance violated the Local Government Code; that locally funded
projects had been pursued without the provincial budget having been first
approved, and reviewed by the Department of Budget and Management;
and that the illegal prosecution of the said public works projects requiring
massive outlay or public funds during the election period was done
maliciously and intentionally to corrupt voters and induce them to support
the candidacy of Gov. Gallardo and his ticket in the May 11, 1992 elections.
"In the afternoon of the same day that the petition was filed, Judge
Tabamo issued a temporary restraining order as prayed for by the petitioner
Cong. Romualdo, as follows:
'It appearing from the verified petition in this case that great and
irreparable damage and/or injury shall be caused to the petitioner as
candidate and taxpayer, such damage or injury taking the form and shape
occasioned by the alleged wanton, excessive, abusive and flagrant waste
of public money, before the matter can be heard on notice, the respondents
are hereby Temporarily Restrained from pursuing or prosecuting the project
itemized in Annexes 'A' and 'A-1' of the petition; from releasing, disbursing
and/or spending any public funds for such projects; from issuing, using or
availing of treasury warrants or any device undertaking future delivery of
money, goods, or other things of value chargeable against public funds in
connection with the said projects.'
"In the same Order of April 10, 1993 the judge gave the respondents
ten (10) days from receipt of a copy of the petition to answer the same, and
set the prayer for the issuance of a preliminary injunction for hearing on
April 24, 1992 at 8:30 A.M.
"Gov. Gallardo testified that when he received a copy of the
restraining order and reviewed the petition filed, being a lawyer, he at once
saw that the same was not within the jurisdiction of the Regional Trial
Court. He said that the elections were nearing and all their projects were
suspended, the laborers could not get their salaries, and the judge had set
the hearing of the injunction on April 24, 1992 or very close to the elections
of May 11, 1992. Believing that he could not get justice from the respondent
court, he decided to go to the Supreme Court where he filed a petition for
certiorari (docketed as G.R. No. L-104848) questioning the issuance of the
temporary restraining order and the jurisdiction of the court over Special
Civil Action No. 465.
QUESTION: 1. From your point of view, was the Judge correct in
taking cognizance of the case and was his act of issuing the Temporary
Restraining Order correct under the circumstances? Or would you agree
with Gov. Gallardo that the RTC has no jurisdiction over the case? Reason
out your answer.

Answer NO 6:The Judge was wrong. Needless to say, the acts


sought to be restrained in Special Civil Action No. 465 before the court a
quo are matters falling within the exclusive jurisdiction of the Commission.
As a matter of fact, the specific allegations in the petition therein of
violations of paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus
Election Code provide a stronger basis and reason for the application of the
Zaldivar doctrine. At most, the facts in the latter case do not illustrate as
clearly the announced doctrine as the facts in this case do. In Zaldivar, no
specific provision of the Revised Election Code then in force was alleged to
have been violated. What was sought to be enjoined was the alleged
wielding by Zaldivar, then a municipal mayor, of the power, by virtue of his
office, to appoint special policemen or agents to terrorize voters into
supporting the congressional candidate of his choice. In holding that the
then Court of First Instance did not have jurisdiction over the case, this
Court considered the constitutional power of the Commission on Elections
to have exclusive charge of the enforcement and administration of all laws
relative to the conduct of elections and to exercise all other functions which
may be conferred by law. We likewise relied on the provisions of the
Revised Election Code vesting upon the COMELEC (a) direct and
immediate supervision over municipal, city and provincial officials
designated by law to perform duties relative to the conduct of elections and
(b) authority to suspend them from the performance of such duties for
failure to comply with its instructions, orders, decisions or rulings and
recommend to the President their removal if found guilty of non-feasance,
malfeasance or misfeasance in connection with the performance of their
duties relative to the conduct of elections. 20

Under the present law, however, except in case of urgent need, the
appointment or hiring of new employees or the creation or filling up of new
positions in any government office, agency or instrumentality, whether
national or local, including government-owned or controlled corporations, is
banned during the period of forty-five (45) days before a regular election
and thirty (30) days before a special election if made without the prior
authority of the Commission on Elections. A violation thereof constitutes an
election offense. 21 Then too, no less than the present Constitution and
not just the Election Law as was the case at the time of Zaldivar expressly
provides that the Commission may "[R]ecommend to the President the
removal of any officer or employee it has deputized, or the imposition of
any other disciplinary action, for violation or disregard of, or disobedience
to its directive, order, or decision." 22

Moreover, the present Constitution also invests the Commission


with the power to "investigate and, where appropriate, prosecute cases of
violations of election laws, including acts or omissions constituting election
frauds, offenses, and malpractices." 23
It may thus be said without fear of contradiction that this vast array
of powers and functions now enjoyed by the Commission under the present
Constitution provides a stronger foundation for, and adds vigor and vitality
to, the Zaldivar doctrine.

The rationale of the said doctrine needs to be stressed here so that


henceforth, no judge will lose his bearings when confronted with the same
issue. Otherwise, he should be held to account for either the sheer
ignorance of the law or the callous disregard of pronouncements by this
Court to accommodate partisan political feelings. We declared in the said
case:

The question may be asked: Why should not the judiciary be aco-
participant in this particular instance of enforcing the Election Code as its
authority was invoked? The obvious answer is the literal language of the
Constitution which empowers the Commission on Elections to "have
exclusive charge of the enforcement and administration of all laws relative
to the conduct of the elections." Moreover, as was so aptly observed by the
then Justice Frankfurter, although the situation confronting the United
States Supreme Court was of a different character: "Nothing is clearer than
that this controversy concerns matters that brings courts into immediate
and active relations with party contests. From the determination of such
issues this Court has traditionally held aloof. It is hostile to a democratic
system to involve the judiciary in the politics of the people. And it is not less
pernicious if such judicial intervention in an essentially political contest be
dressed up in the abstract phrases of the law." 24 Then, too, reference by
analogy may be made to the principle that sustains Albano v. Arranz. For
even without the express constitutional prescription that only this Court may
review the decisions, orders and rulings of the Commission on Elections, it
is easy to understand why no inference whatsoever with the performance
of the Commission on Elections of its functions should be allowed unless
emanating from this Court. The observation of Acting Chief Justice J.B.L.
Reyes in Albano v. Arranz, 25 while not precisely in point, indicates the
proper approach. Thus: "It is easy to realize the chaos that would ensue if
the Court of First Instance of each and every province were to arrogate
unto itself the power to disregard, suspend, or contradict any order of the
Commission on Elections; that constitutional body would be speedily
reduced to impotence."

This conclusion finds' support from a consideration of weight and


influence. What happened in this case could be repeated elsewhere. It is
not improbable that courts of first instance would be resorted to by leaders
of candidates or political factions entertaining the belief whether rightly or
wrongly that local officials would employ all the power at their command to
assure the victory of their candidates. Even if greater care and
circumspection, than did exist in this case, would be employed by judges
thus appealed to, it is not unlikely that the shadow of suspicion as to
alleged partisanship would fall on their actuations, whichever way the
matter before them is decided. It is imperative that the faith in the
impartiality of the judiciary be preserved unimpaired. Whenever, therefore,
the fear may be plausibly entertained that an assumption of jurisdiction
would lead to a lessening of the undiminished trust that should be reposed
in the courts and the absence of authority discernible the from the wording
of applicable statutory provisions and the trend of judicial decisions, even if
no constitutional mandate as that present in this case could be relied upon,
there should be no hesitancy in declining to act. 26

The foregoing disquisitions should have rendered unnecessary the


resolution of the remaining collateral issues raised in this petition. In view,
however, of their importance, they will be dealt with in a general way.
It is not true that, as contended by the petitioners, the jurisdiction of
the Regional Trial Court under the election laws is limited to criminal
actions for violations of the Omnibus Election Code. The Constitution itself
grants to it exclusive original jurisdiction over contests involving elective
municipal officials. 27 Neither can We agree with the petitioners' assertion
that the Special Civil Action filed in the court below involves the prosecution
of election offenses; the said action seeks some reliefs incident to or in
connection with alleged election offenses; specifically, what is sought is the
prevention of the further commission of these offenses which, by their
alleged nature, are continuing.

There is as well no merit in the petitioners' claim that the private


respondent has no legal standing to initiate the filing of a complaint for a
violation of the Omnibus Election Code. There is nothing in the law to
prevent any citizen from exposing the commission of an election offense
and from filing a complaint in connection therewith. On the contrary, under
the COMELEC Rules of Procedure, initiation of complaints for election
offenses may be done motu propio by the Commission on Elections or
upon written complaint by any citizen, candidate or registered political party
or organization under the party-list system or any of the accredited citizens
arms of the Commission. 28 However, such written complaints should be
filed with the "Law Department of the Commission; or with the offices of the
Election Registrars, Provincial Election Supervisors or Regional Election
Directors, or the State Prosecutor, Provincial Fiscal or City Fiscal." 29 As
earlier intimated, the private respondent was not seriously concerned with
the criminal aspect of his alleged grievances. He merely sought a stoppage
of the public works projects because of their alleged adverse effect on his
candidacy. Indeed, while he may have had reason to fear and may have
even done the right thing, he committed a serious procedural misstep and
invoked the wrong authority.

We have, therefore, no alternative but to grant this petition on the


basis Our resolution of the principal issue. Nevertheless, it must be strongly
emphasized that in so holding that the trial court has no jurisdiction over the
subject matter of Special Civil Action No. 465, We are not to be understood
as approving of the acts complained of by the private respondent. If his
charges for the violation of paragraphs (a), (b), (v) and (w), Section 261 of
the Omnibus Election Code are true, then no one should be spared from
the full force of the law. No government official should flout laws designed
to ensure the holding of free, orderly, honest, peaceful and credible
elections or make a mockery of our electoral processes. The bitter lessons
of the past have shown that only elections of that nature or character can
guarantee a peaceful and orderly change. It is then his duty to respect,
preserve and enhance an institution which is vital in any democratic
society. ANTONIO GALLARDO, ET AL. vs. SINFOROSO V.
TABAMO, JR., ET AL. G.R. No. 104848 January 29, 1993

CASE NO. 7. Facts:This petition for certiorari under Rule 65 of the 1997
Rules of Civil Procedure seeks to annul and set aside, for having been
rendered with grave abuse of discretion amounting to lack or excess of
jurisdiction, the 17 May 1996 Resolution of the COMELEC 2nd Division in
Sunga v. Trinidad, SPA No. 95-213 1 dismissing the petition for
disqualification against private respondent Ferdinand B. Trinidad pursuant
to COMELEC Resolution No. 2050 promulgated 3 November 1988, as
amended by COMELEC Resolution No. 2050-A promulgated 8 August
1990, and 30 July 1996 Resolution of the COMELEC En Banc affirming the
17 May 1996 Resolution of the COMELEC 2nd Division.
Petitioner Manuel C. Sunga was one of the candidates for the position of
Mayor in the Municipality of Iguig, Province of Cagayan, in the 8 May 1995
elections. Private respondent Ferdinand B. Trinidad, then incumbent mayor,
was a candidate for re-election in the same municipality.
On 22 April 1995 Sunga filed with the COMELEC a letter-complaint 2
for disqualification against Trinidad, accusing him of using three (3) local
government vehicles in his campaign, in violation of Sec. 261, par. (o), Art.
XXII, of BP Blg. 881 (Omnibus Election Code, as amended). On 7 May
1995, Sunga filed another letter-complaint 3 with the COMELEC charging
Trinidad this time with violation of Sec. 261, par. (e) (referring to threats,
intimidation, terrorism or other forms of coercion) of the Omnibus Election
Code, in addition to the earlier violation imputed to him in the first letter-
complaint. This was followed by an Amended Petition 4 for disqualification
consolidating the charges in the two (2) letters-complaint, including vote
buying, and providing more specific details of the violations committed by
Trinidad. The case was docketed as SPA No. 95-213.
In a Minute Resolution dated 25 May 1995, 5 the COMELEC 2nd
Division referred the complaint to its Law Department for investigation.
Hearings were held wherein Sunga adduced evidence to prove his
accusations. Trinidad, on the other hand, opted not to submit any evidence
at all.
Meanwhile, the election results showed that Trinidad garnered the
highest number of votes, while Sunga trailed second.
On 10 May 1995 Sunga moved for the suspension of the
proclamation of Trinidad. However, notwithstanding the motion, Trinidad
was proclaimed the elected mayor, prompting Sunga to file another motion
to suspend the effects of the proclamation. Both motions were not acted
upon by the COMELEC 2nd Division.
On 28 June 1995 the COMELEC Law Department submitted its
Report to the COMELEC En Banc recommending that Trinidad be charged
in court for violation of the following penal provisions of the Omnibus
Election Code: (a) Sec. 261, par. (a), on vote buying; (b) Sec. 261, par. (e),
on threats, intimidation, terrorism or other forms of coercion; and, (c) Sec.
261, par. (o), on use of any equipment, vehicle owned by the government
or any of its political subdivisions. The Law Department likewise
recommended to recall and revoke the proclamation of Ferdinand B.
Trinidad as the duly elected Mayor of Iguig, Cagayan; proclaim Manuel C.
Sunga as the duly elected Mayor; and, direct Sunga to take his oath and
assume the duties and functions of the office.
The COMELEC En Banc approved the findings of the Law
Department and directed the filing of the corresponding informations in the
Regional Trial Court against Trinidad. Accordingly, four (4) informations 7
for various elections offenses were filed in the Regional Trial Court of
Tuguegarao, Cagayan. The disqualification case, on the other hand, was
referred to the COMELEC 2nd Division for hearing.
On 2 May 1996 Sunga filed a Second Urgent Motion to Suspend the
Effects and Annul the Proclamation with Urgent Motion for Early Resolution
of the Petition. But in its 17 May 1996 Resolution, the COMELEC 2nd
Division dismissed the petition for disqualification, holding in its Resolution
No. 2050 that
1. Any complaint for disqualification of a duly registered
candidate based upon any of the grounds specifically enumerated under
Sec. 68 of the Omnibus Election Code, filed directly with the Commission
before an election in which respondent is a candidate, shall be inquired into
by the Commission for the purpose of determining whether the acts
complained of have in fact been committed . . . .
In case such complaint was not resolved before the election, the
Commission may motu propio, or on motion of any of the parties, refer the
complaint to the Law Department of the Commission as the instrument of
the latter in the exercise of its exclusive power to conduct a preliminary
investigation of all cases involving criminal infractions of the electionlaws . .
..
2. Any complaint for disqualification based on Sec. 68 of the
Omnibus Election Code in relation to Sec. 6 of Republic Act No. 6646 filed
after the election against a candidate who has already been proclaimed as
a winner shall be dismissed as a disqualification case. However, the
complaint shall be referred for preliminary investigation to the Law
Department of this Commission.
Where a similar complaint is filed after election but before
proclamation of the respondent candidate, the complaint shall,
nevertheless, be dismissed as a disqualification case. However, the
complaint shall be referred for preliminary investigation to the Law
Department. If, before proclamation, the Law Department makes a prima
facie finding of guilt and the corresponding information has been filed with
the appropriate trial court, the complainant may file a petition for
suspension of the proclamation of the respondent with the court before
which the criminal case is pending and said court may order the
suspension of the proclamation if the evidence of guilt is strong.
As interpreted in the case of Silvestre v. Duavit, SPA 94-003,
Resolution No. 2050 provides for the outright dismissal of the
disqualification case in three cases: (1) The disqualification case was filed
before the election but remains unresolved until after the election; (2) The
disqualification case was filed after the election and before the
proclamation of winners; and (3) The disqualification case was filed after
election and after proclamation.
If the instant case is deemed to have been filed upon receipt by the
COMELEC of the letter-complaint on April 26 1995, it nevertheless
remained pending until after the election. If it is deemed to have been filed
upon filing of the amended petition on 11 May 1995, it was clearly filed after
the election. In either case, Resolution No. 2050 mandates the dismissal of
the disqualification case.
His motion for reconsideration having been denied by the COMELEC
En Banc, Sunga filed the instant petition contending that the COMELEC
committed grave abuse of discretion in dismissing the petition for
disqualification in that: first, Sec. 6 of RA No. 6646 requires the COMELEC
to resolve the disqualification case even after the election and
proclamation, and the proclamation and assumption of office by Trinidad
did not deprive the COMELEC of its jurisdiction; second COMELEC
Resolution No. 2050 is null and void as it contravenes Sec. 6 of R.A. No.
6646; third, the fact that COMELEC authorized the filing of four (4)
informations against private respondent for violation of the penal provisions
of the Omnibus Election Code shows more than sufficient and substantial
evidence to disqualify Trinidad, and he should have been so disqualified;
and fourth, since Trinidad was a disqualified candidate, it is as if petitioner
was the only candidate entitled to be proclaimed as the duly elected mayor.
Private respondent, on the other hand, postulates inter alia that
Sunga's letters-complaint of 22 April 1995 and 7 May 1995 were not
petitions for disqualification because no filing fee was paid by Sunga; the
letters-complaint were never docketed by the COMELEC; and, no
summons was ever issued by the COMELEC and private respondent was
not required to answer the letters-complaint. It was only on 13 May 1995
when petitioner filed the so-called Amended Petition, docketed for the first
time as SPA No. 95-213. Thus, the COMELEC correctly dismissed the
disqualification case for having been filed only after the 8 May 1995
elections and the proclamation of private respondent on 10 May 1995,
pursuant to COMELEC Resolution No. 2050.
COMELEC filed its Comment on 21 April 1997 relying heavily on
Resolution No. 2050 and the Silvestre v. Duavit ruling in support of the
dismissal of the disqualification case. The COMELEC insisted that the
outright dismissal of a disqualification case was warranted under any of the
following circumstances: (a) the disqualification case was filed before the
election but was still pending (unresolved) after the election; (b) the
disqualification case was filed after the election but before the proclamation
of the winner; and, (c) the disqualification case was filed after the election
and after the proclamation of the winner.
QUESTIONS: 1.The issue in this case is whether the COMELEC
committed grave abuse of discretion when it dismissed the disqualification
case against private respondent Trinidad.On the basis of the facts, didthe
COMELEC commit grave abuse of discretion?
2.Trinidad further avers that the COMELEC was
correct in summarily dismissing the disqualification case because the
docket fees were not duly paid. Is the contention correct?
3.Sunga claims that, in the event of Trinidads
disqualification, he should be proclaimed as mayor? Is he correct?
4.In this case who should be the rightful mayor?
Explain.

Answer NO 7: The petition is partly meritorious.


We find private respondents arguments on the propriety of the letters-
complaint puerile. COMELEC itself impliedly recognized in its Resolution
that the petition was filed before the 8 May 1995 election in the form of
letters-complaint, thus
This case originally came to the attention of this Commission on 26 April
1995 in a form of letter from petitioner accusing respondent of utilizing
government properties in his campaign and praying for the latters
immediate disqualification. Another letter dated 7 May 1995 and
addressed to the COMELEC Regional Director of Region II reiterated
petitioners prayer while alleging that respondent and his men committed
acts of terrorism and violated the gun ban. Finally, on 11 May 1995, an
Amended Petition was filed with the Clerk of Court of the Commission
containing substantially the same allegations as the previous letters but
supported by affidavits and other documentary evidence.
That the Amended Petition was filed only on 11 May 1995, or after the
elections, is of no consequence. It was merely a reiteration of the charges
filed by petitioner against private respondent on 26 April 1995 and 7 May
1995 or before the elections. Consequently, the Amended Petition
retroacted to such earlier dates. An amendment which merely
supplements and amplifies facts originally alleged in the complaint relates
back to the date of the commencement of the action and is not barred by
the statute of limitations which expired after the service of the original
complaint.[xxiv][9]
The fact that no docket fee was paid therefor was not a fatal procedural
lapse on the part of petitioner. Sec. 18, Rule 42, of the COMELEC Rules of
Procedure provides, If the fees above described are not paid, the
Commission may refuse to take action thereon until they are paid and may
dismiss the action or proceeding. The use of the word may indicates
that it is permissive only and operates to confer a discretion on the
COMELEC whether to entertain the petition or not in case of non-payment
of legal fees. That the COMELEC acted on and did not dismiss the
petition outright shows that the non-payment of fees was not considered by
it as a legal obstacle to entertaining the same. Be that as it may, the
procedural defects have been cured by the subsequent payment of docket
fees, and private respondent was served with summons, albeit belatedly,
and he submitted his answer to the complaint. Hence, private respondent
has no cause to complain that no docket fee was paid, no summons served
upon him, or that he was not required to answer.
Neither do we agree with the conclusions of the COMELEC. We
discern nothing in COMELEC Resolution No. 2050 declaring, ordering or
directing the dismissal of a disqualification case filed before the election but
which remained unresolved after the election. What the Resolution
mandates in such a case is for the Commission to refer the complaint to its
Law Department for investigation to determine whether the acts
complained of have in fact been committed by the candidate sought to be
disqualified. The findings of the Law Department then become the basis
for disqualifying the erring candidate. This is totally different from the other
two situations contemplated by Resolution No. 2050, i.e., a disqualification
case filed after the election but before the proclamation of winners and that
filed after the election and the proclamation of winners, wherein it was
specifically directed by the same Resolution to be dismissed as a
disqualification case.
Moreover, Resolution No. 2050 as interpreted in Silvestre v.
Duavit infringes on Sec. 6 of RA No. 6646,[xxv][10] which provides:
SEC. 6. Effects of Disqualification Case. - Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing of the action,
inquiry or protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the proclamation
of such candidate whenever the evidence of his guilt is
strong (underscoring supplied).
Clearly, the legislative intent is that the COMELEC should continue the
trial and hearing of the disqualification case to its conclusion, i.e., until
judgment is rendered thereon. The word shall signifies that this
requirement of the law is mandatory, operating to impose a positive duty
which must be enforced.[xxvi][11] The implication is that the COMELEC is left
with no discretion but to proceed with the disqualification case even after
the election. Thus, in providing for the outright dismissal of the
disqualification case which remains unresolved after the election, Silvestre
v. Duavit in effect disallows what RA No. 6646 imperatively requires. This
amounts to a quasi-judicial legislation by the COMELEC which cannot be
countenanced and is invalid for having been issued beyond the scope of its
authority. Interpretative rulings of quasi-judicial bodies or administrative
agencies must always be in perfect harmony with statutes and should be
for the sole purpose of carrying their general provisions into effect. By such
interpretative or administrative rulings, of course, the scope of the law itself
cannot be limited. Indeed, a quasi-judicial body or an administrative
agency for that matter cannot amend an act of Congress. Hence, in case
of a discrepancy between the basic law and an interpretative or
administrative ruling, the basic law prevails.
Besides, the deleterious effect of the Silvestre ruling is not difficult to
foresee. A candidate guilty of election offenses would be undeservedly
rewarded, instead of punished, by the dismissal of the disqualification case
against him simply because the investigating body was unable, for any
reason caused upon it, to determine before the election if the offenses were
indeed committed by the candidate sought to be disqualified. All that the
erring aspirant would need to do is to employ delaying tactics so that the
disqualification case based on the commission of election offenses would
not be decided before the election. This scenario is productive of more
fraud which certainly is not the main intent and purpose of the law.
The fact that Trinidad was already proclaimed and had assumed the
position of mayor did not divest the COMELEC of authority and jurisdiction
to continue the hearing and eventually decide the disqualification case. In
Aguam v. COMELEC[xxvii][12] this Court held -
Time and again this Court has given its imprimatur on the principle that
COMELEC is with authority to annul any canvass and proclamation which
was illegally made. The fact that a candidate proclaimed has assumed
office, we have said, is no bar to the exercise of such power. It of course
may not be availed of where there has been a valid proclamation. Since
private respondents petition before the COMELEC is precisely directed at
the annulment of the canvass and proclamation, we perceive that inquiry
into this issue is within the area allocated by the Constitution and law to
COMELEC x x x x Really, were a victim of a proclamation to be precluded
from challenging the validity thereof after that proclamation and the
assumption of office thereunder, baneful effects may easily supervene.
It must be emphasized that the purpose of a disqualification proceeding
is to prevent the candidate from running or, if elected, from serving, or to
prosecute him for violation of the election laws. Obviously, the fact that
a candidate has been proclaimed elected does not signify that his
disqualification is deemed condoned and mayno longer be the subject of a
separate investigation.
It is worth to note that an election offense has criminal as well as
electoral aspects. Its criminal aspect involves the ascertainment of the
guilt or innocence of the accused candidate. Like in any other criminal
case, it usually entails a full-blown hearing and the quantum of proof
required to secure a conviction is beyond reasonable doubt. Its electoral
aspect, on the other hand, is a determination of whether the offender
should be disqualified from office. This is done through an administrative
proceeding which is summary in character and requires only a clear
preponderance of evidence. Thus, under Sec. 4 of the COMELEC Rules of
Procedure, petitions for disqualification "shall be heard summarily after due
notice." It is the electoral aspect that we are more concerned with, under
which an erring candidate may be disqualified even without prior criminal
conviction.[xxviii][13]
It is quite puzzling that the COMELEC never acted on Sungas motion
to suspend the proclamation of Trinidad. The last sentence of Sec. 6 of
RA No. 6646 categorically declares that the Commission may order the
suspension of the proclamation of a candidate sought to be disqualified
whenever the evidence of his guilt is strong. And there is not a scintilla of
doubt that the evidence of Trinidads guilt was strong as shown in
the Report and Recommendation of the COMELEC Law Department
Parenthetically, there is merit to petitioners petition against the
respondent for disqualification for the alleged commission of election
offenses under Sec. 68 of the Omnibus Election Code, such as use of
armed men and act of terrorism, intimidation and coercion of voters,
massive vote-buying and others, duly supported by affidavits of witnesses
and other documents. Consequently, the petitioners evidence supporting
the disqualification of respondent remain unrebutted simply because
respondent has expressly waived his right to present evidence in SPA No.
95-213 in his Manifestation and objection to the presentation of evidence in
SPA No. 95-213 dated 16 June 1995, thus the waiver is the intentional
relinquishing of a known right of respondent TRINIDAD.
In fact, on the basis of this Report and Recommendation the
COMELEC directed the filing of four (4) criminal informations against
Trinidad before the Regional Trial Court, an indication that there was
indeed prima facie evidence of violation of election laws.
However, Sungas contention that he is entitled to be proclaimed as the
duly elected Mayor of the Municipality of Iguig, Province of Cagayan, in the
event that Trinidad is disqualified finds no support in law and
jurisprudence. The fact that the candidate who obtained the highest
number of votes is later disqualified for the office to which he was elected
does not 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
disqualified person may not be valid to install the winner into office
or maintain him there. But 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 qualified, they should
not be treated as stray, void or meaningless. [xxix][14]
Sunga totally miscontrued the nature of our democratic electoral
process as well as the sociological and psychological elements behind
voters preferences. Election is the process of complete ascertainment of
the expression of the popular will. Its ultimate purpose is to give effect to
the will of the electorate by giving them direct participation in choosing the
men and women who will run their government. Thus, it would be
extremely repugnant to the basic concept of the constitutionally guaranteed
right to suffrage if a candidate who has not acquired the majority or plurality
of votes is proclaimed winner and imposed as the representative of a
constituency, the majority of whom have positively declared through their
ballots that they do not choose him. [xxx][15]
While Sunga may have garnered the second highest number of votes,
the fact remains that he was not the choice of the people of Iguig,
Cagayan. The wreath of victory cannot be transferred from the
disqualified winner to the repudiated loser because the law then as now
only authorizes a declaration of election in favor of the person who has
obtained a plurality of votes and does not entitle a candidate receiving the
next highest number of votes to be declared elected. [xxxi][16] In Aquino v.
COMELEC,[xxxii][17] this Court made the following pronouncement:
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.
Also, what Sunga wants us to do is to disregard the express mandate of
Sec. 44, RA No. 7160,[xxxiii][18] which provides in part -
Sec. 44. Permanent vacancies in the office of the Governor, Vice-
Governor, Mayor, Vice-Mayor. - (a) If a permanent vacancy occurs in the
office of the Governor or Mayor, the Vice-Governor or Vice-
Mayor concerned shall become the Governor or Mayor x x x x
For purposes of this chapter, a permanent vacancy arises when an
elective local official fills a higher vacant office, refuses to assume
office, fails to qualify, dies, is removed from office, voluntarily resigns or is
otherwise permanently incapacitated to discharge the functions of his
office x x x x
This provision is echoed in Art. 83 of the Implementing Rules and
Regulations of the Local Government Code of 1991.
The language of the law is clear, explicit and unequivocal, thus
admitsno room for interpretation but merely application. This is the basic
legal precept. Accordingly, in the event that Trinidad is adjudged to be
disqualified, a permanent vacancy will be created for failure of the elected
mayor to qualify for the said office. In such eventuality, the duly elected
vice-mayor shall succeed as provided by law.[xxxiv][19] .MANUEL C. SUNGA,
petitioner,vs.COMMISSION ON ELECTIONS and FERDINAND B.
TRINIDAD, respondents. EN BANC (G.R. No. 125629 March 25, 1998)
CASE NO. 8: FACTS:This case involves the power of the Commission on
Elections (COMELEC) to annul the proclamation of a winning candidate for
Municipal Councilor in view of an error in the computation of totals in the
Statement of Votes which was made the basis of the proclamation, and to
direct the Municipal Board of Canvassers to reconvene and proclaim the
rightful winner.
On 9 May 1995 the Municipal Board of Canvassers of Tanza, Cavite,
issued a Certificate of Canvass of Votes and Proclamation of the Winning
Candidates for Municipal Offices (Municipal Councilors) as follows: (1)
Wilfredo A. Nuez, 14,888 votes; (2) Yuri A. Pacumio, 13,445 votes; (3)
Rogelino A. Dones, 12,428 votes; (4) Francisco C. Pasco, 12,218 votes; (5)
Rosauro I. Torres. 12,055 votes; (6) Rosalita C. Cenizal, 12,035 votes; (7)
Eliseo R. Arcaira Jr., 11,939 votes; (8) Policarpio A. Bocalan, 11,790 votes.
Accordingly, petitioner Atty. Rosauro I. Torres was proclaimed as the fifth
winning candidate for councilor. 1

Two (2) days after or on 11 May 1995 the same Municipal Board of
Canvassers requested the COMELEC for correction of the number of votes
garnered by petitioner who was earlier proclaimed as the fifth winning
candidate for councilor. The letter-request was signed by Rudolph Melon
and Norma Abril as Vice Chairman and Secretary, respectively. The letter
reads :

The undersigned members of the Board of Canvassers, Tanza, Cavite,


respectfully request for the correction of votes garnered by Mr. Rosauro I.
Torres who was proclaimed as the fifth winning candidate for Councilor
instead of Mr. Vicente Rafael A. de Peralta who landed in the number eight
(8th) position. The votes intended for MR. BERNARDO C. DIMAALA in the
sub-total as reflected in the Statement of Votes by precinct was
erroneously added to Mr. Torres for a total of Nine Hundred Thirty Four
(934) votes. Mr. Torres should have been number ten (10) in the winning
column and that if correction shall be made Mr. Torres shall garner a total
of Eleven Thousand One Hundred Twenty One (11,121) votes while Mr. de
Peralta garnered a total of Eleven Thousand Six Hundred Ten (11,610)
votes. 2

On 16 May 1995 the COMELEC set the case for hearing. Summonses with
notices of hearing were sent to petitioner Atty. Rosauro I. Torres and private
respondent Vicente Rafael A. de Peralta requiring them to file their
respective answers to the letter of the Municipal Board of Canvassers.
Petitioner filed his answer alleging that the subject matter of the letter-petition of
the Municipal Board of Canvassers, which was the correction of votes
garnered by him, properly falls within the jurisdiction of the Regional Trial
Court pursuant to Sec. 251 of the Omnibus Election Code. On the other
hand, private respondent argued for the annulment of the proclamation of
petitioner and prayed for his (private respondent) proclamation as the
winning candidate.

On 28 June 1995 respondent COMELEC issued the assailed En Banc resolution


granting the letter-request of the Municipal Board of Canvassers for the
correction of the number of votes garnered by petitioner. Respondent
Comelec also ordered the Municipal Board of Canvassers to reconvene
and proclaim private respondent Vicente Rafael A. de Peralta as the eighth
winning councilor of Tanza, Cavite.
On 5 July 1995 the Municipal Board of Canvassers issued a corrected Certificate
of Canvass of Votes and Proclamation of the Winning Candidates which
included private respondent Vicente Rafael A. de Peralta as the eighth
winning councilor and excluded petitioner from the new list of winning
candidates. 3

Petitioner came up to this Court alleging that public respondent COMELEC acted
without or in excess of its jurisdiction in granting the request of the
Municipal Board of Canvassers to correct the votes garnered by petitioner
and in ordering the proclamation of private respondent as the eighth
winning candidate thereby ousting petitioner from the new list of winners.
Petitioner also argues that the Municipal Board of Canvassers had no legal
personality to file the action motu proprio before the Comelec for correction;
that corrections are allowed only when there has been no proclamation yet,
citing Respicio v. Cusi; and finally, that once the Municipal Board of
Canvassers has declared and proclaimed the winners in an election its
functions are finished and its existence is terminated.

The Office of the Solicitor General submits that respondent COMELEC acted
beyond the limits of its power and authority when it ordered the Municipal
Board of Canvassers to reconvene and correct its alleged mistake in
counting the votes cast for candidate Dimaala in favor of petitioner; that by
having done so, respondent COMELEC had exercised original jurisdiction
over a municipal election contest contrary to what the Constitution
mandates; that Art. IX-C, Sec. 2, par 2, of the Constitution provides that the
Commission on Elections shall exercise appellate jurisdiction overall
contests involving elective municipal officials decided by trial courts of
general jurisdiction, or involving elective barangay officials decided by trial
courts of limited jurisdiction.

Respondent COMELEC filed its own comment alleging that the proclamation of
petitioner was flawed from the beginning for being tainted with clerical error
or mathematical mistake in the addition of votes; that pursuant to the ruling
in Villaroya v. Comelec 5 public respondent has original jurisdiction on all
matters relating to election returns, including the verification of the number
of votes received by opposing candidates in the election returns as
compared to the statement of votes in order to ensure that the true will of
the people is known; and, that according to Tatlonghari v. Comelec, 6 when
what is involved is purely mathematical and/or mechanical error in the
operation of the adding machine committed by the board of canvassers but
does not involve any opening of ballot boxes, examination and appreciation
of ballots and/or election returns, all that is required is to reconvene the
board of canvassers to rectify the error it inadvertently committed.
Respondent COMELEC also contends that since it has the direct control
and supervision over the municipal board of canvassers, the former has
authority to direct the latter to reconvene and continue its assigned task in
proclaiming the rightful winner for municipal councilor.
QUESTION: On the basis of the facts at bar, did the COMELEC commit grave
abuse of discretion to merit a reversal of its decision? Explain and support
your answer.

ANSWER NO 8: Petitioner's contentions must fail. The position of


COMELEC is well-taken. Sec. 7, Rule 27, of the COMELEC Rules of
Procedure provides
Sec. 7. Correction of Errors in Tabulation or Tallying of Results by
the Board of Canvassers. (a) where it is clearly shown before
proclamation that manifest errors were committed in the tabulation or
tallying of election returns, or certificates of canvass, during the canvassing
as where (1) a copy of the election returns of one precinct or two or more
copies of a certificate of canvass were tabulated more than once, (2) two
copies of the election returns or certificate of canvass were tabulated
separately, (3) there was a mistake in the adding or copying of the figures
into the certificate of canvass or into the statement of votes by precinct, or
(4) so-called election returns from non-existent precincts were included in
the canvass, the board may motu proprio or upon verified petition by any
candidate, political party, organization or coalition of political parties, after
due notice and hearing, correct the errors committed.
In Castromayor v. Comelec[xxxv][7] we held that although the above
provision applies to pre-proclamation controversies, and even if the
proclamation of a winning candidate has already been made, there is
nothing to prevent its application to cases like the one at bar in which the
validity of the proclamation is precisely in question. In Duremdes v.
COMELEC,[xxxvi][8] this Court sustained the power of the COMELEC En
Banc to order a correction of the Statement of Votes to make it conform to
the election returns in accordance with a procedure similar to the procedure
now embodied in Sec. 7, Rule 27, of the COMELEC Rules of Procedure.
Since the Statement of Votes forms the basis of the Certificate of Canvass
and of the proclamation, any error in the statement ultimately affects the
validity of the proclamation.
It may be argued that because petitioner has already been proclaimed
as winning candidate the remedy of the losing party is an election protest
over which the Regional Trial Court and not the COMELEC nor the
Municipal Board of Canvassers has original jurisdiction. However, as this
Court already ruled in Duremdes
It is Duremdes further submission that his proclamation could not be
declared null and void because a pre-proclamation controversy is not
proper after a proclamation has been made, the proper recourse being an
election protest. This is on the assumption, however, that there has been a
valid proclamation. Where a proclamation is null and void, the proclamation
is no proclamation at all and the proclaimed candidate's assumption of
office cannot deprive the COMELEC of the power to declare such nullity
and annul the proclamation (Aguam v. COMELEC, L-28955, 28 May 1968,
23 SCRA 883)[xxxvii][9]
The Statement of Votes is merely a tabulation per precinct of the votes
obtained by the candidates as reflected in the election returns. What is
involved in the instant case is simple arithmetic. In making the correction in
the computation the Municipal Board of Canvassers acted in an
administrative capacity under the control and supervision of the
COMELEC. Pursuant to its constitutional function to decide questions
affecting elections, the COMELEC En Banc has authority to resolve any
question pertaining to the proceedings of the Municipal Board of
Canvassers.[xxxviii][10] . ATTY. ROSAURO I. TORRES,
petitioner,vs.COMMISSION ON ELECTIONS and VICENTE RAFAEL A. DE
PERALTA, respondents. EN BANC G.R. No. 121031March 26, 1997

CASE NO. 9: Facts: Manuel Milla and Regina Balmores-Laxa were candidates
for councillor of Gerona, Tarlac in the May 14, 2001 elections. On May 18,
2001, Manuel Milla was proclaimed as the 8thwining candidate by the
Municipal Board of Canvassers (BOC) based on the Statement of Votes
and the Certificate of Canvass. One month after his proclamation or on
June 18, 2001, Regina filed a petition with the COMELEC against Manuel
and the BOC for correction of entries in the Statement of Votes based on
fraud or irregularities in the canvassing of votes, specifically the entries for
the 4 precincts in the Statement of Votes did not correspond to the election
returns for the respective precincts.
On June 29, 2001, Manuel took his oath of office and assumed office.
The BOC admits the erroneous tally, and prays that it it be allowed to
reconvene to effect the correction of entries in the Statement of Votes,
inorder to give way for Reginas winning as the eight councillor of Gerona.
In its Resolution of December 18, 2001, the COMELEC EN BANC,
denied the BOCs motion to reconvene, declared Manuels proclamation as
null and void and proclaimed Regina as the eight winning candidate.
Manuel argued that: 1) the petition of Regina was filed beyond the
reglementary period of five days from proclamation 2) pre-proclamation
cases should be terminated after proclamation and assumption of office 3)
padding of statement of votes isnot a proper subject of a pre-proclamation
case 4) that the COMELECen banc did not have jurisdiction over the
petition of Regina.
QUESTION: Resolve the issues raised by Manuel.

Answer NO 9: Petitioner maintains that the COMELEC has no jurisdiction


over the petition as it was filed beyond the reglementary period. For, so
petitioner contends, since the proclamation was made on May 18, 2001,
the petition to correct the Statement of Votes should have been filed within
5 days thereafter conformably with Section 5, Rule 27 of the COMELEC
Rules of Procedure[1][25] which reads:
Sec. 5. Pre-proclamation Controversies Which May Be Filed Directly
With the Commission. (a) The following pre-proclamation controversies
may be filed directly with the Commission:
1) x x x
2) When the issue involves the correction of manifest errors in the
tabulation or tallying of the results during the canvassing as where (1) a
copy of the election returns or certificate of canvass was tabulated more
than once, (2) two or more copies of the election returns of one precinct, or
two or more copies of certificate of canvass were tabulated separately,
(3) there has been a mistake in the copying of the figures into the
statement of votes or into the certificate of canvass, or (4) so-called returns
from non-existent precincts were included in the canvass, and such errors
could not have been discovered during the canvassing despite the exercise
of due diligence and proclamation of the winning candidates had already
been made.
b) x x x
If the petition is for correction, it must be filed not later than five (5) days
following the date of proclamation and must implead all candidates who
may be adversely affected thereby.
x x x (Underscoring supplied)
In holding that it validly assumed jurisdiction over the petition, the
COMELEC asserts that [a] proclamation that is based on a clerical or
mathematical mistake (or a blatant padding of votes) is not a valid
proclamation [h]ence, the same can be challenged even after the
proclaimed candidate has assumed office. [2][26]
The Statement of Votes forms the basis of the Certificate of Canvass
and of the proclamation. Any error in the statement ultimately affects the
validity of the proclamation.[3][27]
If a candidates proclamation is based on a Statement of Votes which
contains erroneous entries, it is null and void. It is no proclamation at all
and the proclaimed candidates assumption of office cannot deprive the
COMELEC of the power to annul the proclamation. [4][28]
In the case at bar, as the Statement of Votes contained erroneous
entries, the COMELEC rightfully assumed jurisdiction over respondents
petition for the correction thereof and declaration of nullity of petitioners
proclamation. While our election laws are silent when such and similar
petitions may be filed directly with the COMELEC, [5][29]the above-quoted
Section 5, Rule 27 of the Rules of Procedure sets a prescriptive period of
five (5) days following the date of proclamation. The COMELEC, however,
could suspend its own Rules of Procedure so as not to defeat the will of the
electorate.[6][30] For adherence to technicality that would put a stamp on a
palpably void proclamation, with the inevitable result of frustrating the
peoples will, cannot be countenanced.[7][31]
Petitioner nevertheless posits that even assuming that the COMELEC
may suspend the application of Section 5, Rule 27 of itsRules of
Procedure, it can no longer exercise jurisdiction after his proclamation, oath
and assumption of office[8][32] in view of Section 16 of Republic Act 7166 [9]
[33]
which states:
Sec. 16. Pre-Proclamation Cases Involving Provincial, City and
Municipal Offices. Pre-proclamation cases involving provincial, city and
municipal offices shall be allowed and shall be governed by Sections 17,
18, 19, 20, 21 and 22 hereof. All pre-proclamation cases pending before
the Commission shall be deemed terminated at the beginning of the
term of the office involved and the rulings of the boards of canvassers
concerned shall be deemed affirmed, without prejudice to the filing of a
regular election protest by the aggrieved party. However, proceedings
may continue when on the basis of evidence thus far presented, the
Commission determined that the petition appears meritorious and
accordingly issues an order for the proceeding to continue or when an
appropriate order has been issued by the Supreme Court in a petition for
certiorari. (Emphasis supplied)
By petitioners claim, there is no showing that respondents petition falls
under the exception in the above-quoted provision as the petition has not
been determined by the COMELEC to be meritorious and no order has
been issued for the proceeding to continue. [10][34] The claim does not
lie. The COMELEC issued Resolution No. 4493 on June 29, 2001
declaring the termination of all pre-proclamation cases except those
included in the list annexed thereto which list included SPC No. 01-311,
respondents petition before the COMELEC subject of the present petition.
Petitioner additionally claims that the COMELEC, in assuming original
jurisdiction over a case involving municipal officials, acted beyond the limits
of its power under the Constitution, particularly Section 2, paragraph 2 of
Article IX-C[11][35] which provides:
Sec. 2. The Commission on Elections shall exercise the following
powers and functions:
(1)
(2) Exercise exclusive original jurisdiction over all contests relating to
the elections, returns, and qualifications of all electiveregional, provincial,
and city officials, and appellate jurisdiction over all contests involving
elective municipal officials decided by trial courts of general jurisdiction, or
involving elective barangay officials decided by trial courts of limited
jurisdiction.
Decisions, final orders, or rulings of the Commission on election
contests involving elective municipal and barangay offices shall be final,
executory and not appealable .
(3) (Emphasis and underscoring supplied)
Petitioners above-claim does not likewise lie. By his admission, the
petition filed by respondent before the COMELEC involves a pre-
proclamation controversy, not an election contest and indeed it is not, for
while the petition alleged fraud and statistical improbability, the remedy
sought was merely for correction of erroneous entries in the Statement of
Votes which were based on the election returns.
As the petition then of respondent involves a pre-proclamation
controversy, following Sec. 3 of Art. IX-C of the 1987 Constitution which
provides:
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. (Emphasis and underscoring supplied)
it should have first been heard and decided by a division of the
COMELEC,37 and then by the En Banc if a motion for reconsideration of the
decision of the division were filed.
Since, as reflected above, the COMELEC sitting en banc acted on
respondents petition which was not first passed upon by a division, it acted
without jurisdiction, or with grave abuse of discretion. [12][36] The assailed
Resolution of the COMELEC dated December 18, 2001 is thus null and
void and it is in this light that the present petition is GRANTED. This leaves
it unnecessary to pass on petitioners second assigned error. Manuel Milla
v. Regina BALMORES-LAXA, (G.R. No. 151216, July18, 2003)

CASE NO. 10: Facts: Atty. Romulo Macalintal files a petition for certiorari and
prohibition before the Supreme Court seeking a declaration that certain
provisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of
2003) suffer from constittuiona infirmity. He raises the following questions:
1) Does Sec. 5(d) of said Act 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 Art. V of the Constitution?
2) Does Sec. 18.5 of the same law empowering the COMELEC to proclaim
the winning candidates for national offices (i.e. senators, pres. and vice
pres.) and party list representatives violate the constitutional mandate
under Art. VII, SEC. 4 of the Constitution that the winning candidates for
Pres. and Vice Pres. shall be proclaimed as winners by Congress?
3) May Congress, through the Joint Congressional Oversight Committee
created in Sec. 25 of said Act, exercise the power to review, revise, amend
and approve the Implementing Rules and Regulations that the COMELEC
shall promulgate without violating the independence of theCOMELEC
under Section 1, Art. IX-A of the 1987 Constitution?

Resolve the questions posed by Macalintal.

ANSWER NO 10: The seed of the present controversy is the interpretation


that is given to the phrase, qualified citizens of the Philippines abroad as it
appears in R.A. No. 9189, to wit:
SEC. 2. Declaration of Policy. It is the prime duty of the State to
provide a system of honest and orderly overseas absentee voting that
upholds the secrecy and sanctity of the ballot. Towards this end, the State
ensures equal opportunity to all qualified citizens of the Philippines
abroad in the exercise of this fundamental right.
SEC. 3. Definition of Terms. For purposes of this Act:
a) Absentee Voting refers to the process by which qualified citizens
of the Philippines abroad, exercise their right to vote;
. . . (Emphasis supplied)
f) Overseas Absentee Voter refers to a citizen of the Philippines
who is qualified to register and vote under this Act, not otherwise
disqualified by law, who is abroad on the day of elections. (Emphasis
supplied)
SEC. 4. Coverage. All citizens of the Philippines abroad, who are
not otherwise disqualified by law, at least eighteen (18) years of age on
the day of elections, may vote for president, vice-president, senators and
party-list representatives. (Emphasis supplied)
in relation to Sections 1 and 2, Article V of the Constitution which read:
SEC. 1. Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age, and
who shall have resided in the Philippines for at least one year and in the
place wherein they propose to vote for at least six months immediately
preceding the election. No literacy, property, or other substantive
requirement shall be imposed on the exercise of suffrage.
SEC. 2. The Congress shall provide a system for securing the
secrecy and sanctity of the ballot as well as a system for absentee voting
by qualified Filipinos abroad.
...... . . . (Emphasis supplied)
Section 1, Article V of the Constitution specifically provides that suffrage
may be exercised by (1) all citizens of the Philippines, (2) not otherwise
disqualified by law, (3) at least eighteen years of age, (4) who are residents
in the Philippines for at least one year and in the place where they propose
to vote for at least six months immediately preceding the election. Under
Section 5(d) of R.A. No. 9189, one of those disqualified from voting is an
immigrant or permanent resident who is recognized as such in the host
country unless he/she executes an affidavit declaring that he/she shall
resume actual physical permanent residence in the Philippines not later
than three years from approval of his/her registration under said Act.
Petitioner questions the rightness of the mere act of execution of an
affidavit to qualify the Filipinos abroad who are immigrants or permanent
residents, to vote. He focuses solely on Section 1, Article V of the
Constitution in ascribing constitutional infirmity to Section 5(d) of
R.A. No. 9189, totally ignoring the provisions of Section 2 empowering
Congress to provide a system for absentee voting by qualified Filipinos
abroad.
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed
give the impression that it contravenes Section 1, Article V of the
Constitution. Filipino immigrants and permanent residents overseas are
perceived as having left and abandoned the Philippines to live permanently
in their host countries and therefore, a provision in the law enfranchising
those who do not possess the residency requirement of the Constitution by
the mere act of executing an affidavit expressing their intent to return to the
Philippines within a given period, risks a declaration of
unconstitutionality. However, the risk is more apparent than real.
The Constitution is the fundamental and paramount law of the nation to
which all other laws must conform and in accordance with which all private
rights must be determined and all public authority administered. [13][23] Laws
that do not conform to the Constitution shall be stricken down for being
unconstitutional.
Generally, however, all laws are presumed to be
constitutional. InPeralta vs. COMELEC, the Court said:
. . . 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.[14][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.
[15][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,[16][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.[17][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. [18][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 ispurely
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.[19][29] (Emphasis supplied)
Ordinarily, an absentee is not a resident and vice versa; a person
cannot be at the same time, both a resident and an absentee. [20][30]However,
under our election laws and the countless pronouncements of the Court
pertaining to elections, an absentee remains attached to his residence in
the Philippines as residence is considered synonymous with domicile.
In Romualdez-Marcos,[21][31] the Court enunciated:
Article 50 of the Civil Code decrees that [f]or the exercise of civil rights
and the fulfillment of civil obligations, the domicile of natural persons is their
place of habitual residence. In Ong vs. Republic, this court took the
concept of domicile to mean an individuals permanent home, a place to
which, whenever absent for business or for pleasure, one intends to return,
and depends on facts and circumstances in the sense that they disclose
intent. Based on the foregoing, domicile includes the twin elements of the
fact of residing or physical presence in a fixed place and animus manendi,
or the intention of returning there permanently.
Residence, in its ordinary conception, implies the factual relationship of
an individual to a certain place. It is the physical presence of a person in a
given area, community or country. The essential distinction between
residence and domicile in law is that residence involves the intent to leave
when the purpose for which the resident has taken up his abode
ends. One may seek a place for purposes such as pleasure, business, or
health. If a persons intent be to remain, it becomes his domicile; if his
intent is to leave as soon as his purpose is established it is residence. It is
thus, quite perfectly normal for an individual to have different residences in
various places. However, a person can only have a single domicile, unless,
for various reasons, he successfully abandons his domicile in favor of
another domicile of choice. In Uytengsu vs. Republic, we laid this
distinction quite clearly:
There is a difference between domicile and residence. Residence is
used to indicate a place of abode, whether permanent or temporary;
domicile denotes a fixed permanent residence to which, when absent, one
has the intention of returning. A man may have a residence in one place
and a domicile in another. Residence is not domicile, but domicile is
residence coupled with the intention to remain for an unlimited time. A man
can have but one domicile for the same purpose at any time, but he may
have numerous places of residence. His place of residence is generally his
place of domicile, but it is not by any means necessarily so since no length
of residence without intention of remaining will constitute domicile.
For political purposes the concepts of residence and domicile are
dictated by the peculiar criteria of political laws. As these concepts have
evolved in our election law, what has clearly and unequivocally
emerged is the fact that residence for election purposes is used
synonymously with domicile.[22][32] (Emphasis supplied)
Aware of the domiciliary legal tie that links an overseas Filipino to his
residence in this country, the framers of the Constitution considered the
circumstances that impelled them to require Congress to establish a
system for overseas absentee voting, thus:
MR. OPLE. With respect to Section 1, it is not clear whether the right of
suffrage, which here has a residential restriction, is not denied to citizens
temporarily residing or working abroad. Based on the statistics of several
government agencies, there ought to be about two million such Filipinos at
this time. Commissioner Bernas had earlier pointed out that these
provisions are really lifted from the two previous Constitutions of 1935 and
1973, with the exception of the last paragraph. They could not therefore
have foreseen at that time the phenomenon now described as the Filipino
labor force explosion overseas.
According to government data, there are now about 600,000 contract
workers and employees, and although the major portions of these
expatriate communities of workers are to be found in the Middle East, they
are scattered in 177 countries in the world.
In a previous hearing of the Committee on Constitutional Commissions
and Agencies, the Chairman of the Commission on Elections, Ramon
Felipe, said that there was no insuperable obstacle to making effective the
right of suffrage for Filipinos overseas. Those who have adhered to their
Filipino citizenship notwithstanding strong temptations are exposed to
embrace a more convenient foreign citizenship. And those who on their
own or under pressure of economic necessity here, find that they have to
detach themselves from their families to work in other countries with
definite tenures of employment. Many of them are on contract employment
for one, two, or three years. They have no intention of changing their
residence on a permanent basis, but are technically disqualified from
exercising the right of suffrage in their countries of destination by the
residential requirement in Section 1 which says:
Suffrage shall be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are eighteen years of age or over, and
who shall have resided in the Philippines for at least one year and in the
place wherein they propose to vote for at least six months preceding the
election.
I, therefore, ask the Committee whether at the proper time they might
entertain an amendment that will make this exercise of the right to vote
abroad for Filipino citizens an effective, rather than merely a nominal right
under this proposed Constitution.
FR. BERNAS. Certainly, the Committee will consider that. But more
than just saying that, I would like to make a comment on the meaning of
residence in the Constitution because I think it is a concept that has been
discussed in various decisions of the Supreme Court, particularly in the
case of Faypon vs. Quirino, a 1954 case which dealt precisely with the
meaning of residence in the Election Law. Allow me to quote:
A citizen may leave the place of his birth to look for greener pastures,
as the saying goes, to improve his lot and that, of course, includes study in
other places, practice of his avocation, reengaging in business. When an
election is to be held, the citizen who left his birthplace to improve his lot
may decide to return to his native town, to cast his ballot, but for
professional or business reasons, or for any other reason, he may not
absent himself from the place of his professional or business activities.
So, they are here registered as voters as he has the qualifications to be
one, and is not willing to give up or lose the opportunity to choose the
officials who are to run the government especially in national
elections. Despite such registration, the animus revertendi to his home, to
his domicile or residence of origin has not forsaken him.
This may be the explanation why the registration of a voter in a place
other than his residence of origin has not been deemed sufficient to
consider abandonment or loss of such residence of origin.
In other words, residence in this provision refers to two residence
qualifications: residence in the Philippines and residence in the place
where he will vote. As far as residence in the Philippines is concerned, the
word residence means domicile, but as far as residence in the place
where he will actually cast his ballot is concerned, the meaning seems to
be different. He could have a domicile somewhere else and yet he is a
resident of a place for six months and he is allowed to vote there. So that
there may be serious constitutional obstacles to absentee voting, unless
the vote of the person who is absent is a vote which will be
considered as cast in the place of his domicile.
MR. OPLE. Thank you for citing the jurisprudence.
It gives me scant comfort thinking of about two million Filipinos who
should enjoy the right of suffrage, at least a substantial segment of these
overseas Filipino communities. The Committee, of course, is aware that
when this Article of the Constitution explicitly and unequivocally extends the
right of effective suffrage to Filipinos abroad, this will call for a logistical
exercise of global proportions. In effect, this will require budgetary and
administrative commitments on the part of the Philippine government,
mainly through the COMELEC and the Ministry of Foreign Affairs, and
perhaps, a more extensive elaboration of this mechanism that will be put in
place to make effective the right to vote. Therefore, seeking shelter in
some wise jurisprudence of the past may not be sufficient to meet the
demands of the right of suffrage for Filipinos abroad that I have
mentioned. But I want to thank the Committee for saying that an
amendment to this effect may be entertained at the proper
time. . . . . . . . . .
[23][33]
(Emphasis supplied)
Thus, the Constitutional Commission recognized the fact that while
millions of Filipinos reside abroad principally for economic reasons and
hence they contribute in no small measure to the economic uplift of this
country, their voices are marginal insofar as the choice of this countrys
leaders is concerned.
The Constitutional Commission realized that under the laws then
existing and considering the novelty of the system of absentee voting in this
jurisdiction, vesting overseas Filipinos with the right to vote would spawn
constitutional problems especially because the Constitution itself provides
for the residency requirement of voters:
MR. REGALADO. Before I act on that, may I inquire from
Commissioner Monsod if the term absentee voting also includes transient
voting; meaning, those who are, let us say, studying in Manila need not go
back to their places of registration, for instance, in Mindanao, to cast their
votes.
MR. MONSOD. I think our provision is for absentee voting by Filipinos
abroad.
MR. REGALADO. How about those people who cannot go back to the
places where they are registered?
MR. MONSOD. Under the present Election Code, there are provisions
for allowing students and military people who are temporarily in another
place to register and vote. I believe that those situations can be covered by
the Omnibus Election Code. The reason we want absentee voting to be
in the Constitution as a mandate to the legislature is that there could
be inconsistency on the residence rule if it is just a question of
legislation by Congress. So, by allowing it and saying that this is
possible, then legislation can take care of the rest.[24][34] (Emphasis
supplied)
Thus, Section 2, Article V of the Constitution came into being to remove
any doubt as to the inapplicability of the residency requirement in Section
1. It is precisely to avoid any problems that could impede the
implementation of its pursuit to enfranchise the largest number of qualified
Filipinos who are not in the Philippines that the Constitutional Commission
explicitly mandated Congress to provide a system for overseas absentee
voting.
The discussion of the Constitutional Commission on the effect of the
residency requirement prescribed by Section 1, Article V of the Constitution
on the proposed system of absentee voting for qualified Filipinos abroad is
enlightening:
MR. SUAREZ. May I just be recognized for a clarification. There are
certain qualifications for the exercise of the right of suffrage like having
resided in the Philippines for at least one year and in the place where they
propose to vote for at least six months preceding the elections. What is the
effect of these mandatory requirements on the matter of the exercise of the
right of suffrage by the absentee voters like Filipinos abroad?
THE PRESIDENT. Would Commissioner Monsod care to answer?
MR. MONSOD. I believe the answer was already given by
Commissioner Bernas, that the domicile requirements as well as the
qualifications and disqualifications would be the same.
THE PRESIDENT. Are we leaving it to the legislature to devise the
system?
FR. BERNAS. I think there is a very legitimate problem raised there.
THE PRESIDENT. Yes.
MR. BENGZON. I believe Commissioner Suarez is clarified.
FR. BERNAS. But I think it should be further clarified with regard to the
residence requirement or the place where they vote in practice; the
understanding is that it is flexible. For instance, one might be a resident of
Naga or domiciled therein, but he satisfies the requirement of residence in
Manila, so he is able to vote in Manila.
MR. TINGSON. Madam President, may I then suggest to the
Committee to change the word Filipinos to QUALIFIED FILIPINO
VOTERS. Instead of VOTING BY FILIPINOS ABROAD, it should be
QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFIED
VOTERS LIVING ABROAD, would that not satisfy the requirement?
THE PRESIDENT. What does Commissioner Monsod say?
MR. MONSOD. Madam President, I think I would accept the phrase
QUALIFIED FILIPINOS ABROAD because QUALIFIED would assume
that he has the qualifications and none of the disqualifications to vote.
MR. TINGSON. That is right. So does the Committee accept?
FR. BERNAS. QUALIFIED FILIPINOS ABROAD?
THE PRESIDENT. Does the Committee accept the amendment?
MR. REGALADO. Madam President.
THE PRESIDENT. Commissioner Regalado is recognized.
MR. REGALADO. When Commissioner Bengzon asked me to read my
proposed amendment, I specifically stated that the National Assembly shall
prescribe a system which will enable qualified citizens, temporarily absent
from the Philippines, to vote. According to Commissioner Monsod, the use
of the phrase absentee voting already took that into account as its
meaning. That is referring to qualified Filipino citizens temporarily abroad.
MR. MONSOD. Yes, we accepted that. I would like to say that with
respect to registration we will leave it up to the legislative assembly, for
example, to require where the registration is. If it is, say, members of the
diplomatic corps who may be continuously abroad for a long time, perhaps,
there can be a system of registration in the embassies. However, we do not
like to preempt the legislative assembly.
THE PRESIDENT. Just to clarify, Commissioner Monsods amendment
is only to provide a system.
MR. MONSOD. Yes.
THE PRESIDENT. The Commissioner is not stating here that he wants
new qualifications for these absentee voters.
MR. MONSOD. That is right. They must have the qualifications and
none of the disqualifications.
THE PRESIDENT. It is just to devise a system by which they can vote.
MR. MONSOD. That is right, Madam President.[25][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 abroadwith
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.
[26][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, [27][37] the strategic location of
Section 2 indicates that the Constitutional Commission provided for an
exception to the actual residency requirement of Section 1 with respect to
qualified Filipinos abroad. The same Commission has in effect declared
that qualified Filipinos who are not in the Philippines may be allowed to
vote even though they do not satisfy the residency requirement in Section
1, Article V of the Constitution.
That Section 2 of Article V of the Constitution is an exception to the
residency requirement found in Section 1 of the same Article was in fact the
subject of debate when Senate Bill No. 2104, which became
R.A. No. 9189, was deliberated upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in relation to the
constitutional provisions. I think the sponsor and I would agree that the
Constitution is supreme in any statute that we may enact.
Let me read Section 1, Article V, of the Constitution entitled, Suffrage.
It says:
Section 1. Suffrage may be exercised by all citizens of the Philippines
not otherwise disqualified by law, who are at least eighteen years of age,
and who shall have resided in the Philippines for at least one year and in
the place wherein they propose to vote for at least six months immediately
preceding the election.
Now, Mr. President, the Constitution says, who shall have resided in the
Philippines. They are permanent immigrants. They have changed
residence so they are barred under the Constitution. This is why I asked
whether this committee amendment which in fact does not alter the original
text of the bill will have any effect on this?
Senator Angara. Good question, Mr. President. And this has been asked in
various fora. This is in compliance with the Constitution. One, the
interpretation here of residence is synonymous with domicile.
As the gentleman and I know, Mr. President, domicile is the intent to return to
ones home. And the fact that a Filipino may have been physically
absent from the Philippines and may be physically a resident of the
United States, for example, but has a clear intent to return to the
Philippines, will make him qualified as a resident of the Philippines
under this law.
This is consistent, Mr. President, with the constitutional mandate that we that
Congress must provide a franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle literally as
demanding physical presence, then there is no way we can provide
for offshore voting to our offshore kababayan, Mr. President.
Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of
Article V, it reads: The Congress shall provide a system for securing the
secrecy and sanctity of the ballot as well as a system for absentee voting
by qualified Filipinos abroad.
The key to this whole exercise, Mr. President, is qualified. In other
words, anything that we may do or say in granting our compatriots
abroad must be anchored on the proposition that they are qualified.
Absent the qualification, they cannot vote. And residents (sic) is a
qualification.
I will lose votes here from permanent residents so-called green-card holders,
but the Constitution is the Constitution. We cannot compromise on this.
The Senate cannot be a party to something that would affect or impair the
Constitution.
Look at what the Constitution says In the place wherein they propose to vote
for at least six months immediately preceding the election.
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are
separated only by a creek. But one who votes in Makati cannot vote in
Pateros unless he resides in Pateros for six months. That is how restrictive
our Constitution is. I am not talking even about the Election Code. I am
talking about the Constitution.
As I have said, if a voter in Makati would want to vote in Pateros, yes, he may
do so. But he must do so, make the transfer six months before the election,
otherwise, he is not qualified to vote.
That is why I am raising this point because I think we have a fundamental
difference here.
Senator Angara. It is a good point to raise, Mr. President. But it is a point
already well-debated even in the constitutional commission of 1986. And
the reason Section 2 of Article V was placed immediately after the six-
month/one-year residency requirement is to demonstrate
unmistakably that Section 2 which authorizes absentee voting is an
exception to the six-month/one-year residency requirement. That is
the first principle, Mr. President, that one must remember.
The second reason, Mr. President, is that under our jurisprudence and I think
this is so well-entrenched that one need not argue about it residency
has been interpreted as synonymous with domicile.
But the third more practical reason, Mr. President, is, if we follow the
interpretation of the gentleman, then it is legally and constitutionally
impossible to give a franchise to vote to overseas Filipinos who do
not physically live in the country, which is quite ridiculous because
that is exactly the whole point of this exercise to enfranchise them
and empower them to vote.
[28][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. 9189specifically
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. [29]
[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 noapplication 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,[30][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. 9189empowering 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. [31][41]
Respondent COMELEC has no comment on the matter.
Indeed, the phrase, proclamation of winning candidates, in Section 18.5
of R.A. No. 9189 is far too sweeping that it necessarily includes the
proclamation of the winning candidates for the presidency and the vice-
presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4,
Article VII of the Constitution only insofar as said Section totally
disregarded the authority given to Congress by the Constitution to proclaim
the winning candidates for the positions of president and vice-president.
In addition, the Court notes that Section 18.4 of the law, to wit:
18.4. . . . Immediately upon the completion of the canvass, the
chairman of the Special Board of Canvassers shall transmit via facsimile,
electronic mail, or any other means of transmission equally safe and
reliable the Certificates of Canvass and the Statements of Votes to the
Commission, . . . [Emphasis supplied]
clashes with paragraph 4, Section 4, Article VII of the Constitution which
provides that the returns of every election for President and Vice-President
shall be certified by the board of canvassers to Congress.
Congress could not have allowed the COMELEC to usurp a power that
constitutionally belongs to it or, as aptly stated by petitioner, to encroach
on the power of Congress to canvass the votes for president and vice-
president and the power to proclaim the winners for the said
positions. The provisions of the Constitution as the fundamental law of the
land should be read as part of The Overseas Absentee Voting Actof
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
beindependent, 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.[32][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 [33][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. [34][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.
[35][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. [36][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. [37][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 nooption 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 thisAct 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.[38][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 UPHELDwith 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.(Romulo Macalintal v. Comelec, G.R.
No. 157013, July 10, 2003)

CASE NO. 11. Facts: Rosalina Lopez was born in Australia in 1943 to a
Filipino father and anAustralia mother. She is married to a Filipino.In 1988
she registered herself with the Bureau of Immigration as an Autralian
national and was issued an Alien Certificate of Residence .She was issued
an Australian Passport. On January 15, 1992 she renounced her Australian
citizenship.
Question: Did Lopez application for ACR and ICR and her being a holder of
an Australian passport constitute her renunciation of Phil. Citizenship?

Answer NO 11: Valles v. COMELEC, 337 SCRA 543 Ruling: No. Under CA
No. 63, renunciation of citizenship must be express. Her application for
ACR and ICR did not amount to express renunciation or repudiation of her
citizenship.

CASE NO. 12. Rico Balde was born in 1934 in Chicago, USA, as a
legitimate son of a Filipino father and an American mother (hence was
admittedly both a Filipino and an American). He was continuously a
resident in the Philippines. In 1958 at the age of 24 and in 1979 at the age
of 45, he applied with the Bureau of Immigration for an ALIEN
CERTIFICATE OF REGISTRATION (ACR) and IMMIGRANT
CERTIFICATE OF RESIDENCE (ICR) and was granted. He had been
participating in elections in the Philippines as a voter, however, and was
issued a Phil. Passport in 1987.
Question: By registering twice with the BID (Bureau of Immigration and
Deportation) as an alien, did he lose his Filipino citizenship?
Answer: NO 12. AZNAR v. COMELEC , 185 scra 708 Ruling: No. Under
COMMONWEALTH ACT No. 63, there are three modes to lose Filipino
citizenship, which are relevant to him, namely: by naturalization, by express
renunciation and by subscribing to an oath of allegiance to a foreign
country. His application for an ACR and ICR is not one of them to make him
lose his Phil. Citizenship. The mere fact that he was a holder of a certificate
stating that he is an American did not mean that he is no longer a Filipino.
An application for an ACR is not tantamount to a renunciation of Philippine
citizenship.

CASE NO. 13: FACTS: Petitioner Ernesto S. Mercado and private


respondent Eduardo B. Manzano were candidates for vice mayor of the
City of Makati in the May 11, 1998 elections. The other one was Gabriel V.
Daza III. The results of the election were as follows:

Eduardo B. Manzano=103,853; Ernesto S. Mercado=100,894; Gabriel V.


Daza III=54,275.

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
COMELEC's Second Division said:
What is presented before the Commission is a petition for
disqualification of Eduardo Barrios Manzano as candidate for the office of
Vice-Mayor of Makati City in the May 11, 1998 elections. The petition is
based on the ground that the respondent is an American citizen based on
the record of the Bureau of Immigration and misrepresented himself as a
natural-born Filipino citizen.
In his answer to the petition filed on April 27, 1998, the respondent
admitted that he is registered as a foreigner with the Bureau of Immigration
under Alien Certificate of Registration No. B-31632 and alleged that he is a
Filipino citizen because he was born in 1955 of a Filipino father and a
Filipino mother. He was born in the United States, San Francisco,
California, September 14, 1955, and is considered in American citizen
under US Laws. But notwithstanding his registration as an American
citizen, he did not lose his Filipino citizenship.
Judging from the foregoing facts, it would appear that respondent
Manzano is born 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.

QUESTION: Is the COMELEC ruling correct? Explain.

Answer NO 13: COMELEC IS WRONG.ERNESTO S. MERCADO,


petitioner,vs.EDUARDO BARRIOS MANZANO and the COMMISSION ON
ELECTIONS, respondents. G.R. No. 135083 May 26, 1999
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.[xxxix][8]
Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor
General, who sides with him in this case, contends that through 40(d) of
the Local Government Code, Congress has command[ed] in explicit terms
the ineligibility of persons possessing dual allegiance to hold local elective
office.
To begin with, dual citizenship is different from dual allegiance. The
former arises when, as a result of the concurrent application of the different
laws of two or more states, a person is simultaneously considered a
national by the said states. [xl][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 Philippinesmay,
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:[xli][10]
. . . I want to draw attention to the fact that dual allegiance is not dual
citizenship. I have circulated a memorandum to the Bernas Committee
according to which a dual allegiance and I reiterate a dual allegiance is
larger and more threatening than that of mere double citizenship which is
seldom intentional and, perhaps, never insidious. That is often a function of
the accident of mixed marriages or of birth on foreign soil. And so, I do not
question double citizenship at all.
What we would like the Committee to consider is to take constitutional
cognizance of the problem of dual allegiance. For example, we all know
what happens in the triennial elections of the Federation of Filipino-Chinese
Chambers of Commerce which consists of about 600 chapters all over the
country. There is a Peking ticket, as well as a Taipei ticket. Not widely
known is the fact that the Filipino-Chinese community is represented in the
Legislative Yuan of the Republic of China in Taiwan. And until recently, the
sponsor might recall, in Mainland China in the Peoples Republic of China,
they have the Associated Legislative Council for overseas Chinese wherein
all of Southeast Asia including some European and Latin countries were
represented, which was dissolved after several years because of diplomatic
friction. At that time, the Filipino-Chinese were also represented in that
Overseas Council.
When I speak of double allegiance, therefore, I speak of this unsettled
kind of allegiance of Filipinos, of citizens who are already Filipinos but who,
by their acts, may be said to be bound by a second allegiance, either to
Peking or Taiwan. I also took close note of the concern expressed by some
Commissioners yesterday, including Commissioner Villacorta, who were
concerned about the lack of guarantees of thorough assimilation, and
especially Commissioner Concepcion who has always been worried about
minority claims on our natural resources.
Dual allegiance can actually siphon scarce national capital to Taiwan,
Singapore, China or Malaysia, and this is already happening. Some of the
great commercial places in downtown Taipei are Filipino-owned, owned by
Filipino-Chinese it is of common knowledge in Manila. It can mean a
tragic capital outflow when we have to endure a capital famine which also
means economic stagnation, worsening unemployment and social unrest.
And so, this is exactly what we ask that the Committee kindly
consider incorporating a new section, probably Section 5, in the article on
Citizenship which will read as follows: DUAL ALLEGIANCE IS INIMICAL
TO CITIZENSHIP AND SHALL BE DEALT WITH ACCORDING TO LAW.
In another session of the Commission, Ople spoke on the problem of
these citizens with dual allegiance, thus:[xlii][11]
. . . A significant number of Commissioners expressed their concern
about dual citizenship in the sense that it implies a double allegiance under
a double sovereignty which some of us who spoke then in a freewheeling
debate thought would be repugnant to the sovereignty which pervades the
Constitution and to citizenship itself which implies a uniqueness and which
elsewhere in the Constitution is defined in terms of rights and obligations
exclusive to that citizenship including, of course, the obligation to rise to the
defense of the State when it is threatened, and back of this, Commissioner
Bernas, is, of course, the concern for national security. In the course of
those debates, I think some noted the fact that as a result of the wave of
naturalizations since the decision to establish diplomatic relations with the
Peoples Republic of China was made in 1975, a good number of these
naturalized Filipinos still routinely go to Taipei every October 10; and it is
asserted that some of them do renew their oath of allegiance to a foreign
government maybe just to enter into the spirit of the occasion when the
anniversary of the Sun Yat-Sen Republic is commemorated. And so, I have
detected a genuine and deep concern about double citizenship, with its
attendant risk of double allegiance which is repugnant to our sovereignty
and national security. I appreciate what the Committee said that this could
be left to the determination of a future legislature. But considering the
scale of the problem, the real impact on the security of this country, arising
from, let us say, potentially great numbers of double citizens professing
double allegiance, will the Committee entertain a proposed amendment at
the proper time that will prohibit, in effect, or regulate double citizenship?
Clearly, in including 5 in Article IV on citizenship, the concern of the
Constitutional Commission was not with dual citizens per se but with
naturalized citizens who maintain their allegiance to their countries of origin
even after their naturalization. Hence, the phrase dual citizenship
in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as
referring to dual allegiance. Consequently, persons with mere dual
citizenship do not fall under this disqualification. Unlike those with dual
allegiance, who must, therefore, be subject to strict process with respect to
the termination of their status, for candidates with dual citizenship, it should
suffice if, upon the filing of their certificates of candidacy, they elect
Philippine citizenship to terminate their status as persons with dual
citizenship considering that their condition is the unavoidable consequence
of conflicting laws of different states. As Joaquin G. Bernas, one of the
most perceptive members of the Constitutional Commission, pointed out:
[D]ual citizenship is just a reality imposed on us because we
have no control of the laws on citizenship of other countries. We recognize
a child of a Filipino mother. But whether or not she is considered a citizen
of another country is something completely beyond our control. [xliii][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 nomoment as the
following discussion on 40(d) between Senators Enrile and Pimentel
clearly shows:[xliv][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 isno 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[xlv][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,[xlvi][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[xlvii][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:[xlviii][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[xlix]
[18]
applies mutatis mutandis to private respondent in the case at bar:
. . . Considering the fact that admittedly Osmea was both a Filipino
and an American, the mere fact that he has a Certificate stating he is an
American does not mean that he is not still a Filipino. . . . [T]he
Certification that he is an American does not mean that he is not still a
Filipino, possessed as he is, of both nationalities or citizenships. Indeed,
there is no express renunciation here of Philippine citizenship; truth to tell,
there is even no implied renunciation of said citizenship. When We
consider that the renunciation needed to lose Philippine citizenship must be
express, it stands to reason that there can be no such loss of Philippine
citizenship when there is no renunciation, either express or implied.
To recapitulate, by declaring in his certificate of candidacy that he is a
Filipino citizen; that he is not a permanent resident or immigrant of another
country; that he will defend and support the Constitution of the Philippines
and bear true faith and allegiance thereto and that he does so without
mental reservation, private respondent has, as far as the laws of this
country are concerned, effectively repudiated his American citizenship and
anything which he may have said before as a dual citizen.
On the other hand, private respondents oath of allegiance to the
Philippines, when considered with the fact that he has spent his youth and
adulthood, received his education, practiced his profession as an artist, and
taken part in past elections in this country, leaves no doubt of his election of
Philippine citizenship.
His declarations will be taken upon the faith that he will fulfill his
undertaking made under oath. Should he betray that trust, there are
enough sanctions for declaring the loss of his Philippine citizenship through
expatriation in appropriate proceedings. In Yu v. Defensor-Santiago,[l][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
CASE NO. 14.FACTS: The facts are as follows:
Pursuant to Art. X, 18 of the 1987 Constitution, Congress passed R.A. No.
6734, the Organic Act for the Autonomous Region in Muslim Mindanao,
calling for a plebiscite to be held in the provinces of Basilan, Cotobato,
Davao del Sur, Lanao del Norte, Lanao del Sur, Maguindanao, Palawan,
South Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte,
and Zamboanga del Sur, and the cities of Cotabato, Dapitan, Dipolog,
General Santos, Iligan, Marawi, Pagadian, Puerto Princesa and
Zamboanga. In the ensuing plebiscite held on November 16, 1989, four
provinces voted in favor of creating an autonomous region. These are the
provinces of Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi. In
accordance with the constitutional provision, these provinces became the
Autonomous Region in Muslim Mindanao.

On the other hand, with respect to provinces and cities not voting in favor of
the Autonomous Region, Art. XIX, 13 of R.A. No. 6734 provides,

That only the provinces and cities voting favorably in such plebiscites shall
be included in the Autonomous Region in Muslim Mindanao. The provinces
and cities which in the plebiscite do not vote for inclusion in the
Autonomous Region shall remain in the existing administrative regions.
Provided, however, that the President may, by administrative determination,
merge the existing regions.

Pursuant to the authority granted by this provision, then President Corazon


C. Aquino issued on October 12, 1990 Executive Order No. 429, "providing
for the Reorganization of the Administrative Regions in Mindanao." Under
this Order, as amended by E.O. No. 439

(1) Misamis Occidental, at present part of Region X, will become part


of Region IX.
(2) Oroquieta City, Tangub City and Ozamiz City, at present parts of
Region X will become parts of Region IX.
(3) South Cotobato, at present a part of Region XI, will become part
of Region XII.
(4) General Santos City, at present part of Region XI, will become
part of Region XII.
(5) Lanao del Norte, at present part of Region XII, will become part of
Region IX.
(6) Iligan City and Marawi City, at present part of Region XII, will
become part of Region IX.

Petitioners in G.R. No. 96754 are, or at least at the time of the filing of their
petition, members of Congress representing various legislative districts in
South Cotobato, Zamboanga del Norte, Basilan, Lanao del Norte and
Zamboanga City. On November 12, 1990, they wrote then President
Aquino protesting E.O. No. 429. They contended that

There is no law which authorizes the President to pick certain provinces


and cities within the existing regions some of which did not even take part
in the plebiscite as in the case of the province of Misamis Occidental and
the cities of Oroquieta, Tangub and Ozamiz and restructure them to new
administrative regions. On the other hand, the law (Sec. 13, Art. XIX, R.A.
6734) is specific to the point, that is, that "the provinces and cities which in
the plebiscite do not vote for inclusion in the Autonomous Region shall
remain in the existing administrative regions."

The transfer of the provinces of Misamis Occidental from Region X to


Region IX; Lanao del Norte from Region XII to Region IX, and South
Cotobato from Region XI to Region XII are alterations of the existing
structures of governmental units, in other words, reorganization. This can
be gleaned from Executive Order No. 429, thus

Whereas, there is an urgent need to reorganize the administrative regions


in Mindanao to guarantee the effective delivery of field services of
government agencies taking into consideration the formation of the
Autonomous Region in Muslim Mindanao.

With due respect to Her Excellency, we submit that while the authority
necessarily includes the authority to merge, the authority to merge does not
include the authority to reorganize. Therefore, the President's authority
under RA 6734 to "merge existing regions" cannot be construed to include
the authority to reorganize them. To do so will violate the rules of statutory
construction.
The transfer of regional centers under Executive Order 429 is actually
a restructuring (reorganization) of administrative regions. While this
reorganization, as in Executive Order 429, does not affect the
apportionment of congressional representatives, the same is not valid
under the penultimate paragraph of Sec. 13, Art. XIX of R.A. 6734 and
Ordinance appended to the 1986 Constitution apportioning the seats of the
House of Representatives of Congress of the Philippines to the different
legislative districts in provinces and cities.
As their protest went unheeded, while Inauguration Ceremonies of
the New Administrative Region IX were scheduled on January 26, 1991,
petitioners brought this suit for certiorari and prohibition.
On the other hand, the petitioner in G.R. No. 96673, Immanuel
Jaldon, is a resident of Zamboanga City, who is suing in the capacity of
taxpayer and citizen of the Republic of the Philippines.
Petitioners in both cases contend that Art. XIX, 13 of R.A. No. 6734
is unconstitutional because (1) it unduly delegates legislative power to the
President by authorizing him to "merge [by administrative determination]
the existing regions" or at any rate provides no standard for the exercise of
the power delegated and (2) the power granted is not expressed in the title
of the law.

In addition, petitioner in G.R. No. 96673 challenges the validity of


E.O. No. 429 on the ground that the power granted by Art. XIX, 13 to the
President is only to "merge regions IX and XII" but not to reorganize the
entire administrative regions in Mindanao and certainly not to transfer the
regional center of Region IX from Zamboanga City to Pagadian City.
QUESTIONS: 1. Given the set of facts, is it within the power of the
President to merge administrative regions, transfer regional seats? Explain.
2.Discuss the validity/invalidity of the issues raised by
petitioner Jaldon.
Answer no. 14: JAMES L. CHIONGBIAN, ET AL. vs. OSCAR M. ORBOS,
ET AL. (G.R. No. 96754 June 22, 1995) It is within the political prerogatives
of the president to merge administrative regions.Jaldon therefore is
wrong. POLITICAL LAW; LOCAL GOVERNMENT; AUTONOMOUS
REGIONS; POWER TO MERGE ADMINISTRATIVE AGENCIES;
TRADITIONALLY LODGED WITH THE PRESIDENT TO FACILITATE THE
EXERCISE OF THE POWER OF GENERAL SUPREVISION. On
September 9, 1968, R.A. No. 5435 was passed "authorizing the President
of the Philippines, with the help of a Commission on Reorganization, to
reorganize the different executive departments, bureaus, offices, agencies
and instrumentalities of the government, including banking or financial
institutions and corporations owned or controlled by it." The purpose was to
promote "simplicity, economy and efficiency in the government." The
Commission on Reorganization created under the law was required to
submit an integrated reorganization plan not later than December 31, 1969
to the President who was in turn required to submit the plan to Congress
within forty days after the opening of its next regular session. The law
provided that any reorganization plan submitted would become effective
only upon the approval of Congress. Accordingly, the Reorganization
Commission prepared an Integrated Reorganization Plan which divided the
country into eleven administrative regions. By P.D. No. 1, the Plan was
approved and made part of the law of the land on September 24, 1972.
P.D. No. 1 was twice amended in 1975, first by P.D.No. 742 which
"restructur[ed] the regional organization of Mindanao, Basilan, Sulu and
Tawi-Tawi" and later by P.D. No. 773 which further "restructur[ed] the
regional organization of Mindanao and divid[ed] Region IX into two sub-
regions." In 1978, P.D. No. 1555 transferred the regional center of Region
IX from Jolo to Zamboanga City. Thus the creation and subsequent
reorganization of administrative regions have been by the President
pursuant to authority granted to him by law. In conferring on the President
the power "to merge [by administrative determination] the existing regions"
following the establishment of the Autonomous Region in Muslim
Mindanao, Congress merely followed the pattern set in previous legislation
dating back to the initial organization of administrative regions in 1972. The
choice of the President as delegate is logical because the division of the
country into regions is intended to facilitate not only the administration of
local governments but also the direction of executive departments which
the law requires should have regional offices. As this Court observed in
Abbas, "while the power to merge administrative regions is not expressly
provided for in the Constitution, it is a power which has traditionally been
lodged with the President to facilitate the exercise of the power of general
supervision over local governments [see Art. X, 4 of the Constitution]."
The regions themselves are not territorial and political divisions like
provinces, cities, municipalities and barangays but are "mere groupings of
contiguous provinces for administrative purposes." The power conferred
on the President is similar to the power to adjust municipal boundaries
which has been described in Pelaez v. Auditor General (122 Phil. 965,
973-4 [1965]) as "administrative in nature." There is, therefore, no
abdication by Congress of its legislative power in conferring on the
President the power to merge administrative regions.
PROVISION THAT PROVINCES AND CITIES WHICH DO NOT VOTE
FOR INCLUSION THEREIN SHALL REMAIN IN THE EXISTING
ADMINISTRATIVE REGIONS; QUALIFIED. While Art. XIX, 13 provides
that "The provinces and cities which do not vote for inclusion in the
Autonomous Region shall remain in the existing administrative regions,"
this provision is subject to the qualification that "the President may by
administrative determination merge the existing regions." This means that
while non-assenting provinces and cities are to remain in the regions as
designated upon the creation of the Autonomous Region, they may
nevertheless be regrouped with contiguous provinces forming other regions
as the exigency of administration may require. The regrouping is done only
on paper. It involves no more than a redefinition of the lines separating
administrative regions for the purpose of facilitating the administrative
supervision of local government units by the President and insuring the
efficient delivery of essential services. There will be no "transfer" of local
governments from one region to another except as they may thus be
regrouped so that a province like Lanao del Norte, which is at present part
of Region XII, will become part of Region IX. The regrouping of contiguous
provinces is not even analogous to a redistricting or to the division or
merger of local governments, which all have political consequences on the
right of people residing in those political units to vote and to be voted for. It
cannot be overemphasized that administrative regions are mere groupings
of contiguous provinces for administrative purposes, not for political
representation. Petitioners nonetheless insist that only those regions, in
which the provinces and cities which voted for inclusion in the Autonomous
Region are located, can be "merged" by the President. To be sure Art. XIX,
13 is not so limited. But the more fundamental reason is that the
President's power cannot be so limited without neglecting the necessities of
administration. It is noteworthy that the petitioners do not claim that the
reorganization of the regions in E.O. No. 429 is irrational. The fact is that,
as they themselves admit, the reorganization of administrative regions in
E.O. No. 429 is based on relevant criteria, to wit: (1) contiguity and
geographical features; (a) transportation and communication facilities; (3)
cultural and language groupings; (4) land area and population; (5) existing
regional centers adopted by several agencies; (6) socio-economic
development programs in the regions and (7) number of provinces and
cities. What has been said above applies to the change of the regional
center from Zamboanga City to Pagadian City. Petitioners contend that the
determination of provincial capitals has always been by act of Congress.
But as, this Court said in Abbas, administrative regions are mere
"groupings of contiguous provinces for administrative purposes. . . [They]
are not territorial and political subdivisions like provinces, cities,
municipalities and barangays." There is, therefore, no basis for contending
that only Congress can change or determine regional centers. To the
contrary, the examples of P.D. Nos. 1, 742, 773 and 1555 suggest that the
power to reorganize administrative regions carries with it the power to
determine the regional center. It may be that the transfer of the regional
center in Region IX from Zamboanga City to Pagadian City may entail the
expenditure of large sums of money for the construction of buildings and
other infrastructures to house regional offices. That contention is addressed
to the wisdom of the transfer rather than to its legality and it is settled that
courts are not the arbiters of the wisdom or expediency of legislation. In
any event this is a question that we will consider only if fully briefed and
upon a more adequate record than that presented by petitioners.
CASE No 15.Facts: Juan Calderon was born on 20 August 1939.His
grandfather was Pedro Calderon, a Spanish national, who died in the
Philippines on September 11, 1954.His father was Andoy Calderon who
married on September 16, 1940 Jean Stuart, an American national. The
records futher showed that Andoy got married to Juana Calingasan on
August 12, 1938.

Questions: 1. Juan Calderon would like to run as Vice-President


of the Philippines in the next election. Is he qualified to run? Explain.
2.Granting that he filed his certificate of candidacy
as Vice-President, can his opponent file an election protest
against him before the Presidential Electoral Tribunal? Explain.

ANSWER no. 15: He is qualified considering that he is a Filipino citizen,his


citizenship derived from his grandfather who was considered by law as
Filipino citizen under the Jones Law of 1902. ON the other hand, the
election protest should be dismissed because of lack of jurisdiction. The
PET has jurisdiction only until one of the candidates is already proclaimes
president.In this case, no one is yet proclaimed.(TECSON V. COMELEC,
161434, March 3, 2004)

CASE NO. 16.Facts: Manuel S. Pineda was employed with the Philippine
National Oil Co.-Energy Development Corp. (PNOC-EDC), as subsidiary of
the Philippine National Oil Co., from September 17, 1981, when he was
hired as clerk, to January 26, 1989, when his employment was terminated.
The events leading to his dismissal from his job are not disputed.
In November, 1987, while holding the position of Geothermal
Construction Secretary, Engineering and Construction Department, at
Tongonan Geothermal Project, Ormoc City, Pineda decided to run for
councilor of the Municipality of Kananga, Leyte, in the local elections
scheduled in January, 1988, and filed the corresponding certificate of
candidacy for the position. Objection to Pineda's being a candidate while
retaining his job in the PNOC-EDC was shortly thereafter registered by
Mayor Arturo Cornejos of Kananga, Leyte. The mayor communicated with
the PNOC-EDC thru Engr. Ernesto Patanao, Resident Manager, Tongonan
Geothermal Project to express the view that Pineda could not actively
participate in politics unless he officially resigned from PNOC-EDC. 1
Nothing seems to have resulted from this protest.
The local elections in Leyte, scheduled for January 1988, were reset
to and held on February 1, 1988. Pineda was among the official candidates
voted for, and eventually proclaimed elected to, the office of councilor.
Some vacillation appears to have been evinced by Pineda at about this
time. On February 8, 1988, he wrote to the COMELEC Chairman,
expressing his desire to withdraw from the political contest on account of
what he considered to be election irregularities; and on March 19, 1988, he
wrote to the Secretary of Justice seeking legal opinion on the question,
among others, of whether or not he was "considered automatically resigned
upon . . . filing of . . . (his) certificate of candidacy," and whether or not, in
case he was elected, he could "remain appointed to any corporate offspring
of a government-owned or controlled corporation." Nevertheless, Pineda
took his oath of office in June, 1988 as councilor-elect of the Municipality of
Kananga, Leyte. And despite so qualifying as councilor, and assuming his
duties as such, he continued working for PNOC-EDC as the latter's
Geothermal Construction Secretary, Engineering and Construction
Department, at Tongonan Geothermal Project, Ormoc City.

QUESTIONS: 1. Does the Civil Service Commission cover Pinedas


appointment? Explain.
2.Is he considered resigned from his employment
with the PNOC when he filed his certificatet of candidacy? Explain.

ANSWER no. 16: PNOC ENERGY DEV'T. CORP., ET AL. vs. NAT'L
LABOR RELATIONS COMMISSION, ET AL. G.R. No. 100947 May 31,
1993 1. CONSTITUTIONAL LAW; CIVIL SERVICE; GOVERNMENT-
OWNED OR CONTROLLED CORPORATIONS WITHOUT ORIGINAL
CHARTERS, NOT EMBRACED THEREIN. Section 2 (1), Article IX of
the 1987 Constitution provides as follows: "The civil service embraces all
branches, subdivisions, instrumentalities, and agencies of the Government,
including government-owned or controlled corporations with original
charters." Implicit in the provision is that government-owned or controlled
corporations without original charters i.e., organized under the general
law, the Corporation Code - are not comprehended within the Civil Service,
and their employees are not subject to Civil Service Law. So has this Court
construed the provision. (NASECO, et. al. v. NLRC, et al., 166 SCRA 122,
Lumanta, et. al. v. NLRC, et al., 170 SCRA 79, PNOC-EDC v. Leogardo, et.
al., 175 SCRA 29).
2. ID.; OMNIBUS ELECTION CODE; CANDIDATES HOLDING
APPOINTIVE OFFICE OR POSITION CONSIDERED IPSO FACTO
RESIGNED UPON FILING OF CERTIFICATE OF CANDIDACY; APPLIES
TO OFFICERS AND EMPLOYEES IN GOVERNMENT-OWNED AND
CONTROLLED CORPORATION WITH OR WITHOUT ORIGINAL
CHARTERS. When the Congress of the Philippines reviewed the
Omnibus Election Code of 1985, in connection with its deliberations on and
subsequent enactment of related and repealing legislation i.e., Republic
Acts Numbered 7166: "An Act Providing for Synchronized National and
Local Elections and for Electoral Reforms, Authorizing Appropriations
Therefor, and for Other Purposes" (effective November 26, 1991), 6646:
"An Act Introducing Additional Reforms in the Electoral System and for
Other Purposes" (effective January 5, 1988) and 6636: "An Act Resetting
the Local Elections, etc." (effective November 6, 1987), it was no doubt
aware that in light of Section 2(1), Article IX of the 1987 Constitution: (a)
government-owned or controlled corporations were of two (2) categories
those with original charters, and those organized under the general law
and (b) employees of these corporations were of two (2) kinds those
covered by the Civil Service Law, rules and regulations because employed
in corporations having original charters, and those not subject to Civil
Service Law but to the Labor Code because employed in said corporations
organized under the general law, or the Corporation Code. Yet Congress
made no effort to distinguish between these two classes of government-
owned or controlled corporations or their employees in the Omnibus
Election Code or subsequent related statutes, particularly as regards the
rule that an any employee "in government-owned or controlled
corporations, shall be considered ipso facto resigned from his office upon
the filing of his certificate of candidacy." What all this imports is that Section
66 of the Omnibus Election Code applies to officers and employees in
government-owned or controlled corporations, even those organized under
the general laws on incorporation and therefore not having an original or
legislative charter, and even if they do not fall under the Civil Service Law
but under the Labor Code. In other words, Section 66 constitutes just cause
for termination of employment in addition to those set forth in the Labor
Code, as amended.

Case No. 17. Petitioner Luis Malaluan and private respondent Joseph
Evangelista were both mayoralty candidates in the Municipality of
Kidapawan, North Cotabato, in the Synchronized National and Local
Elections held on May 11, 1992. Private respondent Joseph
Evangelista was proclaimed by the Municipal Board of Canvassers as
the duly elected Mayor for having garnered 10,498 votes as against
petitioners 9,792 votes. Evangelista was, thus, said to have a
winning margin of 706 votes. But, on May 22, 1992, petitioner filed an
election protest with the Regional Trial Court contesting 64 out of the
total 181 precincts of the said municipality. The trial court declared
petitioner as the duly elected municipal mayor of Kidapawan, North
Cotabato with a plurality of 154 votes. Acting without precedent, the
court found private respondent liable not only for Malaluans protest
expenses but also for moral and exemplary damages and attorneys
fees. On February 3, 1994, private respondent appealed the trial court
decision to the COMELEC.
Rule on the propriety of awarding moral and exemplary damages and
attorneys fees.
Answer no 17: NOT PROPER. What looms large as the issue in this case
is whether or not the COMELEC gravely abused its discretion in awarding
the aforecited damages in favor of private respondent.
The Omnibus Election Code provides that actual or compensatory
damages may be granted in all election contests or in quo
warrantoproceedings in accordance with law.[li][13] COMELEC Rules of
Procedure provide that in all election contests the Court may adjudicate
damages and attorneys fees as it may deem just and as established by the
evidence if the aggrieved party has included such claims in his
pleadings.[lii][14] This appears to require only that the judicial award of
damages be just and that the same be borne out by the pleadings and
evidence. The overriding requirement for a valid and proper award of
damages, it must be remembered, is that the same is in accordance with
law, specifically, the provisions of the Civil Code pertinent to damages.
Article 2199 of the Civil Code mandates that except as provided by law or
by stipulation, one is entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly proved. Such compensation
is referred to as actual or compensatory damages. The Civil Cod.e further
prescribes the proper setting for allowance of actual or compensatory
damages in the following provisions:
ART. 2201. In contracts and quasi-contracts, the damages for which the
obligor who acted in good faith is liable shall be those that are the natural
and probable consequences of the breach of the obligation, and which the
parties have foreseen or could have reasonably foreseen at the time the
obligation was constituted.
In case of fraud, bad faith, malice or wanton attitude, the obligor shall be
responsible for all damages which may be reasonably attributed to the non-
performance of the obligation.
ART. 2202. In crimes and quasi-delicts, the defendant shall be liable for all
damages which are the natural and probable consequences of the act or
omission complained of. It is not necessary that such damages have been
foreseen or could have reasonably been foreseen by the defendant.
Considering that actual or compensatory damages are appropriate only in
breaches of obligations in cases of contracts and quasi-contracts and on
the - occasion of crimes and quasi-delicts where the defendant may be
held liable for all damages the proximate cause of which is the act or
omission complained of, the monetary claim of a party in an election case
must necessarily be hinged on either a contract or a quasi-contract or a
tortious act or omission or a crime, in order to effectively recover actual or
compensatory damages.[liii][15] In the absence of any or all of these, the
claimant must be able to point out a specific provision of law authorizing a
money claim for election protest expenses against the losing party.[liv]
[16] For instance, the claimant may cite any of the following provisions of
the Civil Code under the chapter on human relations, which provisions
create obligations not by contract, crime or negligence, but directly by law:
ART. 19. Every person must in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.
ART. 20. Every person who, contrary to law, willfully or negligently causes
damage to another, shall indemnify the latter for the same.
xxx xxx xxx
ART. 32. Any public officer or employee, or any private individual, who
directly or indirectly obstructs, defeats, violates or in any manner impedes
or impairs any of the following rights and liberties of another person shall
be liable to the latter for damages:
xxx xxx xxx
(5) Freedom of suffrage;
xxx xxx xxx
In any of the cases referred to in this article, whether or not the defendants
act or omission constitutes a criminal offense, the aggrieved party has a
right to commence an entirely separate and distinct civil action for
damages, and for other relief. x x x[lv][17]
Claimed as part of the damages to which private respondent is allegedly
entitled to, is P169,456.00 constituting salary and other emoluments from
March, 1994 to April, 1995 that would have accrued to him had there not
been an execution of the trial courts decision pending appeal therefrom in
the COMELEC.
The long-standing rule in this jurisdiction is that notwithstanding his
subsequent ouster as a result of an election protest, an elective official who
has been proclaimed by the COMELEC as winner in an electoral contest
and who assumed office and entered into the performance of the duties of
that office, is entitled to the compensation, emoluments and allowances
legally provided for the position.[lvi][18] We ratiocinated in the case of
Rodriguez vs. Tan that:
This is as it should be. This is in keeping with the ordinary course of
events. This is simple justice. The emolument must go to the person who
rendered the service unless the contrary is provided. There is no averment
in the complaint that he is linked with any irregularity vitiating his
election. This is the policy and the rule that has been followed consistently
in this jurisdiction in connection with positions held by persons who had
been elected thereto but were later ousted as a result of an election
protest. The right of the persons elected to compensation during their
incumbency has always been recognized. We cannot recall of any
precedent wherein the contrary rule has been upheld.[lvii][19]
In his concurring opinion in the same case, however, Justice Padilla equally
stressed that, while the general rule is that the ousted elective official is not
obliged to reimburse the emoluments of office that he had received before
his ouster, he would be liable for damages in case he would be found
responsible for any unlawful or tortious acts in relation to his
proclamation. We quote the pertinent portion of that opinion for emphasis:
Nevertheless, if the defendant, directly or indirectly, had committed
unlawful or tortious acts which led to and resulted in his proclamation as
senator-elect, when in truth and in fact he was not so elected, he would be
answerable for damages. In that event the salary, fees and emoluments
received by or paid to him during his illegal incumbency would be a proper
item of recoverable damage.[lviii][20]
The criterion for a justifiable award of election protest expenses and
salaries and emoluments, thus, remains to be the existence of a pertinent
breach of obligations arising from contracts or quasi-contracts, tortious
acts, crimes or a specific legal provision authorizing the money claim in the
context of election cases. Absent any of these, we could not even begin to
contemplate liability for damages in election cases, except insofar as
attorneys fees are concerned, since the Civil Code enumerates the specific
instances when the same may be awarded by the court.
ART. 2208. In the absence of stipulation, attorneys fees and expenses of
litigation, other than judicial costs, cannot be recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendants act or omission has compelled the plaintiff to
litigate with third persons or to incur expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against the
plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing to
satisfy the plaintiffs plainly valid, just and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers and
skilled workers;
(8) In actions for indemnity under workmens compensation and employers
liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable that
attorneys fees and expenses of litigation should be recovered.[lix][21]
Given the aforecited laws, and jurisprudence on the matter at issue, let us
now look into the basis of respondent COMELEC for awarding actual
damages to private respondent in the form of reimbursement for attorneys
fees, actual expenses for xerox copies, and salary and other emoluments
that should have accrued to him from March, 1994 to April, 1995 had the
RTC not issued an order for execution pending appeal.
The First Division of the COMELEC ruled on private respondents claim for
actual or compensatory damages in this wise:
x x x under the present legal setting, it is more difficult than in the past to
secure an award of actual or compensatory damages either against the
protestant or the protestee because of the requirements of the law.
In the instant case, however, We are disposed to conclude that the election
protest filed by the protestant is clearly unfounded. As borne out by the
results of the appreciation of ballots conducted by this Commission,
apparently the protest was filed in bad faith without sufficient cause or has
been filed for the sole purpose of molesting the protestee-appellant for
which he incurred expenses. The erroneous ruling of the Court which
invalidated ballots which were clearly valid added more injury to the
protestee-appellant. This would have been bearable since he was able to
perfect his appeal to this Commission. The final blow, however, came when
the Court ordered the execution of judgment pending appeal which, from all
indications, did not comply with the requirements of Section 2, Rule 39 of
the Rules of Court. There was no good and special reason at all to justify
the execution ofjudgment pending appeal because the protestees winning
margin was 149 votes while that of the protestant - after the Court declared
him a winner - was only a margin of 154 votes. Clearly, the order of
execution of judgment pending appeal was issued with grave abuse of
discretion.
For these reasons, protestee-appellant seeks to recover the following:
1. Actual damages representing attorneys fees for the new counsel who
handled the Appeal and the Petition for Certiorari before the Court of
Appeals x x x -P3 72, 5 00.00
2. Actual expenses for xerox copying of Appellants Brief and the annexes
(14 copies at P 1.50 x x x -P11,235.00
3. Actual expenses for xerox copying of ballots x x x - P3,919.20
4. Actual damages for loss of salary and other emoluments since March
1994 as per attached Certification issued by the Municipal Account of
Kidapawan x x x - P96,832.00 (up to October 1994 only)
Under Article 2208 of the New Civil Code attorneys fees and expenses of
litigation can be recovered (as actual damages) in the case of clearly
unfounded civil action or proceeding. And, while the case of Eulogio
Rodriguez, Sr. vs. Carlos Tan (91 Phil. 724) disallowed recovery of salaries
and allowances (as damages) from elected officials who were later ousted,
under the theory that persons elected has (sic) a right to compensation
during their incumbency, the instant case is different. The protestee-
appellant was the one elected. He was ousted not by final judgment but by
an order of execution pending appeal which was groundless and issued
with grave abuse of discretion. Protestant-appellee occupied the position
in an illegal manner as a usurper and, not having been elected to the office,
but merely installed through a baseless court order, he certainly had no
right to the salaries and emoluments of the office.
Actual damages in the form of reimbursement for attorneys fees (P3
72,500.00), actual expenses for xerox copies (P15,154.00), unearned
salary and other emoluments from March 1994 to April 1995 or 14 months
at P12,104.00 a month (P169,456.00), totalled P557,110.00. To (sic) this
amount, however, P3 00,000.00 representing that portion of attorneys fees
denominated as success fee must be deducted this being premised on a
contingent event the happening of which was uncertain from the
beginning. Moral damages and exemplary damages claimed are, of
course, disallowed not falling within the purview of Section 259 of the
Omnibus Election Code.
It goes without saying that if the protestant-appellee fails to pay the actual
damages of P257,110.00, the amount will be assessed, levied and
collected from the bond of P500,000.00 which he put up before the Court
as a condition for the issuance of the order of execution of judgment
pending appeal.[lx][22]
Petitioner filed a motion for reconsideration of the aforecited decision on
March 29, 1995. The COMELEC en banc, however, did not find any new
matter substantial in nature, persuasive in character or sufficiently
provocative to compel reconsideration of said decision and accordingly
affirmed in toto the said decision. Hence, this petition raises, among
others, the issue now solely remaining and in need of final adjudication in
view of the mootness of the other issues anent petitioners right to the
contested office the term for which has already expired.
We have painstakingly gone over the records of this case and we can
attribute to petitioner no breach of contract or quasi-contract; or tortious act
nor crime that may make him liable for actual damages. Neither has
private respondent been able to point out to a specific provision of law
authorizing a money claim for election protest expenses against the losing
party. [lxi][23]
We find respondent COMELECs reasoning in awarding the damages in
question to be fatally flawed. The COMELEC found the election protest
filed by the petitioner to be clearly unfounded because its own appreciation
of the contested ballots yielded results contrary to those of the trial
court. Assuming, ex gratia argumentis, that this is a reasonable
observation not without basis, it is nonetheless fallacious to conclude a
malicious intention on the part of petitioner to molest private respondent on
the basis of what respondent COMELEC perceived as an erroneous ruling
of the trial court. In other words, the actuations of the trial court, after the
filing of a case before it, are its own, and any alleged error on its part does
not, in the absence of clear proof, make the suit clearly unfounded for
which the complainant ought to be penalized. Insofar as the award of
protest expenses and attorneys fees are concerned, therefore we find
them to have been awarded by respondent COMELEC without basis, the
election protest not having been a clearly unfounded one under the
aforementioned circumstances.
Respondent COMELEC also found the order granting execution of
judgment pending appeal to be defective because of alleged non-
compliance with the requirement that there be a good and special
reason[lxii][24] to justify execution pending appeal. We, however, find that
the trial court acted judiciously in the exercise of its prerogatives under the
law in issuing the order granting execution pending appeal. First, it should
be noted that the applicability of the provisions of the Rules of Court,
relating to execution pending appeal, has ceased to be debatable after we
definitively ruled in Garcia vs. de Jesus[lxiii][25] that Section 2, Rule 39 of
the Rules of Court, which allows Regional Trial Courts to order executions
pending appeal upon good reasons stated in a special order, may be made
to apply by analogy or suppletorily to election contests decided by
them.[lxiv][26] It is not disputed that petitioner filed a bond in the amount of
P500,000.00 as required under the Rules of Court.
It is also now a settled rule that as much recognition should be given to the
value of the decision of a judicial body as a basis for the right to assume
office as that given by law to the proclamation made by the Board of
Canvassers.[lxv][27]
x x x Why should the proclamation by the board of canvassers suffice as
basis of the right to assume office, subject to future contingencies attendant
to a protest, and not the decision of a court of justice? Indeed x x x the
board of canvassers is composed of persons who are less technically
prepared to make an accurate appreciation of the ballots, apart from their
being more apt to yield extraneous considerations x x x the board must act
summarily, practically raising (sic) against time, while, on the other hand,
the judge has the benefit of all the evidence the parties can offer and of
admittedly better technical preparation and background, apart from his
being allowed ample time for conscientious study and mature deliberation
before rendering judgment x x x.[lxvi][28]
Without evaluating the merits of the trial courts actual appreciation of the
ballots contested in the election protest, we note on the face of its decision
that the trial court relied on the findings of the National Bureau of
Investigation (NBI) handwriting experts which findings private respondent
did not even bother to rebut. We thus see no reason to disregard the
presumption of regularity in the performance of official duty on the part of
the trial court judge. Capping this combination of circumstances which
impel the grant of immediate execution is the undeniable urgency involved
in the political situation in the Municipality of Kidapawan, North
Cotabato. The appeal before the COMELEC would undoubtedly cause the
political vacuum in said municipality to persist, and so the trial court
reasonably perceived execution pending appeal to be warranted and
justified. Anyway, the bond posted by petitioner could cover any damages
suffered by any aggrieved party. It is true that mere posting of a bond is not
enough reason to justify execution pending appeal, but the nexus of
circumstances aforechronicled considered together and in relation to one
another, is the dominant consideration for the execution pending appeal.
[lxvii][29]
Finally, we deem the award of salaries and other emoluments to be
improper and lacking legal sanction. Respondent COMELEC ruled that
inapplicable in the instant case is the ruling in Rodriguez vs. Tan[lxviii]
[30] because while in that case the official ousted was the one proclaimed
by the COMELEC, in the instant case, petitioner was proclaimed winner
only by the trial court and assumed office by virtue of an order granting
execution pending appeal. Again, respondent COMELEC sweepingly
concluded, in justifying the award of damages, that since petitioner was
adjudged the winner in the elections only by the trial court and assumed the
functions of the office on the strength merely of an order granting execution
pending appeal, the petitioner occupied the position in an illegal manner as
a usurper.
We hold that petitioner was not a usurper because, while a usurper is one
who undertakes to act officially without any color of right,[lxix][31] the
petitioner exercised the duties of an elective office under color of election
thereto.[lxx][32] It matters not that it was the trial court and not the
COMELEC that declared petitioner as the winner, because both, at different
stages of the electoral process, have the power to so proclaim winners in
electoral contests. At the risk of sounding repetitive, if only to emphasize
this point, we must reiterate that the decision of a judicial body is no less a
basis than the proclamation made by the COMELEC-convened Board of
Canvassers for a winning candidates right to assume office, for both are
undisputedly legally sanctioned. We deem petitioner, therefore, to be a de
facto officer who, in good faith, has haa possession of the office and had
discharged the duties pertaining thereto[lxxi][33] and is thus legally
entitled to the emoluments of the office.[lxxii][34]
To recapitulate, Section 259 of the Omnibus Election Code only provides
for the granting in election cases of actual and compensatory damages in
accordance with law. The victorious party in an election case cannot be
indemnified for expenses which he has incurred in an electoral contest in
the absence of a wrongful act or omission or breach of obligation clearly
attributable to the losing party. Evidently, if any damage had been suffered
by private respondent due to the execution ofjudgment pending appeal,
that damage may be said to be equivalent to damnum absque
injuria, which is, damage without injury, or damage or injury inflicted without
injustice, or loss or damage without violation of a legal right, or a wrong
done to a man for which the law provides no remedy.[lxxiii][35]
MALALUAN V. COMELEC, 120193, MARCH 6, 1996

CASE No. 18. Petitioner was proclaimed Mayor of Gloria, Oriental


Mindoro during the May 8, 1995 elections.
In the same elections, private respondent was proclaimed Vice-
Mayor of the same municipality.
On May 19, 1995, petitioners rival candidate, the late Nicolas M.
Jamilla, filed an election protest [lxxiv][1] before the Regional Trial Court
of Pinamalayan, Oriental Mindoro.[lxxv][2]
During the pendency of said contest, Jamilla died. [lxxvi][3] Four days
after such death or on December 19, 1995, the trial court dismissed
the election protest ruling as it did that [a]s this case is personal, the
death of the protestant extinguishes the case itself. The issue or
issues brought out in this protest have become moot and
academic.[lxxvii][4]
On January 9, 1995, private respondent learned about the
dismissal of the protest from one Atty. Gaudencio S. Sadicon, who, as
the late Jamillas counsel, was the one who informed the trial court of
his clients demise.
On January 15, 1996, private respondent filed his Omnibus
Petition/Motion (For Intervention and/or Substitution with Motion for
Reconsideration).[lxxviii][5] Opposition thereto was filed by petitioner on
January 30, 1996.[lxxix][6]
In an Order dated February 14, 1996, [lxxx][7] the trial court denied
private respondents Omnibus Petition/Motion and stubbornly held
that an election protest being personal to the protestant, is ipso
facto terminated by the latters death
Question: Is the ruling of the RTC correct?

Answer no 18: It is true that a public office is personal to the public officer
and is not a property transmissible to his heirs upon death. [lxxxi][9]Thus,
applying the doctrine of actio personalis moritur cum persona, upon the
death of the incumbent, no heir of his may be allowed to continue holding
his office in his place.
But while the right to a public office is personal and exclusive to the
public officer, an election protest is not purely personal and exclusive to the
protestant or to the protestee such that the death of either would oust the
court of all authority to continue the protest proceedings.
An election contest, after all, involves not merely conflicting private
aspirations but is imbued with paramount public interests. As we have held
in the case of Vda. de De Mesa v. Mencias:[lxxxii][10]
x x x. It is axiomatic that an election contest, involving as it does not
only the adjudication and settlement of the private interests of the rival
candidates but also the paramount need of dispelling once and for all the
uncertainty that beclouds the real choice of the electorate with respect to
who shall discharge the prerogatives of the offices within their gift, is a
proceeding imbued with public interest which raises it onto a plane over
and above ordinary civil actions. For this reason, broad perspectives of
public policy impose upon courts the imperative duty to ascertain by all
means within their command who is the real candidate elected in as
expeditious a manner as possible, without being fettered by technicalities
and procedural barriers to the end that the will of the people may not be
frustrated (Ibasco vs. Ilao, et al., G.R. L-17512, December 29, 1960;
Reforma vs. De Luna, G.R. L-13242, July 31, 1958). So inextricably
intertwined are the interests of the contestants and those of the public that
there can be no gainsaying the logic of the proposition that even the
voluntary cessation in office of the protestee not only does not ipso
facto divest him of the character of an adversary in the contest inasmuch
as he retains a party interest to keep his political opponent out of the office
and maintain therein his successor, but also does not in any manner impair
or detract from the jurisdiction of the court to pursue the proceeding to its
final conclusion (De Los Angeles vs. Rodriguez, 46 Phil. 595, 597;
Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs. Maramba, G.R. L-
13206).
Upon the same principle, the death of the protestee De Mesa did not
abate the proceedings in the election protest filed against him, and it may
stated as a rule that an election contest survives and must be prosecuted
to final judgment despite the death of the protestee. [lxxxiii][11]
The death of the protestant, as in this case, neither constitutes a ground
for the dismissal of the contest nor ousts the trial court of its jurisdiction to
decide the election contest. Apropos is the following pronouncement of this
court in the case of Lomugdang v. Javier:[lxxxiv][12]
Determination of what candidate has been in fact elected is a matter
clothed with public interest, wherefore, public policy demands that an
election contest, duly commenced, be not abated by the death of the
contestant. We have squarely so rule in Sibulo Vda. de Mesa vs. Judge
Mencias, G.R. No. L-24583, October 29, 1966, in the same spirit that led
this Court to hold that the ineligibility of the protestant is not a defense
(Caesar vs. Garrido, 53 Phil. 57), and that the protestees cessation in
office is not a ground for the dismissal of the contest nor detract the Courts
jurisdiction to decide the case (Angeles vs. Rodriguez, 46 Phil. 595;
Salcedo vs. Hernandez, 62 Phil. 584).[lxxxv][13]
The asseveration of petitioner that private respondent is not a real party
in interest entitled to be substituted in the election protest in place of the
late Jamilla, is utterly without legal basis. Categorical was our ruling
in Vda. de Mesa and Lomugdang that:
x x x the Vice Mayor elect has the status of a real party in interest in
the continuation of the proceedings and is entitled to intervene therein. For
if the protest succeeds and the protestee is unseated, the Vice-Mayor
succeeds to the office of Mayor that becomes vacant if the one duly elected
can not assume the post.[lxxxvi][14]
To finally dispose of this case, we rule that the filing by private
respondent of his Omnibus Petition/Motion on January 15, 1996, well within
a period of thirty days from December 19, 1995 when Jamillas counsel
informed the trial court of Jamillas death, was in compliance with Section
17, Rule 3 of the Revised Rules of Court. Since the Rules of Court, though
not generally applicable to election cases, may however be applied by
analogy or in a suppletory character,[lxxxvii][15]private respondent was correct
to rely thereon.
The above jurisprudence is not ancient; in fact these legal moorings have
been recently reiterated in the 1991 case of De la Victoria vs. COMELEC.
[lxxxviii][16]
If only petitioners diligence in updating himself with case law is as
spirited as his persistence in pursuing his legal asseverations up to the
highest court of the land, no doubt further derailment of the election protest
proceedings could have been avoided. CASTRO V. COMELEC , 125249,
FEB 1997

CASE NO. 19. Petitioner Arsenio A. Latasa, was elected mayor of the
Municipality of Digos, Davao del Sur in the elections of 1992, 1995,
and 1998. During petitioners third term, the Municipality of Digos
was declared a component city, to be known as the City of Digos. A
plebiscite conducted on September 8, 2000 ratified Republic Act No.
8798 entitled, An Act Converting the Municipality of Digos, Davao del
Sur Province into a Component City to be known as the City of
Digos or the Charter of the City of Digos. This event also marked
the end of petitioners tenure as mayor of the Municipality of
Digos. However, under Section 53, Article IX of the Charter, petitioner
was mandated to serve in a hold-over capacity as mayor of the new
City of Digos. Hence, he took his oath as the city mayor.
On February 28, 2001, petitioner filed his certificate of candidacy for
city mayor for the May 14, 2001 elections. He stated therein that he is
eligible therefor, and likewise disclosed that he had already served for
three consecutive terms as mayor of the Municipality of Digos and is
now running for the first time for the position of city mayor.
Question: Is Latasa eligible to run as city mayor?
ANSWER no 19: As seen in the aforementioned provisions, this Court
notes that the delineation of the metes and bounds of the City of Digos did
not change even by an inch the land area previously covered by the
Municipality of Digos. This Court also notes that the elective officials of the
Municipality of Digos continued to exercise their powers and functions until
elections were held for the new city officials.
True, the new city acquired a new corporate existence separate and
distinct from that of the municipality. This does not mean, however, that for
the purpose of applying the subject Constitutional provision, the office of
the municipal mayor would now be construed as a different local
government post as that of the office of the city mayor. As stated earlier, the
territorial jurisdiction of the City of Digos is the same as that of the
municipality. Consequently, the inhabitants of the municipality are the
same as those in the city. These inhabitants are the same group of voters
who elected petitioner Latasa to be their municipal mayor for three
consecutive terms. These are also the same inhabitants over whom he
held power and authority as their chief executive for nine years.
This Court must distinguish the present case from previous cases ruled
upon this Court involving the same Constitutional provision.
In Borja, Jr. v. COMELEC, [39][18] the issue therein was whether a vice-
mayor who became the mayor by operation of law and who served the
remainder of the mayors term should be considered to have served a term
in that office for the purpose of the three-term limit under the
Constitution. Private respondent in that case was first elected as vice-
mayor, but upon the death of the incumbent mayor, he occupied the latters
post for the unexpired term. He was, thereafter, elected for two more
terms. This Court therein held that when private respondent occupied the
post of the mayor upon the incumbents death and served for the remainder
of the term, he cannot be construed as having served a full term as
contemplated under the subject constitutional provision. The term served
must be one for which [the official concerned] was elected.
It must also be noted that in Borja, the private respondent therein,
before he assumed the position of mayor, first served as the vice-mayor of
his local government unit. The nature of the responsibilities and duties of
the vice-mayor is wholly different from that of the mayor. The vice-mayor
does not hold office as chief executive over his local government unit. In
the present case, petitioner, upon ratification of the law converting the
municipality to a city, continued to hold office as chief executive of the same
territorial jurisdiction. There were changes in the political and economic
rights of Digos as local government unit, but no substantial change
occurred as to petitioners authority as chief executive over the inhabitants
of Digos.
In Lonzanida v. COMELEC,[40][19] petitioner was elected and served two
consecutive terms as mayor from 1988 to 1995. He then ran again for the
same position in the May 1995 elections, won and discharged his duties as
mayor. However, his opponent contested his proclamation and filed an
election protest before the Regional Trial Court, which ruled that there was
a failure of elections and declared the position of mayor vacant. The
COMELEC affirmed this ruling and petitioner acceded to the order to
vacate the post. During the May 1998 elections, petitioner therein again
filed his certificate of candidacy for mayor. A petition to disqualify him was
filed on the ground that he had already served three consecutive
terms. This Court ruled, however, that petitioner therein cannot be
considered as having been duly elected to the post in the May 1995
elections, and that said petitioner did not fully serve the 1995-1998 mayoral
term by reason of involuntary relinquishment of office.
In the present case, petitioner Latasa was, without a doubt, duly elected
as mayor in the May 1998 elections. Can he then be construed as having
involuntarily relinquished his office by reason of the conversion of Digos
from municipality to city? This Court believes that he did involuntarily
relinquish his office as municipal mayor since the said office has been
deemed abolished due to the conversion. However, the very instant he
vacated his office as municipal mayor, he also assumed office as city
mayor. Unlike in Lonzanida, where petitioner therein, for even just a short
period of time, stepped down from office, petitioner Latasa never ceased
from acting as chief executive of the local government unit. He never
ceased from discharging his duties and responsibilities as chief executive
of Digos.
In Adormeo v. COMELEC,[41][20] this Court was confronted with the issue
of whether or not an assumption to office through a recall election should
be considered as one term in applying the three-term limit rule. Private
respondent, in that case, was elected and served for two consecutive terms
as mayor. He then ran for his third term in the May 1998 elections, but lost
to his opponent. In June 1998, his opponent faced recall proceedings and
in the recall elections of May 2000, private respondent won and served for
the unexpired term. For the May 2001 elections, private respondent filed
his certificate of candidacy for the office of mayor. This was questioned on
the ground that he had already served as mayor for three consecutive
terms. This Court held therein that private respondent cannot be construed
as having been elected and served for three consecutive terms. His loss in
the May 1998 elections was considered by this Court as an interruption in
the continuity of his service as mayor. For nearly two years, private
respondent therein lived as a private citizen. The same, however, cannot
be said of petitioner Latasa in the present case.
Finally, in Socrates v. COMELEC,[42][21] the principal issue was whether
or not private respondent Edward M. Hagedorn was qualified to run during
the recall elections. Therein respondent Hagedorn had already served for
three consecutive terms as mayor from 1992 until 2001 and did not run in
the immediately following regular elections. On July 2, 2002, the barangay
officials of Puerto Princesa convened themselves into a Preparatory Recall
Assembly to initiate the recall of the incumbent mayor, Victorino Dennis M.
Socrates. On August 23, 2002, respondent Hagedorn filed his certificate of
candidacy for mayor in the recall election. A petition for his disqualification
was filed on the ground that he cannot run for the said post during the
recall elections for he was disqualified from running for a fourth consecutive
term. This Court, however, ruled in favor of respondent Hagedorn, holding
that the principle behind the three-term limit rule is to prevent
consecutiveness of the service of terms, and that there was in his case a
break in such consecutiveness after the end of his third term and before the
recall election.
It is evident that in the abovementioned cases, there exists a rest period
or a break in the service of the local elective official. InLonzanida,
petitioner therein was a private citizen a few months before the next
mayoral elections. Similarly, in Adormeo and Socrates, the private
respondents therein lived as private citizens for two years and fifteen
months respectively. Indeed, the law contemplates a rest period during
which the local elective official steps down from office and ceases to
exercise power or authority over the inhabitants of the territorial jurisdiction
of a particular local government unit.
This Court reiterates that the framers of the Constitution specifically
included an exception to the peoples freedom to choose those who will
govern them in order to avoid the evil of a single person accumulating
excessive power over a particular territorial jurisdiction as a result of a
prolonged stay in the same office. To allow petitioner Latasa to vie for the
position of city mayor after having served for three consecutive terms as a
municipal mayor would obviously defeat the very intent of the framers when
they wrote this exception. Should he be allowed another three consecutive
terms as mayor of the City of Digos, petitioner would then be possibly
holding office as chief executive over the same territorial jurisdiction and
inhabitants for a total of eighteenconsecutive years. This is the very
scenario sought to be avoided by the Constitution, if not abhorred by it.
Finally, respondent Sunga claims that applying the principle in Labo v.
COMELEC,[43][22] he should be deemed the mayoralty candidate with the
highest number of votes. On the contrary, this Court held inLabo that the
disqualification of a winning candidate does not necessarily entitle the
candidate with the highest number of votes to proclamation as the winner
of the elections. As an obiter, the Court merely mentioned that the rule
would have been different if the electorate, fully aware in fact and in law of
a candidates disqualification so as to bring such awareness within the
realm of notoriety, would nonetheless cast their votes in favor of the
ineligible candidate. In such case, the electorate may be said to have
waived the validity and efficacy of their votes by notoriously misapplying
their franchise or throwing away their votes, in which case, the eligible
candidate obtaining the next higher number of votes may be deemed
elected. The same, however, cannot be said of the present case.
This Court has consistently ruled that the fact that a plurality or a majority of
the votes are cast for an ineligible candidate at a popular election, or that a
candidate is later declared to be disqualified to hold office, does not entitle
the candidate who garnered the second highest number of votes to be
declared elected. The same merely results in making the winning
candidates election a nullity.[44][23] In the present case, moreover, 13,650
votes were cast for private respondent Sunga as against the 25,335 votes
cast for petitioner Latasa.[45][24] The second placer is obviously not the
choice of the people in that particular election. In any event, a permanent
vacancy in the contested office is thereby created which should be filled by
succession.[46][25] LATASA V. COMELEC, 154829, DEC. 10, 2003

CASE NO. 20. Distinguish domicile from residence within the


framework of election law.
Answer no 20: DOMINO V. COMELEC, 134015, JULY 19, 1999 It is
doctrinally settled that the term residence, as used in the law prescribing the
qualifications for suffrage and for elective office, means the same thing as
domicile, which imports not only an intention to reside in a fixed place but also
personal presence in that place, coupled with conduct indicative of such intention.
[lxxxix][21]
Domicile denotes a fixed permanent residence to which, whenever absent
for business, pleasure, or some other reasons, one intends to return.[xc]
[22]
Domicile is a question of intention and circumstances. In the consideration of
circumstances, three rules must be borne in mind, namely: (1) that a man must
have a residence or domicile somewhere; (2) when once established it remains
until a new one is acquired; and (3) a man can have but one residence or domicile
at a time.[xci][23]
Records show that petitioners domicile of origin was Candon, Ilocos
Sur[xcii][24] and that sometime in 1991, he acquired a new domicile of choice
at 24 Bonifacio St. Ayala Heights, Old Balara, Quezon City, as shown by his
certificate of candidacy for the position of representative of the 3 rd District of
Quezon City in the May 1995 election. Petitioner is now claiming that he
had effectively abandoned his residence in Quezon City and has
established a new domicile of choice at the Province of Sarangani.
A persons domicile once established is considered to continue and
will not be deemed lost until a new one is established. [xciii][25] To successfully
effect a change of domicile one must demonstrate an actual removal or an
actual change of domicile; a bona fide intention of abandoning the former
place of residence and establishing a new one and definite acts which
correspond with the purpose.[xciv][26] In other words, there must basically
be animus manendi coupled with animus non revertendi. The purpose to
remain in or at the domicile of choice must be for an indefinite period of
time; the change of residence must be voluntary; and the residence at the
place chosen for the new domicile must be actual. [xcv][27]
It is the contention of petitioner that his actual physical presence in
Alabel, Sarangani since December 1996 was sufficiently established by the
lease of a house and lot located therein in January 1997 and by the
affidavits and certifications under oath of the residents of that place that
they have seen petitioner and his family residing in their locality.
While this may be so, actual and physical is not in itself sufficient to
show that from said date he had transferred his residence in that place. To
establish a new domicile of choice, personal presence in the place must be
coupled with conduct indicative of that intention. While residence simply
requires bodily presence in a given place, domicile requires not only such
bodily presence in that place but also a declared and probable intent to
make it ones fixed and permanent place of abode, ones home. [xcvi][28]
As a general rule, the principal elements of domicile, physical presence
in the locality involved and intention to adopt it as a domicile, must concur
in order to establish a new domicile. No change of domicile will result if
either of these elements is absent. Intention to acquire a domicile without
actual residence in the locality does not result in acquisition of domicile, nor
does the fact of physical presence without intention. [xcvii][29]
The lease contract entered into sometime in January 1997, does not
adequately support a change of domicile. The lease contract may be
indicative of DOMINOs intention to reside in Sarangani but it does not
engender the kind of permanency required to prove abandonment of ones
original domicile. The mere absence of individual from his permanent
residence, no matter how long, without the intention to abandon it does not
result in loss or change of domicile. [xcviii][30] Thus the date of the contract of
lease of a house and lot located in the province of Sarangani, i.e., 15
January 1997, cannot be used, in the absence of other circumstances, as
the reckoning period of the one-year residence requirement.
Further, Dominos lack of intention to abandon his residence in Quezon
City is further strengthened by his act of registering as voter in one of the
precincts in Quezon City. While voting is not conclusive of residence, it
does give rise to a strong presumption of residence especially in this case
where DOMINO registered in his former barangay. Exercising the right of
election franchise is a deliberate public assertion of the fact of residence,
and is said to have decided preponderance is a doubtful case upon the
place the elector claims as, or believes to be, his residence. [xcix][31] The fact
that a party continuously voted in a particular locality is a strong factor in
assisting to determine the status of his domicile. [c][32]
His claim that his registration in Quezon City was erroneous and was
caused by events over which he had no control cannot be sustained. The
general registration of voters for purposes of the May 1998 elections was
scheduled for two (2) consecutive weekends, viz.: June 14, 15, 21, and 22.
[ci][33]

While, Dominos intention to establish residence in Sarangani can be


gleaned from the fact that be bought the house he was renting on
November 4, 1997, that he sought cancellation of his previous registration
in Quezon City on 22 October 1997, [cii][34] and that he applied for transfer of
registration from Quezon City to Sarangani by reason of change of
residence on 30 August 1997, [ciii][35] DOMINO still falls short of the one year
residency requirement under the Constitution.
In showing compliance with the residency requirement, both intent and
actual presence in the district one intends to represent must satisfy the
length of time prescribed by the fundamental law.[civ][36] Dominos failure to
do so rendered him ineligible and his election to office null and void. [cv][37]

End of the examination